Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Super. Ct. No. SCD199364. Peter C. Deddeh, Judge.
NARES, J.
In October 2006 Quoc Dang Kien Huynh was convicted of one count of vandalism in an amount over $400 (Pen. Code, § 594, subd. (a)(b)(1)). Huynh also admitted that he had four "no probation" priors (Pen. Code, § 1203, subd. (e)(4)), and a prison prior (Pen. Code, §§ 667.5, subd. (b), 668).
At sentencing, the court imposed the middle term of two years on the vandalism conviction, plus a one-year consecutive sentence for the prison prior conviction, for a total prison term of three years. On appeal, Huynh asserts that the court erred by (1) excluding evidence that the victim of the vandalism had a character for violence; and (2) instructing the jury under Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 372 on flight as consciousness of guilt.
FACTUAL BACKGROUND
A. People's Case
On May 30, 2006, Edmund Feley was driving a 1997 Mercury Mountaineer and pulled out of a Vons parking lot onto Camino Ruiz. He checked for oncoming traffic, confirmed that he had a clear lane to turn into and turned left into that lane. After he turned, he heard a distant car horn. Feley noticed Huynh's car approximately 150 feet back, in a different lane. Feley approached a red light, looked in his rear view mirror, and noticed Huynh's car was now directly behind him. At the intersection of Camino Ruiz and Westmore, Huynh cut Feley off, forcing Feley into the left turn lane. As Huynh and he waited at a red light, Feley rolled down his window and asked Huynh what his problem was. Huynh reached over to the passenger side, reached into the glove box and looked down on the floor. A female, who was sitting in the passenger seat, told Huynh, "Don't, no, no, don't do it." Huynh got out of his car and smashed out two of Feley's rear passenger side windows. Huynh looked through his front passenger window, holding an orange "Club" steering wheel locking device over his head like a baseball batter ready to swing, and said, "Hey, nigger, what you going to do about it now, huh nigger?" Feley could see the words "The Club" written on the object in Huynh's hands.
Huynh then returned to his car. He looked at Feley, and when the light turned green, he drove off.
Feley followed Huynh in an effort to get his license plate number and called 911 on his cell phone. Feley gave Huynh's license plate number to the 911 operator. At one point during the pursuit, Huynh got out of his car again and raised the club over his head as if he were holding a bat ready to swing. Feley told Huynh he was on the phone with police and held his cell phone out the car window to show Huynh that the police were on the line. Huynh then turned around and went back to his car. Feley continued to follow Huynh, giving his location to police, until the police responded.
San Diego Police Department Officer Stephen Thorn was one of several officers who responded. Officer Thorn looked at Feley's car and noticed broken windows on the passenger side and green paint and a dent on the passenger side door. Officer Thorn saw a large amount of broken glass inside the car, mostly in the back seat. One window had a big hole in it and shattered glass that had not yet fallen out. When Officer Thorn searched Huynh's car he did not find a steering wheel locking device, but did find a large screwdriver with an orange handle and a crowbar in the front passenger area of Huynh's car.
B. Defense Case
Tien Nguyen, Huynh's girlfriend and passenger in his car during the incident, testified that Huynh was driving on Camino Ruiz when Feley turned into the same lane as them, almost hitting them. Huynh had to swerve his car to avoid a collision with Feley. When both cars were stopped at a traffic light next to each other at Camino Ruiz and Westmore, Feley and Huynh engaged in cursing, giving the middle finger, and yelling back and forth. Nguyen told Huynh to "just let it go." Feley got out of his car, stood next to Huynh's door, yelled at him that he was a "little punk kid," and pulled Huynh's shirt by the collar. Huynh tried to get out of his car, but Feley's car was too close and Huynh's door hit Feley's car. Huynh never got out of the car and did not smash Feley's windows.
Feley got back in his car, and when the light turned green he followed them. At first Huynh was driving at normal speed. When Feley started to get very close to Huynh's car, Huynh sped up and tried to lose him. Huynh got on the I-15 freeway and Feley was close behind the entire time.
Huynh and Nguyen did not call the police because Huynh was on parole. She spoke to police after the incident, but did not tell them that Feley got out of his car. She also did not tell them that Feley had cursed at Huynh. Nguyen could not tell if Feley's windows were smashed out. The tools found in Huynh's car belonged to her brother. Huynh had used them to fix a flat tire.
DISCUSSION
I. EXCLUSION OF EVIDENCE OF ALLEGED VIOLENCE OF VICTIM
A. Background
The prosecution filed a motion to exclude declarations filed by Feley's wife in family court in support of a temporary restraining order (TRO). The defense sought to introduce the declarations, or testimony from Feley's wife, to support their defense that Feley was the aggressor and that Huynh had left the scene in an attempt to get way from him. The defense argued the evidence should be admitted under Evidence Code section 1103, subdivision (a)(1) (section 1103(a)(1)) to prove Feley's character for violence.
All further statutory references are to the Evidence Code.
The People responded that the evidence was hearsay, not relevant to the issue of whether Huynh committed vandalism, and more prejudicial than probative under section 352.
The court found that the evidence was inadmissible unless Huynh's defense was that he broke Feley's windows in self-defense. However, as Huynh's defense was that he did not break the windows at all, the court ruled the evidence inadmissible.
B. Analysis
Section 1103(a)(1) provides:
"(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character."
Under this statute, "[a]n accused claiming self-defense in a prosecution for homicide or assault is entitled to prove the dangerous character of the victim. If this character was known to the defendant, the evidence tends to show the defendant's apprehension of danger; if it was not known, the evidence nevertheless tends to show that the victim was probably the aggressor. '[T]he law recognizes the well-established fact in human experience that the known reputation or character of an assailant as to violence and turbulence has a very material bearing on the degree and nature of the apprehension of danger on the part of a person assaulted; also that one who is turbulent and violent may the more readily provoke or assume the aggressive in an encounter.' [Citations.]" (1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 57, p. 389.)
"The admission of such character evidence . . . is not without bounds, but is subject to the dictates of section 352." (People v. Wright (1985) 39 Cal.3d 576, 587.) Under this section, "the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Here, the trial court properly ruled that evidence of Feley's violent character should be excluded. The defense sought to show that Feley was the aggressor in the incident. However, Huynh was not charged with assault, but vandalism. Huynh's claim was not that the windows were smashed in self-defense, but rather that he simply did not break the windows at all. Thus, Feley's character for violence was irrelevant to the vandalism charge.
Further, the evidence was properly excluded under section 352 as it had at most only slight probative value, and its admission would necessitate undue consumption of time or create a substantial danger of confusing the issues or of misleading the jury. The declaration was from family court proceedings on a TRO. The evidence would have required a mini-trial on that evidence and the events surrounding it. Thus, the court was well within its discretion to exclude the proffered evidence under section 352.
Also, any error in excluding the evidence or in the weighing process itself was harmless. (See People v. Cudjo (1993) 6 Cal.4th 585, 611 [applying People v. Watson (1956) 46 Cal.2d 818, 836 standard to erroneous exclusion of defense evidence under § 352].) The defense did not counter Feley's testimony that Huynh broke Feley's windows, except with Nguyen's statement denying that Huynh committed the act. No explanation was given by the defense as to how else the windows could have been broken. Further, as explained, ante, the declarations of Feley's wife in support of a TRO would not have assisted Hunyh's defense that he did not break Feley's window, but only that Feley was the aggressor. Accordingly, it is not reasonably probable that Huynh would have received a more favorable result had the evidence been admitted.
II. INSTRUCTION UNDER CALCRIM NO. 372
A. Background
At the end of the trial, defense counsel objected to the court instructing the jury on flight under CALCRIM No. 372. Defense counsel argued that the instruction presumed that if he fled, his flight was evidence of guilt. Counsel argued the instruction would mislead the jury into thinking Huynh fled because he was guilty, rather than because he was trying to get away from Feley. The court ruled that CALCRIM No. 372 was appropriate under the circumstance to show consciousness of guilt and that it was for the jury to decide whether Huynh was fleeing or merely trying to get away from Feley.
The court instructed the jury under CALCRIM No. 372 as follows:
"If the defendant fled immediately after the crime was committed or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself."
B. Analysis
A flight instruction is proper where the evidence shows the defendant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Bradford (1997) 14 Cal.4th 1005, 1055 (Bradford); People v. Visciotti (1992) 2 Cal.4th 1, 60.) "'"[Flight requires neither the physical act of running nor the reaching of a far-away haven. Citation. Flight manifestly does require, however, a purpose to avoid being observed or arrested."' [Citations.] 'Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.' [Citation.]" (Bradford, supra, 14 Cal.4th at p. 1055.)
Here, Huynh was made aware that Feley had called the police, and in response he immediately returned to his car and drove away. Although his contention was that he was fleeing to get away from Feley, that claimed fact was for the jury to decide and did not preclude a flight instruction. (Bradford, supra, 14 Cal.4th atp. 1055.) Given these circumstances, the jury could reasonably infer Huynh's actions were motivated by a consciousness of guilt or consciousness of wrongdoing and were an effort to avoid being arrested. (Ibid.; People v. Bolin (1998) 18 Cal.4th 297, 327.)
Even assuming the instruction was given in error, it was harmless. "The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it." (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183; People v. Visciotti, supra, 2 Cal.4th at p. 61.) Further, CALCRIM No. 372's cautionary nature benefits a defendant by "'admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]'" (People v. Boyette (2002) 29 Cal.4th 381, 438- 439; see People v. Henderson (2003) 110 Cal.App.4th 737, 742.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., HUFFMAN, J.