Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF131547, Craig Riemer, Judge.
Richard De La Sota, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Charles C. Ragland and Melissa Mandel, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
After defendant was found mentally competent to stand trial, a jury found him guilty of child abuse. (Pen. Code, § 273d, subd. (a).) The trial court thereafter found true that defendant had sustained a prior prison term. (§ 667.5, subd. (b).) Defendant was sentenced to a total term of three years in state prison. On appeal, defendant contends (1) the trial court erred in instructing the jury with Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 372 (the flight instruction), and (2) the trial court abused its discretion in denying him probation. We reject these contentions and affirm the judgment.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL BACKGROUND
Patricia B. was living in a house in Riverside with four of her five children: eight-year-old Jeremiah, 10-year-old J.C., and 16-year-old twins. Patricia and her children moved into the house in May 2006, and defendant moved into a back room in the house in June 2006.
On August 16, 2006, defendant and Patricia’s children were in the living room watching television. Defendant and Jeremiah were sitting next to each other on a couch. When Jeremiah stood up, defendant punched Jeremiah twice in the midsection with his closed fist. Jeremiah fell to the floor and began crying. Jeremiah had the wind knocked out of him, and he stayed on the ground for about 30 seconds.
The twins started fighting with defendant. Patricia, who was in another room, was called into to the living room by J.C. Patricia went into the living room and saw one of the twins fighting with defendant. Defendant ran out of the house, and the twin chased him to the front gate. Defendant ran into the street in front of the house and ran towards another house. Before defendant ran off, he said “Fuck you, niggers” to the twins, who were both in the front yard, and then spit in their direction.
Riverside Police Officer Sancho Lopez was dispatched to the home. Officer Lopez noted two baseball-sized marks and sustained redness and swelling to Jeremiah’s chest. Defendant was apprehended and arrested.
Defendant testified on his own behalf and claimed he did not know why the police came to the house on the day of the incident until after he was arrested. He denied hitting Jeremiah or having any problems with any one of the family members. He stated that he went next door to call the manager but did not remember why. Before he could make the call, he was told the police were outside and then he was arrested. Defendant admitted to having previously been convicted of petty theft and vehicle theft.
II
DISCUSSION
A. CALCRIM No. 372
Over defense counsel’s objection, the trial court instructed the jury on flight as follows: “If the defendant fled immediately after the crime was committed, 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.”
In response to defense counsel’s objection to the instruction, the court found that “there was evidence from which the finder of fact could construe [defendant’s] conduct as being flight, and so I think that is an appropriate instruction given the evidence in this case.”
Defendant contends the trial court improperly instructed the jury pursuant to CALCRIM No. 372 because his conduct did not constitute “flight” as that term is used in CALCRIM No. 372.
“In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light 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.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055; see also People v. Visciotti (1992) 2 Cal.4th 1, 60-61.)
Here, there was sufficient evidence from which the jury could infer defendant was fleeing the house to escape detection. After the twins observed defendant punch their brother in the midsection twice, J.C. summoned her mother and the twins began fighting with defendant. A reasonable inference can be made that defendant fled after Patricia was summoned to avoid being apprehended or under circumstances suggesting a consciousness of guilt. Though defendant now hypothesizes that he fled to avoid being beaten by the twins, this was not his explanation at trial. At trial, he claimed that nothing had happened before the police arrived and that he did not know why he was being arrested. Although his contention was that he was fleeing to get away from Jeremiah’s siblings, that claimed fact was for the jury to decide and did not preclude a flight instruction. (People v. Bradford, supra, 14 Cal.4th at p. 1055.) Given these circumstances, the jury could reasonably infer defendant’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.)
Assuming arguendo the trial court should not have instructed the jury with CALCRIM No. 372, defendant was not prejudiced. CALCRIM No. 372 “did not assume that flight was established, leaving that factual determination and its significance to the jury.” (People v. Visciotti, supra, 2 Cal.4th at p. 61; accord, People v. Carter (2005) 36 Cal.4th 1114, 1182-1183.) Further, the flight instruction benefited defendant because it told the jury it could not convict him based solely on the fact he fled, if the jury so found. (People v. Jackson (1996) 13 Cal.4th 1164, 1224; see also People v. Boyette (2002) 29 Cal.4th 381, 438-439 [CALCRIM No. 372’s cautionary nature benefits a defendant by “‘admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory’”].)
B. Denial of Probation
Defendant contends the trial court abused its discretion when it denied him probation. Specifically, he claims because of his “documented history of mental illness” and that illness played a “pivotal role” in the commission of his current and past crimes, it was an abuse to sentence him to state prison “without at least attempting a sentence that would address [his] rehabilitative needs.” We disagree.
“‘The grant or denial of probation is within the trial court’s discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. [Citation.]’ [Citation.] ‘In reviewing [a trial court’s determination whether to grant or deny probation,] it is not our function to substitute our judgment for that of the trial court. Our function is to determine whether the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds the bounds of reason considering all the facts and circumstances.’ [Citation.]” (People v. Weaver (2007) 149 Cal.App.4th 1301, 1311.) Defendant has not shown the trial court did not consider the factors listed in California Rules of Court, rule 4.414, or his mental health, or that its decision exceeded the bounds of reason.
After reading the probation and sentencing report, defendant’s mother’s attached letter, and the three psychological evaluations of defendant; asking extensive questions; and hearing lengthy argument from counsel, the trial court stated: “Under Penal Code Section 1203[, subdivision] (e)(4), the defendant is ineligible for a grant of probation unless an unusual case can be found. And the disqualifying fact here is that the defendant has two prior felony convictions. [¶] The court has reviewed California Rule[s] of Court[, rule] 4.413 concerning those factors which may indicate an unusual case. The closest one that might apply to the facts here is subdivision (c)(2)(B) of the rule which provides, ‘A crime was committed because of a mental condition not amounting to a defense, and there is a high likelihood that the defendant would respond favorably to mental health care and treatment that would be required as a condition of probation.’ [¶] Here, given the prior mental health treatment that has previously been provided at Patton State Hospital and apparently also at Metropolitan State hospital, and the treatment that was made available to the defendant on parole, and in light of the fact that this offense occurred despite that treatment, the court does not believe that it could find that the defendant would respond favorably to mental health care and treatment as a condition of probation both because he has had that in the past and it did not prevent the occurrence here, and also because ultimately that is going to be delivered on an outpatient basis and the defendant has proven that he is unwilling or unable to comply with outpatient requirements. [¶] Therefore, the court is going to find that this is not an unusual case and that the limitation on probation will remain in effect.”
The court thereafter found the following circumstances in aggravation: (1) defendant had engaged in violent conduct which indicates a serious danger to society; (2) defendant’s prior convictions are numerous; (3) defendant had served a prior prison term; (4) defendant was on probation or parole when the crime was committed; and (5) defendant’s prior performance on probation or parole was unsatisfactory. The court found the following circumstances in mitigation: (1) defendant was suffering from a mental or physical condition when the crime was committed, and (2) the extent of harm was low. Weighing those circumstances against each other, the court found that the circumstances in mitigation outweighed the circumstances in aggravation and sentenced defendant to the low term of two years in state prison for the substantive offense plus one year for the prior prison term.
The record here is clear that the court thoroughly evaluated the relevant statutory factors before determining defendant was not a good candidate for probation. In addition, the court methodically inquired of sentencing alternatives due to defendant’s mental health issues before sentencing defendant to the low term, thereby dismissing the probation officer’s recommendation to sentence defendant to the upper term of six years. The probation report listed the criteria affecting probation that were applicable in this case. The parties also pointed out the criteria. The record demonstrates the trial court read and considered the probation report, including the criteria affecting probation provided in California Rules of Court, rule 4.414, and heard extensive argument relating to its sentencing choices, and its decision to deny probation was based on legitimate sentencing objectives. The trial court did not abuse its discretion in denying defendant probation.
III
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J. KING, J.