Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County No. 07CF3045, David A. Hoffer, Judge. Affirmed.
H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
OPINION
RYLAARSDAM, ACTING P. J.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted defendant Lenoardo Adrian Lozano of auto theft (Veh. Code, § 10851(a)), having previously been convicted of theft of a motor vehicle (Pen. Code, § 666.5, subd. (a); all further statutory references are to this code unless otherwise specified), and three misdemeanors, possession of drug paraphernalia (Health & Saf. Code, § 11364), unauthorized possession of a syringe (Bus. & Prof. Code, § 4140), and resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1)). Defendant admitted five prior prison terms and that he had not remained out of prison for five years (§ 667.5, subd. (b).
The court sentenced defendant to the midterm of three years for the auto theft (§ 666.5, subd. (a)) and one year each for two prior prison terms (§ 667.5, subd. (b)). It stayed punishment for the other three prior prison terms and suspended punishment for the misdemeanors. Restitution and parole revocation fines of $200 each were imposed. (§§ 1202.4, 1202.45), the latter being stayed. A credit of 220 days for actual time and 110 days for good conduct was awarded.
One day as defendant drove by him, Officer Johnson ran the plates on the vehicle and received information the car was stolen. Johnson requested assistance and followed the car for approximately a mile without using his lights or siren. After Johnson followed the car into a parking lot, defendant turned around and drove out “at a high rate of speed.” As Johnson continued to follow him he turned on his lights and siren. Subsequently defendant got out of the car and began to run. Johnson also stopped, got out of his car, and in a loud voice ordered defendant to stop or he would send his police dog.
Defendant did not stop, and when Johnson released the dog, defendant outran it and scaled a wall. After a police perimeter was set up, Officer Short arrived. When he saw defendant come out of the bushes, he identified himself and ordered defendant to stop. Defendant continued to run, trying to climb another wall; Short gave chase and apprehended him.
After defendant appealed we appointed counsel to represent him. Counsel filed a brief setting forth the facts of the offenses and the disposition. He did not argue against defendant but advised the court he had not found any issues to present on defendant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) He suggested three issues to assist us in our independent review of the record as set out below.
Defendant was given 30 days to file written argument on his own behalf. That period has passed and we received no communication from him. We examined the entire record to determine if any arguable issues were present, including those suggested by counsel, and found none. (People v. Wende, supra, 25 Cal.3d at pp. 441-442; People v. Johnson (1981) 123 Cal.App.3d 106, 111-112.)
DISCUSSION
1. Evidence Code Section 1101, Subdivision (a) Objection
After Johnson testified about his following and pursuit of defendant, the prosecution was next going to called Short. Defendant objected to testimony about his flight from Short, arguing its only relevance was to show a propensity to flee since defendant was not charged with fleeing from Short. Evidence Code section 1101, subdivision (a) bars admission of evidence of a person’s character trait if offered to prove specific conduct. The court overruled the objection, agreeing flight from Johnson and Short was one incident, not two separate transactions.
We review a ruling on the admission of evidence using an abuse of discretion standard. (People v. Jablonski (2006) 37 Cal.4th 774, 824.) The evidence supports the court’s determination defendant’s flight from both officers was one transaction.
2. Prosecutor’s Closing Argument
The victim testified he picked up a woman named Esperanza and spent the night in a hotel with her. When they left the next morning, he heard someone call her Theresa Calderon. The next day the woman drove him in his car to a convenience store. On the way she told him she wanted to pick up a friend, which they did. When they arrived at the convenience store, the victim and Calderon went in; the man stayed in the car. Calderon asked the victim to pay for her drink. She told him she would be right back, left the store with the car keys, and never returned. Defendant, suspecting something, went outside and the car was gone.
During closing argument rebuttal the prosecutor referred to Calderon, stating: “Defense counsel says the defendant would have to know whose car it is and that he didn’t have permission to drive it. And maybe, maybe Teresa Calderon, maybe she went over her permission that she was given. Where the heck is Teresa Calderon? Where is this lady? This good friend of the defendant that is so close, she’s going to call him --”
Defendant’s lawyer objected, stating, “Assumes facts not in evidence about the relationship between Ms. Calderon and [defendant]. That is improper argument. I would ask that the jury --” The court overruled the objection.
The prosecutor continued, “She calls [defendant] because he needs a ride. That’s how close they are. And this lady isn’t going to come in? Her friend, this person that she’s going to pick up because he doesn’t have a ride, say no, no, no, [the victim] gave me that car. He let me drive it and I’m the one that gave the defendant permission.”
Defendant’s counsel again objected, stating, “This is burden shifting. I would ask that counsel be admonished not to do that.” The court overruled the objection.
The prosecutor went on: “What is reasonable to you? Defendant has the power of subpoena. This is his friend that supposedly gave him permission. That’s what they’re asking you to infer. But you’ve heard no evidence of that. [¶] So when they ask you do to that, they’re asking you not to apply the law. You’re supposed to take all the evidence you’ve heard, which is nothing. You’ve heard no evidence of Teresa Calderon giving this defendant permission to do anything.”
“A prosecutor may make fair comment on the state of the evidence. [Citations.]” (People v. Cook (2006) 39 Cal.4th 566, 608.) That includes argument as to the failure to call a logical witness, as long as there is no suggestion defendant had a duty to prove his innocence. (People v. Woods (2006) 146 Cal.App.4th 106, 112.) The prosecution’s argument does not purport to improperly shift the burden to defendant to show his innocence. Rather, the statements were a fair comment on the absence of testimony to support defendant’s theory that the prosecution failed to prove he knew that Calderon did not have permission to drive the car.
3. Flight Instruction
The court gave CALCRIM No. 372, which provides that defendant’s flight immediately after committing the crime may show consciousness of guilt, which may be considered by the jury although by itself is not sufficient to prove guilt. Defendant points out that flight is also evidence relevant to count 4, resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1); People v. Quiroga (1993) 16 Cal.App.4th 961, 967) and that there was no request to limit the instruction to exclude count 4.
Discussion of jury instructions is not included in the record so we have no information as to whether any limitation of this instruction was requested. Defendant does have “the obligation to request clarifying language” in a jury instruction. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192.) Moreover, in closing argument defendant’s lawyer acknowledged that defendant’s flight was evidence supporting this count.
DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.