Opinion
C075973
02-06-2017
THE PEOPLE, Plaintiff and Respondent, v. SERGEY ALEKSANDROVI NEBORAK, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62115794A)
Following a night of drinking, defendant Sergey Neborak and his acquaintances Vadim Ormanzhi and Yevgeniy Sonnik were involved in a high speed police chase. After the truck they were in ran out of gas and stalled, all three ran from the vehicle. Police apprehended Ormanzhi and Sonnik at the scene, but not defendant. In exchange for having all charges dropped against him, Ormanzhi agreed to testify against defendant.
A jury convicted defendant of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing police officer (Veh. Code, § 2800.2, subd. (a)), hit and run (Veh. Code, § 20002, subd. (a)), resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a); unless otherwise set forth, section references that follow are to the Penal Code), driving on a suspended license (Veh. Code, § 14601.1, subd. (a)), and reckless driving (Veh. Code, § 23103, subd. (a)). He was sentenced to five years formal probation; as a condition of probation, he was ordered to serve 363 days in jail.
On appeal, defendant contends the court erred in failing to instruct the jury sua sponte about accomplice testimony and that it improperly instructed the jury on defendant's flight from the scene since flight was an element of several of the charged offenses. He also asserts his counsel was ineffective for failing to request instructions on accomplice testimony and third party flight, which he contends would have supported his defense that Ormanzhi was the driver.
Finding no reversible error, we affirm the judgment.
FACTS AND PROCEEDINGS
A. The Incident
On the afternoon of May 19, 2012, defendant, Ormanzhi and Sonnik attended a Russian festival in downtown Sacramento. Defendant drove both men to the festival in a truck registered to his father. They stayed at the festival for several hours, consuming alcohol while there.
After leaving the festival, Ormanzhi drove defendant's truck to a nearby Starbucks where they met up with several people and consumed more alcohol. They then decided to drive to Roseville to visit a bar. According to Ormanzhi, defendant drove from the Starbucks to the Roseville bars.
When they could not get into any bars, the three decided to go to Sonnik's new apartment, which was nearby. Ormanzhi testified that he got into the rear passenger seat in the truck, Sonnik sat in the front passenger seat, and defendant drove. Ormanzhi admitted he was very intoxicated and said defendant and Sonnik were too.
Roseville Police Officer Cortes was on patrol that night and happened to be waiting at a nearby intersection when defendant left the bar area. Officer Cortes saw the truck spin out of control and continue on at a high rate of speed. Ormanzhi testified that defendant's "first reaction" upon seeing the officer across the street "was to gas it."
Officer Cortes turned and followed the truck. Although he activated his patrol car emergency lights and siren, the truck did not pull over. Ormanzhi admitted seeing the patrol lights behind the truck.
The truck continued speeding and ran a red light. While trying to turn onto a freeway onramp, the truck collided with another car. Rather than stopping, the truck sped onto the freeway where it ran out of gas and stalled at the next exit.
All three occupants got out of the vehicle and ran. Ormanzhi said he and Sonnik got out of the passenger side of the truck. They hid in bushes next to a nearby apartment complex. When Ormanzhi tried to scale the fence surrounding the complex, he was tased by police. Sonnik was also taken into custody. Defendant, however, was not apprehended that night.
After being arrested, police questioned Ormanzhi about who was driving the truck during the pursuit. Ormanzhi originally said it was not his car, and that he did not know who was driving. A few days later, however, Ormanzhi identified defendant as the driver. Several documents, including court documents, that had defendant's name and address were also found in the truck.
Officer Cortes testified that he saw three males leave the truck once it stopped. The two suspects who were caught, Ormanzhi and Sonnik, got out of the passenger side of the truck. Although he was not positive, Officer Cortes believed the third person got out of the driver's door and came around the front of the truck where he met up with the other two near the fence. He ran straight along the fence line, while Ormanzhi and Sonnik hopped the fence and hid in the bushes where they were caught a short time later.
B. Trial Proceedings
A March 2013 information charged defendant with evading a peace officer with wanton disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a), count 1), hit and run resulting in property damage (Veh. Code, § 20002, subd. (a), count 2), resisting or obstructing a peace officer in the lawful performance of his duties (§ 148, sub. (a), count 3), driving with a suspended or revoked driver's license (Veh. Code, § 14601.1, subd. (a), count 4), and reckless driving (Veh. Code, § 23103, subd. (a), count 5). It was further alleged that defendant had two prior convictions for driving with a suspended or revoked license.
Ormanzhi, who was originally charged jointly with defendant for resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)), agreed to testify against defendant in exchange for dismissal of the charge. The above facts are based largely on his testimony at trial.
Defendant did not testify and presented no evidence in his defense. A jury convicted him of all charges. He was sentenced to formal probation for five years; as a condition of probation, defendant was ordered to serve 363 days in jail.
DISCUSSION
I
Accomplice Instructions
Although his counsel expressly declined to request CALCRIM No. 334, the pattern jury instruction concerning accomplice testimony, defendant contends the court was required to give the instruction.
Briefly summarized, CALCRIM No. 334 would have informed the jury that it had to decide whether Ormanzhi was an accomplice, and if it so found, that defendant could not be convicted based on Ormanzhi's testimony alone, which the jury should view with caution, unless sufficiently corroborated. (CALCRIM No. 334 [last rev'd Feb. 2016].)
Even if we assume the court had a sua sponte duty to so instruct the jury, we conclude any alleged error was harmless given evidence corroborating Ormanzhi's testimony and other circumstances that would have caused the jury to view his testimony with distrust.
A defendant may not be convicted on the testimony of an accomplice "unless the testimony is corroborated by other evidence tending to connect the defendant with the commission of the crime." (People v. Hayes (1999) 21 Cal.4th 1211, 1270-1271, as modified (Feb. 16, 2000) (Hayes); see also § 1111.) "The definition of an accomplice 'encompasses all principals to the crime including aiders and abettors and coconspirators.' " (People v. DeJesus (1995) 38 Cal.App.4th 1, 23 (DeJesus).) "To be an accomplice, one must act ' "with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging, or facilitating commission of, the offense." ' " (Ibid.)
"Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom." (People v. Stankewitz (1990) 51 Cal.3d 72, 90 (Stankewitz).) A defendant bears the burden of proving a witness's status as an accomplice by a preponderance of the evidence. (DeJesus, supra, 38 Cal.App.4th at p. 23.)
Here, defendant claims that because Ormanzhi admitted driving the truck sometime during the evening and because he was later jointly charged with defendant for resisting a peace officer and then given immunity, he was an accomplice whose testimony had to be considered with caution and separately corroborated. Such facts, however, do not alone establish accomplice liability.
"The fact that a witness has been charged or held to answer for the same crimes as the defendant and then has been granted immunity does not necessarily establish that he or she is an accomplice." (Stankewitz, supra, 51 Cal.3d at p. 90.) "Nor is an individual's presence at the scene of a crime or failure to prevent its commission sufficient to establish aiding and abetting." (Ibid.) Yet, even if we assume these facts were sufficient to warrant giving the accomplice instruction so the jury could decide whether Ormanzhi was in fact an accomplice (see Hayes, supra, 21 Cal.4th at pp. 1270-1271; see also DeJesus, supra, 38 Cal.App.4th at p. 25 [issue of whether a witness was an accomplice and the effect on his testimony if he was should have been submitted to the jury]), we find the failure to give CALCRIM No. 334 harmless.
"It has been recognized that the failure to instruct on accomplice testimony pursuant to section 1111 is harmless where there is sufficient corroborating evidence in the record." (People v. Miranda (1987) 44 Cal.3d 57, 100 (Miranda).) Such evidence " 'may be slight and entitled to little consideration when standing alone[,]' " and the evidence may be entirely circumstantial. (Ibid.) "Moreover, ' "only a portion . . . of the accomplice's testimony need be corroborated" ' [citation] and it is ' "not necessary that the corroborative evidence . . . establish every element of the offense charged." [Citations.]' " (Ibid.) The evidence need only " ' " 'tend[] to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the [accomplice] is telling the truth.' " ' " (Ibid.)
Applying the foregoing principles, we are satisfied that Officer Cortes' testimony, together with documentary evidence recovered from the truck, sufficiently corroborated Ormanzhi's testimony. Officer Cortes testified to seeing three males in the truck. He also testified that the two people who were apprehended that night, Ormanzhi and Sonnik, got out of the passenger side of the vehicle. The third person, who was not immediately caught, came around the front of the vehicle and met up with Ormanzhi and Sonnik at the fence, but ran a different direction than Ormanzhi and Sonnik. Ormanzhi testified similarly. From this testimony the jury could reasonably infer that the third person who came around the front of the vehicle was the driver who had exited the truck on the driver's side of the truck.
Documentary evidence also showed the truck was registered to defendant's father and that defendant kept several important papers with his name and address in the truck. Ormanzhi likewise testified that the truck was registered to defendant's father. The jury was instructed that it could consider this documentary evidence for the limited purpose of determining whether defendant was the driver. From such evidence, the jury could reasonably infer that the truck belonged to defendant's father thus making it much more likely he had access to the truck that night and was driving the truck rather than Ormanzhi. Although defense counsel argued Ormanzhi was the only driver throughout the evening, no evidence showed how Ormanzhi originally would have had access to defendant's father's truck. Evidence showed that defendant, by contrast, shared the same address as his father, which was the same address to which the truck was registered.
We also note that the jury was repeatedly told to view Ormanzhi's testimony with caution, the underlying purpose of the accomplice instruction. "The reason most often cited in support of these instructions is that an accomplice is inherently untrustworthy because he or she 'usually testif[ies] in the hope of favor or the expectation of immunity.' " (People v. Tobias (2001) 25 Cal.4th 327, 331 (Tobias).) "In addition, an accomplice may try to shift blame to the defendant in an effort to minimize his or her own culpability." (Ibid.)
In this case, Ormanzhi testified he had an immunity agreement that dismissed all pending charges against him and prevented the prosecutor from filing additional charges based on the incident. He said that although he had been willing to take his punishment for any offenses from that night, he later agreed to testify to get immunity because his mother was sick and he wanted to visit her out of the country. Ormanzhi also admitted that he had been less than truthful with police when first questioned. Ormanzhi's own testimony thus made it clear that he had several motives for testifying against defendant. (See e.g., DeJesus, supra, 38 Cal.App.4th at pp. 26-27 [omission of accomplice instruction harmless where jury had ample basis to view witness's testimony with distrust when witness testified that he lied to police, that he believed himself guilty of murder as an accomplice, and that he was given immunity for his testimony].)
Defense counsel also emphasized Ormanzhi's immunity agreement for the jury. In closing, counsel repeatedly argued that Ormanzhi was the driver, that Ormanzhi's testimony should be disbelieved and was not trustworthy, and that Ormanzhi had a motive to lie to escape punishment. Defense counsel even urged the jury to disregard Ormanzhi's testimony completely, telling them, "[d]o not believe Vadim Ormanzhi."
The court, moreover, instructed the jury as follows: "You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. [¶] . . . [¶] In evaluating a witness's testimony, you may consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony. Among the factors that you may consider are: [¶] . . . [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] . . . [¶] Was the witness promised immunity or leniency in exchange for his or her testimony?" (CALCRIM No. 226.)
Assuming Ormanzhi was an accomplice, sufficient evidence independently corroborated his testimony. The jury was also well aware that it had to judge the credibility of the witnesses and that in doing so it could consider whether Ormanzhi had any bias or motive to lie, including obtaining immunity or escaping punishment for the crimes. Under these circumstances, any error in failing to give the accomplice instruction was harmless.
II
Flight Instruction
Defendant contends the court erred in giving CALCRIM No. 372, concerning the significance of a defendant's flight after a crime. Because several of the charged offenses included flight as an element and since the identity of the driver was contested, defendant claims it was prejudicial to give the instruction. We disagree.
" '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." [Citations.] " '[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.' " ' " (People v. Leon (2015) 61 Cal.4th 569, 607 (Leon).)
We find defendant's first contention--that a flight instruction is improper whenever a defendant is charged with offenses that have flight or evasion as an essential element--without merit. The Supreme Court in Leon found that the trial court properly instructed the jury on flight even though the defendant was convicted of resisting a peace officer and evading a peace officer with a willful disregard for safety, which include flight as an element (§§148, subd. (a)(1), 2800.2), as well as other crimes that had no element of flight, such as murder and robbery. (Leon, supra, 61 Cal.4th at pp. 576, 607; §§ 187, 211.) The court found the defendant's flight was relevant to his consciousness of guilt for the robbery and murder charges (Leon at p. 607.)
The same reasoning applies here. In addition to being convicted of resisting a peace officer and evading a peace officer with a willful disregard for safety, both flight or evasion crimes, defendant was also convicted of two crimes that did not have flight as an element, reckless driving (Veh. Code, § 23103), and driving with a suspended license charge. (Veh. Code, § 14601.1.) Defendant's flight from the scene was thus relevant to his consciousness of guilt for these latter offenses. (Leon, supra, 61 Cal.4th at p. 607; see also People v. Henry (1937) 23 Cal.App.2d 155, 164 [recognizing that where a defendant was tried for two offenses, one that included flight as an essential element and one that did not, the jury was entitled to consider flight instruction, at least as it applied to non-flight offense].)
Defendant's next contention--that when identity is the only contested issue at trial, a flight instruction is improper--is likewise incorrect. While it is true that some earlier opinions have held that an instruction on a defendant's flight is improper where identity is the only issue (see e.g., People v. Mask (1986) 188 Cal.App.3d 450, 455-456), more recently the Supreme Court has held that "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight." (People v. Mason (1991) 52 Cal.3d 909, 943 (Mason).)
According to the Mason court, " '[t]he jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' " (Mason, supra, 52 Cal.3d at p. 943.)
Here, Ormanzhi testified that defendant was the person who was driving the truck.
The truck was registered to defendant's father and defendant's important papers were recovered from the truck after it was impounded.Officer Cortes also testified that of the three males in the truck, the two who were apprehended, Ormanzhi and Sonnik, got out of the passenger side when they fled. The third person, who was not immediately caught, appeared to come around the front of the vehicle and meet up with Ormanzhi and Sonnik at the fence. From this testimony the jury could reasonably infer that defendant was the driver who had exited the truck on the driver's side of the vehicle.
Given the evidence that defendant was the driver and that he fled from the truck, the trial court did not err in giving the flight instruction. The instruction was necessary for the jury's full understanding of the applicable principles of law.
III
Ineffective Assistance of Counsel
Defendant finally contends his counsel was ineffective for declining to request instructions on accomplice testimony and third party flight. He claims the omitted instructions would have called into question "the veracity of Mr. Ormanzhi's testimony" and bolstered his defense that Ormanzhi was the driver. We conclude defendant has failed to carry his burden of establishing prejudice and on that basis we reject his claim.
To establish ineffective assistance of counsel, " 'a defendant must first show counsel's performance was "deficient" because his "representation fell below an objective standard of reasonableness . . . under prevailing professional norms." ' " (In re Avena (1996) 12 Cal.4th 694, 721 [citing Strickland v. Washington (1984) 466 U.S. 668, 687-688, 80 L.Ed.2d 674, superseded by statute on other grounds (Strickland)].) " 'Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citations.] Prejudice is shown when there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [Citations.]' " (In re Avena, supra, at p. 721.)
"If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." (Strickland, supra, 466 U.S. at p. 699.) We follow this course here. Even if we assume defense counsel's performance was ineffective for failing to request both instructions, defendant cannot establish that is it reasonably probable the result would have been different. (In re Avena, supra, 12 Cal.4th at p. 721.)
With respect to an accomplice instruction, as explained above, other instructions given by the court together with defense counsel's argument sufficiently called Ormanzhi's veracity on the stand into question. The jury, then, had ample basis to view Ormanzhi's testimony with distrust. (Miranda, supra, 44 Cal.3d at p. 101 [Supreme Court noted that purpose of section 1111 is to compel the jury to view accomplice testimony with distrust and suspicion].) Given the fact that the court instructed the jury generally on principles for evaluating witness testimony, including potential biases or motives to lie, and the arguments of defense counsel, it is not reasonably probable that the jury did not view Ormanzhi's testimony with the appropriate caution. Any error in failing to request the accomplice instruction was harmless.
We reach a similar conclusion regarding the third party flight instruction. In People v. Henderson (2003) 110 Cal.App.4th 737, 743, the Fourth District found that "a defendant relying on a third party culpability defense is entitled to have the trial court give an appropriate pinpoint instruction on the issue of the alleged flight of the third party upon proof that the third party was aware of the discovery of the charged crime," although the court has no sua sponte duty to craft such an instruction. But even if the trial court erred in not giving a third party flight instruction in that case, the court found the alleged error was plainly harmless where other instructions given by the court and arguments of counsel made the jury "aware that the conduct of the third party was important in evaluating the issue of identity." (Id. at p. 744.)
Here, the arguments of counsel and the court's other instructions made the jury well aware that Ormanzhi's conduct on the night in question and his testimony were important in evaluating the issue of identity. Because a third party flight instruction would have essentially told the jury the same thing, any error in omitting the instruction was not prejudicial.
DISPOSITION
The judgment is affirmed.
HULL, Acting P. J. We concur: MAURO, J. DUARTE, J.