Opinion
G053572
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ERNESTO PARRAGUIRRE, Defendant and Appellant.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 09CF2322) OPINION Appeal from a judgment of the Superior Court of Orange County, Cheri T. Pham, Judge. Affirmed. Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Alan L. Amann, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Ernesto Parraguirre of sexual penetration of a child 10 years of age or younger (Pen. Code, § 288.7, subd. (b) [count 1 - Stephanie]; all statutory citations are to the Penal Code), lewd act on a child under age 14 years (§ 288, subd. (a) [count 2 - Stephanie]), criminal threats (§ 422 [count 3 - Cindy]), first degree residential burglary (§§ 459, 460, subd. (a) [count 4]), and assault with intent to commit a sexual offense during the commission of first degree burglary (§ 220, subd. (b) [count 5 - Cindy]). The jury also found he committed first degree burglary while a nonaccomplice was present in the residence (§ 667.5, subd. (c)(21)). Parraguirre contends the trial court abused its discretion and violated his constitutional rights by denying his posttrial motion to substitute appointed counsel, prejudicially erred in instructing the jury on flight (CALCRIM No. 372), and erred by failing to provide a unanimity instruction concerning the offense of sexual penetration of a child under age 10 (count 1). For the reasons expressed below, we affirm.
The jury found it not true the lewd act offense (§ 288, subd. (a) [count 2 - Stephanie]) was committed during the commission of a burglary, and Parraguirre was a stranger to the victim and befriended her for the purpose of committing a lewd act. (§§ 667.61, subds. (a), (b), (d)(4), & (e)(2), 1203.066, subd. (a)(3).) The trial court found the verdict was not inconsistent because the jury could have found Parraguirre entered the home intending to commit a sexual offense against Cindy, but mistakenly touched and penetrated Stephanie thinking she was Cindy.
I
FACTUAL AND PROCEDURAL BACKGROUND
In September 2009, R.C. and his wife lived in the master bedroom of a three-bedroom mobile home in Orange with R.C.'s stepdaughter Cindy (then age 15), the couple's daughter Stephanie (then age nine), their son Oscar (then age five), and an adult nephew, Miguel. The children shared the front bedroom, and Miguel had the third bedroom to himself. The C.'s had previously rented out the bedrooms used by the children and Miguel to unrelated individuals, including a woman named Diane B.
On the early morning of September 16, the children were sleeping in their bedroom with the window partially open and the window screen in place. Stephanie slept in one bed, and Cindy and Oscar shared a mattress on the floor. Around 3:00 or 4:00 a.m., Stephanie awoke to find someone tapping her on her shoulder. She then felt someone next to her in bed. She first believed it was her mother, but she turned to face the wall and the person reached around, unbuttoned her shorts, and then reached across her body and touched her vagina. Stephanie was frightened and froze.
Cindy woke up and saw a leg dangling off Stephanie's bed. She also thought it was their mother, but started to cry when she realized it was a stranger. The person moved to Cindy's bed, choking her with one hand while touching her stomach and thigh with his other hand. He told her to shut up or he would "fucking" kill her. Cindy pushed Oscar off the mattress, and told him to go sit with Stephanie.
Cindy stood up and flipped on the light switch, but the person pushed her and immediately turned the light off. He announced he had come looking for her or to see her. When she threatened to scream, and he put her back on the bed. Cindy sat down and the person laid his head on her lap. Cindy recalled the person sounded Hispanic and smelled of alcohol.
Cindy turned on the television to calm the younger children down. She spoke with the person, and he told her his father kicked him out of their house because he was drunk. Thinking the person sounded like their cousin, Cindy asked, "I[.], is that you?" The person responded, "Yes."
Cindy told the person she would get him some food. The person moved to the closet as Cindy left the bedroom. When she was half way down the hall, she heard a noise, looked behind her, and saw the intruder exit through the front door. Cindy returned to her bedroom and saw the person outside her bedroom window trying to put the screen back on the window. The intruder said, "I'll be back later."
Believing the person was their cousin, Cindy and Stephanie decided to call their brother, Julio, in Connecticut. Cindy told Julio that I. entered the house and touched Stephanie. Julio responded I. was next to him, and put I. on the phone. Cindy began crying and told R.C. someone had broken into their house.
Officer Brian Chambers responded to the C.'s home around 5:00 a.m. Two or three other officers, including Tina Dunneback, were already there. Chambers interviewed the girls. Stephanie stated she was awakened by a man unbuttoning her shorts. The man placed one hand inside her shorts, grabbed her buttocks, and placed his fingers along the centerline of her buttocks. She began crying and the intruder then walked over and spoke with Cindy. Cindy stated the person choked her and said, "Shut up or I will kill you." He told her he had been kicked out of his "drug house" for drinking and was looking for a place to sleep. She initially thought the person was their cousin. The intruder wore a gray, hooded sweatshirt with the hood pulled over his face, black Dickies style pants, and white tennis shoes. She did not get a good look at his face, and only saw his nose and chin.
Later that morning, Chambers drove Stephanie to a nearby shopping center to view an individual, G.P., who other officers had detained. G.P. wore clothing similar to that described by the girls. Stephanie declared G.P. was not the intruder.
Cindy also was driven to the mall to view G.P. She positively identified G.P. as the person in her bedroom, stating she was "scared because it's him."
Later that day, a female officer interviewed Cindy at the police station. The officer showed her a photographic lineup containing a photo of Parraguirre in the number 2 position. She stated number 2 looked "mostly like" the person in her room, and she thought "Number 2 did it."
Adriana Ball conducted a child abuse (CAST) interview of Stephanie. Her statement was generally consistent with her testimony and her earlier statements to the police. She did not know if her cousin I. was the person in her room because "he didn't let us see his face," but he sounded just like him.
Investigators lifted fingerprints from a window screen found outside the children's bedroom, which matched those taken from Parraguirre by Anaheim police. Neither Cindy nor Stephanie identified Parraguirre at trial.
Officer Jeremy Smith searched for Parraguirre at both his sister's and mother's houses, and also spoke with his brother and other family members, including Elizabeth Guerrero, the girlfriend of Parraguirre's cousin. Guerrero told Smith she heard from other family members that Parraguirre was in Mexico. Smith began monitoring online conversations between Parraguirre's girlfriend, Ruby, and Ruby's aunt, Alejandra. In February 2010, Smith received a voice mail message from Parraguirre indicating he was out of the country and would be returning. On February 10, 2010, Parraguirre came to the Orange Police Department and was taken into custody.
Defense
Sergeant Stephen Elfelt assisted with the investigation of G.P., who had been detained at a shopping center near the C.'s home. G.P. generally matched the description provided by Stephanie and Cindy, but his shoes were black rather than white. G.P. stated he had been with his girlfriend at the time of the crimes. Elfelt went to an address in Orange looking for G.P.'s girlfriend, but did not locate her. His pocket contained an unwrapped condom which he stated he had used. G.P. provided fingerprints and DNA. Officers later released G.P. and cleared him as a suspect.
Dunneback, a school resource officer, transported Cindy to view G.P. at the shopping center. She read Cindy an admonition that included the language "[i]t is just as important to identify innocent people as well as guilty people." After looking at the suspect Cindy said, "It looks like him." Cindy stated she was scared "because it's him." Dunneback asked if the person she was viewing was the person who had been in her room and Cindy stated, "Yes, it's him." She explained the person was wearing the same clothing as the person who had been in her room except for his shoes. Cindy later told Dunneback they kept their bedroom door closed and usually locked.
The parties stipulated investigators collected DNA samples from G.P., Parraguirre, R.C., Miguel, and another individual. They also collected clothing, including underwear and shorts, from Stephanie and Cindy, as well as blankets, a sheet, and pillowcases from the girls' bedroom. A forensic scientist analyzed the samples and items. A swab taken from Cindy's neck contained DNA from three contributors. The major contributor was female and there were two minor contributors. In 2010, the scientist excluded Parraguirre as one of the minor contributors. In 2015, based on the implementation of new DNA analysis standards, he stated the minor contributors contained in the sample were not "suitable for comparison." He analyzed Stephanie's underwear and found a mixture of DNA, but excluded Parraguirre as a contributor. He analyzed both Stephanie's and Cindy's shorts and found a mixture of DNA from two individuals on Stephanie's shorts. The major contributor was consistent with Stephanie and the minor contributor was male, but he excluded Parraguirre as a contributor. He also excluded Parraguirre as a contributor to DNA found on Cindy's shorts. The scientist identified semen in three stains found on a blue blanket taken from one of the mattresses in the girls' room. DNA from two of the stains was consistent with R.C.'s profile. DNA from skin cells was consistent with a female related to the girls, probably their mother. Parraguirre was excluded as being a contributor to any of the DNA found on the blanket. DNA on a second blanket was consistent with R.C., Stephanie, and the girls' mother.
A forensic psychologist reviewed the investigative file, interviewed Parraguirre, and administered various tests. She concluded Parraguirre was sexually interested in adolescent females and adult females, which was normal heterosexual arousal. He was of average intelligence, and was a bit of a risk taker and thrill seeker who was oriented toward excitement. He did not possess deviant sexual interests.
Following trial in November 2015, the jury convicted Parraguirre as noted above. In May 2016, the court imposed a three-year determinate term for criminal threats (§ 422 [count 3]), an indeterminate term of 15 years to life for sexual penetration of a child 10 years of age or younger (§ 288.7, subd. (b) [count 1]), and a consecutive indeterminate term of 7 years to life for assault with intent to commit a sexual offense (§ 220, subd. (b) [count 5]). The court imposed and stayed (§ 654) terms for the other offenses.
II
DISCUSSION
A. Denial of Posttrial Marsden Motion
Parraguirre contends the trial court abused its discretion in denying his posttrial motion for substitute appointed counsel to assist him in moving for a new trial based on ineffectiveness of trial counsel. He asserts he made a colorable claim trial counsel performed ineffectively based on acts or omissions occurring outside of the trial record, and he credibly established the likelihood of a more favorable result had trial counsel performed with reasonable diligence. (See People v. Diaz (1992) 3 Cal.4th 495, 573 (Diaz) [where the defendant makes a colorable claim of inadequacy of counsel trial court may in its discretion appoint new counsel to assist the defendant in moving for a new trial]; see also People v. Marsden (1970) 2 Cal.3d 118 [Marsden].)
1. Factual Background
After trial and before sentencing, Parraguirre lodged a written motion alleging he received ineffective assistance from his appointed trial counsel, deputy alternate defender Raul Ramirez. Parraguirre sought substitution with "panel" counsel to assist him in bringing a new trial motion on trial counsel's ineffectiveness.
Parraguirre included in his motion a factual statement he signed under penalty of perjury. Parraguirre asserted Ramirez performed ineffectively in several respects, but on appeal he limits his claim to Ramirez's failure to investigate and interview exculpatory witnesses. Parraguirre claimed he had provided Ramirez with the names of alibi witnesses "months before trial," but to his knowledge Ramirez did not act on the information. In support, he attached these "potential witnesses' declarations" to his motion. Parraguirre submitted his sister Juanita's declaration, dated January 13, 2016. She declared that on September 16, 2009 - the date of the crimes - she and her boyfriend Michael Rosales were sleeping "around 4 am or so" when Parraguirre knocked at the door. Juanita was upset and wanted to go back to sleep so she told Rosales to take Parraguirre home. Rosales's declaration stated he took Parraguirre to a residence in Anaheim where Parraguirre was staying, which took about 15 to 25 minutes. The declarations stated Juanita and Rosales lived in Orange County, but did not provide a specific address. Linda Monjaras, Gerardo Moreno, and Georgina Martinez provided declarations reflecting Parraguirre and his girlfriend Ruby Juarez lived at Monjaras's residence in Anaheim from April through September 2009.
These latter declarations were directed at undermining testimony from an officer suggesting Parraguirre lived in the same city as the victims.
Parraguirre also asserted he had advised Ramirez he had an innocent explanation for the presence of his fingerprints on the victims' window screen. He "had, on several occasions, visited a former tenant at that same location by entering through the window." He gave Ramirez the name of the female former tenant, and the name of another person who had accompanied Parraguirre and saw him crawl through the bedroom window. Ramirez did not call either of these witnesses at trial. Parraguirre asserted the victims' father R.C. acknowledged one of his tenants "had a visitor through the [bedroom] window" as recently as a couple months before the crimes, but denied knowing it was Parraguirre. Parraguirre noted counsel had offered during his opening statement to explain the fingerprints, but he "never connected the evidence to his opening statement, leaving the jury to believe (incorrectly) that he had overstated his case." Parraguirre also noted police officers had detained another suspect near the crime scene who matched the girls' descriptions, and who he alleged Cindy had identified. This individual's alibi was not verified.
On March 11, 2016, Judge Conley conducted a hearing on Parraguirre's Marsden motion because the trial judge was unavailable. The court read Parraguirre's written motion, and made inquiries of Parraguirre and counsel Ramirez. Concerning alibi witnesses, counsel stated he "[a]bsolutely interviewed alibi witnesses," including a former renter at the premises and "her information didn't match up to provide the kind of alibi we were needing." Counsel stated, "the tenant told my investigator, it turns out, it was the wrong - that's a problem."
Concerning Parraguirre's assertion counsel did not contact the relatives and others who provided declarations, counsel responded, "I am aware of what he is talking about, your honor. There is no alibi evidence." The court stated, "[i]n other words, family members could not say he was with them." Counsel replied, "Correct." The court followed up, "And how do you know that? He thinks the opposite." Counsel responded, "The investigators I believe initially made contact with the family, and they have some information, but none of it sufficient enough to suffice for an alibi, at least that's my understanding. [¶] I have seen many of the family members and none of them say 'Mr. Parraguirre was with me at the time. He was here or doing this,' or 'I have a receipt,' or 'we were somewhere.'"
The trial court observed the declarations on which Parraguirre relied "are very general." The court quoted from the declaration from Parraguirre's sister stating Parraguirre was at her home around 4:00 a.m. Counsel stated that "has never been presented to me. I have never seen it, if that were true." Counsel also noted "the timing of it might have been a problem for us, even if it were true."
At the conclusion of the hearing, the trial court stated it did not find appointed counsel provided inadequate representation or that an irreconcilable conflict had developed, and there was insufficient evidence to appoint a new lawyer to handle a new trial motion.
On the date set for sentencing, May 20, 2016, Parraguirre file a written motion seeking "reconsideration" of his Marsden motion. He asked the trial court to review his earlier new trial motion, arguing Judge Conley erred by rejecting his complaints concerning the failure to interview alibi witnesses without conducting an evidentiary hearing. He also argued if Judge Conley considered his "declaration and exhibits insufficient to establish ineffective assistance of counsel as a matter of law," the judge applied the "wrong legal standard," because he "was only required to demonstrate that his right to the effective assistance of counsel in bringing the future new trial motion 'would be substantially impaired' . . . ."
Parraguirre asserts Judge Pham stated she "would not read the moving papers, but would instead allow [him] to explain the grounds for his motion orally." The record reflects the judge stated Parraguirre did not "need to read" his motion into the record, and asked him to summarize it.
Judge Pham asked counsel Ramirez, who stated he had been practicing criminal defense law for 18 years, to respond to Parraguirre's allegations. Counsel said he investigated alibi witnesses and determined they were not "helpful." Counsel then clarified he interviewed only one alibi witness, and the "information obtained was inconsistent with the facts of the case."
Parraguirre stated he asked "for copies of these interviews that [counsel] said happened," and he had "spoken to [his] family whose interviews never happened . . . ." As soon as Ramirez took over the case in early 2015, he gave counsel the "names of all witnesses that could have been helpful" to his defense. The list included his sister Juanita, Michael Rosales, Ivon Munoz, and Fernando Fuentes.
Ramirez took over the defense around January 2015, after the death of Parraguirre's prior lawyer, Peter Coleman.
Counsel agreed Parraguirre provided him with a list of "some names," but he did not "recall all the specific names." He gave the names to his investigator, Mr. Peluso, "who had been on the case since its inception." Counsel also spoke to Juanita, and she "never once told" him she was an alibi witness for her brother. Counsel did not have his notes, but he believed he "spoke to her about specific dates . . . and at no time did she say it couldn't have been my brother because he was with me . . . ." Counsel noted that after the trial Parraguirre's sister claimed Parraguirre was at her residence around 4 a.m.
The trial court asked Parraguirre if his sister told counsel or his investigator "that you were with her prior to the trial taking place or did she tell them that after the trial, after the jury had already convicted you." Parraguirre stated, "See, I don't know. I have those records. I don't have any of those statements that he says were taken by Mr. Peluso." He stated he did "not believe [counsel or Peluso] spoke to [his sister] because [she] told me nobody ever came to investigate her, nobody ever asked her about this information."
Concerning the other witnesses Parraguirre listed, "[k]ind of along the same lines. Came to specific dates, there was no one that I am aware of that could specifically say Mr. Parraguirre was with me, . . . was in another place, another location, things along those lines." Counsel could not specifically say whether all the named witnesses had been contacted or interviewed because he did not have the list with him and Peluso was not present in court.
Counsel stated they did "interview[] extensively" Parraguirre's friend [Diane B.] who lived in a different room at the residence, but "not the room that was involved," Counsel explained she provided "inconsistent information with regard to the time and date of this incident." Parraguirre stated he gave counsel "that name because I had been at that residence to explain why my fingerprints were found there," but counsel stated "upon closer examination of her anticipated testimony it was inconsistent."
The trial court noted, "But if I recall, that was brought out there was evidence that Mr. - confirmed by the people's witnesses that a lady who lived there did know and that you had visited the - . . . mobile home. . . . so that did come out at trial. Even though that lady didn't testify, there was no need. But the point being is that the jury was not convinced."
The trial court apparently was mistaken that evidence in Parraguirre's trial showed he visited Diane at the residence. R.C. testified he rented a room to a woman named Diane, a male visitor named Luis came to her window, and Luis looked nothing like Parraguirre.
Counsel stated he made a strategic decision based on his conversations with the witnesses, including Diane, that it would not have benefitted Parraguirre to call her as a witness because it was the "wrong set of windows" and "[n]ot the room where the fingerprints were ultimately found."
Parraguirre insisted he visited Diane at the property, and he went looking for her and was "outside the victim's bedroom looking for" her. It is unclear, but he apparently did not mean he was outside the victims' room on the night of the incident. Parraguirre stated he tried to explain to counsel he "never went inside the room, at which point he just cut me off and said . . . [h]e didn't want to hear nothing."
The trial court denied Parraguirre's motion for new counsel, explaining "there was evidence that you knew the lady [Diane B.] and that was an explanation for your fingerprints being at the location. It did come out. I am not hearing anything about any evidence that would have helped your case that was not brought forth by your attorney." The court stated it was "not convinced at all that there was anything deficient in Mr. Ramirez's representation . . . . He presented a very, very strong case," and the court felt Parraguirre "actually [had] a reasonable chance of . . . a hung jury, or an acquittal." The court concluded, "I don't find anything ineffective or deficient or lacking in what Mr. Ramirez did in this case."
2. Discussion
"When, after trial, a defendant asks the trial court to appoint new counsel to prepare and present a motion for new trial on the ground of ineffective assistance of counsel, the court must conduct a hearing to explore the reasons underlying the request. [Citations.] If the claim of inadequacy relates to courtroom events that the trial court observed, the court will generally be able to resolve the new trial motion without appointing new counsel for the defendant. [Citation.] If, on the other hand, the defendant's claim of inadequacy relates to matters that occurred outside the courtroom, and the defendant makes a 'colorable claim' of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citation.]" (Diaz, supra, 3 Cal.4th at pp. 573-574; People v. Stewart (1985) 171 Cal.App.3d 388, 397 [defendant must credibly establish the possibility trial counsel failed to perform with reasonable competence and a determination more favorable might have resulted in the absence of counsel's failings "; see People v. Smith (1993) 6 Cal.4th 684, 693-694 [Marsden and its progeny apply equally preconviction and postconviction; a defendant has no greater right to substitute counsel at the later stage than the earlier].)
Parraguirre argues he made a colorable claim Ramirez performed inadequately in failing to interview and investigate potential alibi witnesses and call to the stand the only witness who could explain the presence of his fingerprints. We disagree.
Counsel's choice not to call Diane B. as a witness does not establish a colorable claim of ineffectiveness. Whether to call a particular witness is a matter of trial tactics unless the decision results from unreasonable failure to investigate. (People v. Bolin (1998) 18 Cal.4th 297, 334.) Here, counsel stated the defense extensively interviewed the witness. She lived in a different room at the residence, and she provided "inconsistent information with regard to the time and date of this incident." Counsel stated "upon closer examination of her anticipated testimony it was inconsistent."
Although the precise nature of the inconsistent information apart from the different room was not developed at the hearing, Parraguirre has not established counsel's failure to call Diane raised a colorable claim of ineffectiveness. Parraguirre did not provide Diane's declaration, or a declaration from the other witness who allegedly saw him visiting her at the residence. The Attorney General also posits an unexpressed tactical basis not to call Diane. Cindy testified the perpetrator told her he had gone into her bedroom looking for her or to see her, implying he knew her and where she lived. There was no evidence regarding how the intruder could have known her, and the witnesses testified Parraguirre was a stranger. If Diane testified Parraguirre previously had visited her at the residence, her testimony could have provided an explanation concerning how Parraguirre came to know of Cindy. We accept counsel's assertion her testimony would not have been helpful. (People v. Dickey (2005) 35 Cal.4th 884, 922 [no Marsden error where complaints of counsel's inadequacy involve tactical disagreements].)
As noted, Judge Pham mistakenly concluded there was evidence at trial Parraguirre had visited Diane at the residence and this provided the jury with an explanation for his fingerprints. As noted above, trial counsel stated he investigated and interviewed Diane and concluded there were inconsistencies rendering her testimony unhelpful. We conclude the current record does not establish ineffectiveness of counsel for failure to call this witness. --------
Concerning the failure to interview alibi witnesses, the record is not entirely clear. But counsel told Judge Conley he "[a]bsolutely interviewed alibi witnesses," and categorically denied there was any alibi evidence to present, explaining family members could not establish Parraguirre was with them. Counsel explained, "The investigators I believe initially made contact with the family, and they have some information, but none of it sufficient enough to suffice for an alibi, at least that's my understanding. [¶] I have seen many of the family members and none of them say 'Mr. Parraguirre was with me at the time. He was here or doing this,' or 'I have a receipt,' or 'we were somewhere.'"
Counsel later told Judge Pham that Parraguirre provided him with a list of "some names," and he did not "recall all the specific names," but he gave the names to investigator Peluso, "who had been on the case since its inception." Counsel stated he spoke to Juanita, and she "never once told" him she was an alibi witness for her brother. Concerning the other names, "[k]ind of along the same lines. Came to the specific dates, there was no one that I am aware of that could specifically say Mr. Parraguirre was with me, . . . was in another place, another location, things along those lines." Counsel could not specifically say whether all the named witnesses had been contacted or interviewed because he did not have the list with him and Peluso was not in court.
Other than his own assertions, Parraguirre presented no evidence Peluso did not interview family members or persons on the list Parraguirre allegedly provided. Notably, nothing in Juanita's and the other declarations suggested they had not been interviewed. Judge Conley noted the declarations were "general," and provided almost no detail. And while Parraguirre's sister and her boyfriend stated Parraguirre came to her home around 4:00 a.m. on the date of the incident, she did not state where she lived in relation to the victims' residence. Counsel also noted Juanita's information had "never been presented to" him, and "the timing of it might have been a problem for us, even if it were true." To the extent Parraguirre and his counsel's version of events differed, the court did not err in accepting counsel's account. (See People v. Webster (1991) 54 Cal.3d 411, 436 [trial court entitled to credit defense counsel's response to Marsden assertions].)
Because the record does not establish trial counsel failed to interview or otherwise investigate alibi witnesses, the trial court did not abuse its discretion in declining to appoint new counsel to assist Parraguire in preparing a new trial motion.
Finally, Parraguirre asserts reversal is required based on a "breakdown of the attorney-client relationship, both before and after trial. [Counsel's] failure to interview alibi witnesses who were also family members of Mr. Parraguirre resulted in a loss of trust. The failure of the trial court to recognize that loss of trust, as well as the ineffectiveness of trial counsel, deprived Mr. Parraguirre of his federal and state constitutional rights to the effective representation of counsel." Parraguirre did not advise the court his relationship with counsel had broken down or that he could not trust or work with him. A disagreement concerning tactics is "insufficient to compel the discharge of appointed counsel, unless it signals a complete breakdown in the attorney-client relationship." (People v. Crandell (1988) 46 Cal.3d 833, 859-860 (Crandell).) No evidence shows a "complete breakdown" occurred here. B. CALCRIM No. 372
Parraguirre also contends the trial court prejudicially erred in instructing the jury on flight (CALCRIM No. 372). He asserts there was no evidence he departed for Mexico immediately after the incident, or that his departure was motivated by guilty knowledge or an attempt to avoid being observed or arrested. He suggests he traveled to Mexico because he had nowhere to live, and his telephone call to Detective Smith to announce his return suggested he did not flee. We do not find the contention persuasive.
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine."
The court provided CALCRIM No. 372: "If the defendant fled, or tried to flee, immediately after the crime was committed . . . that conduct may show that [he] was aware of [his] guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
"[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. Bradford (1997) 14 Cal.4th 1005, 1055.)
The evidence showed Parraguirre could not be found after the crime was committed, and then turned up in Mexico where he remained for several months before turning himself in. The jury reasonably could infer he learned he was under suspicion after officers identified his fingerprints and began contacting relatives and his girlfriend's family, and that he left the United States to avoid apprehension. (People v. Bonilla (2007) 41 Cal.4th 313, 328 [instruction warranted where jury could find the defendant fled and reasonably infer consciousness of guilt]; see People v. Howard (2008) 42 Cal.4th 1000, 1020-1021 [instruction appropriate where a jury could reasonably infer defendant fled after concluding suspicion focused on him].) Because the prosecution relied on evidence of flight to show consciousness of guilt, the trial court was required to instruct the jury on flight. (Howard, supra, 42 Cal.4th at p. 1020.)
In any event, any conceivable error in instructing the jury on flight was harmless. (People v. Clem (1980) 104 Cal.App.3d 337, 344-345 [reversal required only if there is a reasonable probability that a result more favorable to the defendant would have been reached had the instruction not been given].) The flight instruction itself "did not posit the existence of flight; both the existence and significance of flight were left to the jury." (Crandell, supra, 46 Cal.3d at p. 870.) The court also instructed the jury with CALCRIM No. 200 that "[s]ome of these instructions may not apply depending on your findings about the facts of the case." The evidence here was compelling. Cindy saw the intruder fumbling with the window screen as he departed, and Parraguirre's fingerprints were found on that screen. Cindy picked out Parraguirre in a photographic lineup. Even if instructional error occurred, it did not infringe Parraguirre's substantial rights. C. Unanimity Instruction
Finally, in his opening brief Parraguirre contends the trial erred by failing to provide a unanimity instruction (see CALCRIM No. 3500) related to sexual penetration of a child 10 years of age or younger (count 1) because the prosecution presented evidence Parraguirre penetrated both Stephanie's anus and her vagina, and the prosecutor did not elect the act constituting the charge. The Attorney General responds the trial court did provide a version of CALCRIM No. 3500: "The defendant is charged with Sexual Penetration With a Child 10 years or Younger in Count 1. [¶] The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act he committed." Parraguirre does not address the issue in his reply brief. The trial court did not err.
III
DISPOSITION
The judgment is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. THOMPSON, J.