Opinion
F075290
10-15-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY ALLAN PERANO, Defendant and Appellant.
Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RF007586A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Brian M. McNamara, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lewis A. Martinez and Jennifer Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Meehan, J. and Snauffer, J.
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A jury convicted appellant Anthony Allen Perano on four counts of felony vandalism (Pen. Code, § 494, subd. (a); counts 2-5). On February 9, 2017, the court sentenced appellant to an aggregate local term of four years, the middle term of two years on count 2 and consecutive eight-month terms (one-third the middle term of two years) on each of the remaining counts.
All statutory references are to the Penal Code. --------
On appeal, Perano contends the court committed instructional error. We affirm.
FACTS
In 2013, Daniel Candlish became the executor of his mother's estate. The estate included a five-acre lot with a small house that was located on Highway 14 in Kern County. Bradley Braverman, a general contractor and childhood friend of Candlish, became the property's caretaker and he provided Candlish with a discount of approximately 50 percent on construction and repairs at the property.
On November 2, 2014, Candlish and Braverman went to the property and discovered that someone had cut a hole in a wall and installed a window. Someone had also removed railing from the porch, cut a hole in it, and installed a jacuzzi. In a bedroom, someone had installed a toilet that drained underneath the house. There was also lots of debris and trash strewn about the house, including mail addressed to Perano. Candlish paid Braverman approximately $1,500 to repair the house (Count 1).
On June 1, 2016, Candlish and Braverman went to the house and found the doors kicked in, the electric panel broken into, a bed on the porch, lots of trash and personal items inside, and "no trespassing" signs torn down. They also found Perano in the house. After a sheriff's deputy arrived on the scene, Perano told him that the property belonged to him. The deputy, however, told Perano that Candlish had shown him "papers" and he needed to vacate the premises immediately. Candlish and Braverman helped Perano move his belongings off the property onto a service road and they gave him a ride to Ridgecrest so Perano could get someone to help him come back to get them. Candlish subsequently paid Braverman between $400 and $600 for repairs on the house that normally would have cost about $1,000 (count 2).
On July 19, 2016, a sheriff's deputy went to the house and found Perano sitting on the porch. After calling Candlish and verifying that he owned the property, the deputy told Perano to leave. Later, when Candlish and Braverman arrived at the property, they found a hole in a wall of the main house, another on a wall of a bunk room that shared a common patio with the main part of the house, and some holes in the floor. This time the repairs cost about $900 (count 3).
On August 6, 2016, Candlish and Braverman went to the house and discovered holes in the wall, two studs missing, the outer siding cut off, and the vapor barrier insulation removed. The damage cost from $700 to $800 to repair (count 4).
On September 13, 2016, a deputy went to check on the property and found windows broken, siding and doors removed, and a three-foot wide hole in a wall.
On September 18, 2016, two deputies went to the house and found that plywood covering the windows and paneling covering a hole in the wall had been removed and that the doors had been changed. The deputies found Perano in the house and arrested him.
On September 19, 2016, Braverman made temporary repairs to the house that cost approximately $400 (count 5). Braverman estimated it would cost over $3,000 to $4,000 to complete the repairs on the house.
DISCUSSION
Prior to the court instructing the jury, a colloquy occurred during which defense counsel appeared to ask the court to instruct the jury with CALCRIM No. 372 which, in pertinent part, provides: "If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt." After some discussion, during which the court told defense counsel the instruction was not appropriate because there was no evidence that Perano ever fled, the court stated that it was simply going to note defense counsel's request.
Perano contends that during the above colloquy, Perano asked the court to instruct the jury that the absence of flight shows consciousness of innocence and that by failing to instruct the jury on the absence of flight the court prejudicially erred and denied Perano his federal constitutional right to due process. Respondent contends Perano forfeited this issue because he did not request an instruction on the absence of flight. Alternatively, respondent contends that because Perano was not entitled to an instruction on the absence of flight, the court's alleged instructional error did not prejudice Perano or deny him his constitutional right to due process. We need not determine whether Perano forfeited this issue on appeal because he was not entitled to an instruction on the absence of flight even if he had requested such an instruction.
Section 1127c states:
"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. [¶] No further instruction on the subject of flight need be given."
The court has a sua sponte duty to instruct on flight whenever the prosecution relies on such evidence to show consciousness of guilt. (People v. Williams (1997) 55 Cal.App.4th 648, 651 (Williams).) However, there is no reciprocal duty to instruct on the significance of the absence of flight, even on request. (People v. Staten (2000) 24 Cal.4th 434, 459 (Staten), citing People v. Green (1980) 27 Cal.3d 1, 39-40, fn. 26; Williams, supra, 55 Cal.App.4th at p. 651.) "[S]uch an instruction would invite speculation; there are plausible reasons why a guilty person might refrain from flight. [Citation.] Our conclusion [in Green] also forecloses any federal or state constitutional challenge based on due process." (Staten, supra, 24 Cal.4th at p. 459.) In accord with the authorities cited above, we conclude that even if appellant requested the trial court to charge the jury on the absence of flight, the court did not err or deny Perano his right to due process by its failure to do so.
DISPOSITION
The judgment is affirmed.