Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06NF3316, Gregg L. Prickett, Judge.
Maureen J. Shanahan, 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, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Appellant Rigoberto Salinas was convicted of carjacking, unlawfully taking a vehicle, and possessing cocaine and drug paraphernalia. He contends the court erred in giving the standard flight instruction, there is insufficient evidence to support his cocaine conviction and the jury was coerced into reaching its verdict. We reject these contentions and affirm the judgment.
FACTS
On the night of September 23, 2006, Thomas Egdahl was in a parking alley near State College Boulevard in Anaheim. He was standing outside his van with the doors open and the keys in the ignition when appellant came up and asked him for a ride to Anaheim Boulevard. Egdahl refused, saying he was out of gas. Appellant offered to give him gas money, but Egdahl turned him down again. At that point, appellant drew a pistol, pointed it at Egdahl and yelled “Get out of my truck, fool!” He then brushed past Egdahl, climbed into the van and drove away.
Four days later, on September 27, Anaheim Police Officer Dietrich Meissner was on patrol about three miles from where the carjacking took place. At about 1:30 a.m., he noticed a van at a stop light that matched the description of Egdahl’s van. After confirming the van was Egdahl’s, and that it was still stolen, he followed it into a residential area, where it pulled into a driveway.
Meissner parked behind the van, exited his patrol car and yelled at the van’s driver — appellant — to put up his hands. He then reached back into his car to turn on his overhead lights. When he stood back up, he noticed appellant was walking up the driveway, toward the front of the van. Meissner followed him and yelled for him to stop, but appellant kept going. Meissner then pulled out his taser gun and shot appellant in the back. The shot felled appellant, but while he was on the ground, he reached into his right hip pocket. Meissner told him to remove his hand from his pocket, and after some hesitation, he did so. Appellant was handcuffed and taken into custody.
Meissner then went back to the area where appellant had been lying and discovered a small bindle of cocaine. The bindle was located on the ground near a planter, about a foot from where appellant had fallen. After recovering the bindle, Meissner searched the van and found a glass smoking pipe. He then searched appellant and found a wallet that belonged to Egdahl.
Later that day, police notified Egdahl they had caught someone driving his van. When Egdahl went to the police station to claim the vehicle, he was shown a six-pack of photographs. After studying them for a few minutes, he picked out appellant as the person who took his van. He also positively identified appellant at trial.
I
Appellant claims the court erred in giving the standard instruction on flight. (CALCRIM No. 372.) We disagree.
Per CALCRIM No. 372, the court instructed the jury that “[i]f the defendant fled or tried to flee on September 27th, 2006, immediately after the crime was committed or after he was accused of committing the crime, 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.” The defense did not oppose this instruction altogether. But it did ask the court to limit the instruction so it applied only to the drug charges. We agree with the trial court that there was no need to limit the instruction in this fashion.
A flight instruction is proper when the defendant departs the scene of a crime under circumstances that show he was motivated by consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) There must be evidence presented at trial which shows the defendant fled or attempted to flee to avoid being observed or apprehended. (People v. Crandell (1988) 46 Cal.3d 833, 869.) “To obtain the instruction, the prosecution need not prove the defendant in fact fled . . . only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence.” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
As illustrated by People v. Pensinger (1991) 52 Cal.3d 1210, the flight instruction is proper in cases where the evidence suggests the defendant may have had more than one reason for leaving the scene of a crime. In that case, Pensinger left his home in California, murdered a child in Arizona and then drove on to Texas. Arguing that Texas had been his original destination all along, he claimed the flight instruction was unwarranted. However, there was evidence that at the time of the murder, Pensinger had actually planned on staying in Arizona for a while. In light of this, the Supreme Court found the flight instruction appropriate and ruled the jury could properly consider Pensinger’s departure from Arizona as reflecting a consciousness of his guilt. (Id. at p. 1244.)
Our case is analogous to Pensinger. Although there was no direct evidence appellant’s flight on September 27 was attributable to the earlier carjacking, the jury could reasonably infer this from the circumstances. After all, appellant clearly attempted to distance himself from the stolen van in response to being spotted by the police. And while the drug evidence gave him an additional motive to flee, that does not mean the flight instruction was impermissibly broad or could not be used to help the jury decide the carjacking charge.
Of course, there was nothing in the court’s instruction that required the jury to consider appellant’s flight as evidence of his guilt on the carjacking charge. The jury was free to consider the flight instruction solely for purposes of deciding the drug charges. Or, it could have chosen not to apply the instruction at all. As the instruction plainly explained, the meaning of appellant’s conduct was for the jury to decide. Considering the wording of the instruction and the nature of the evidence, we do not believe the flight instruction was improper.
Appellant also contends the prosecutor committed misconduct in closing argument by linking his flight on September 27 to the earlier carjacking. Parroting his earlier argument, appellant contends his flight on the 27th was only relevant to the drug charges, but for reasons explained above, we do not think that is the case. So, there was nothing improper about the prosecutor’s argument. No misconduct has been shown.
II
Appellant also claims there is insufficient evidence to support his conviction for possessing cocaine. Particularly, he contends there is insufficient evidence he had control over the cocaine or knowledge of its contents. The record shows otherwise.
“In determining whether there is sufficient evidence to support a criminal conviction, we must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is evidence which is reasonable, credible and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
In this case, the evidence shows Officer Meissner confronted appellant late at night, while no one else was around. When Meissner told appellant to surrender, he walked away and Meissner used his taser gun to stop him. However, appellant was not incapacitated; following the shooting, he immediately reached into his pocket. And when Meissner ordered him to remove his hand, he did not comply right away. Instead, he hesitated momentarily. Then, after he was taken into custody, Meissner found a bindle of cocaine about a foot away from where he had been lying. Meissner also found a smoking pipe in the stolen van appellant had been driving. Considering all this evidence, a reasonable trier of fact could find appellant both knew about, and had control over, the cocaine that Meissner found.
Appellant’s own attorney admitted as much during trial. In his closing argument, in discussing the carjacking evidence, he told the jurors, “You’ve got a combination of facts that do not add up to proof beyond a reasonable doubt. . . . You have it as to all the crimes except the carjacking.” (Italics added.) Appellant argues his attorney was ineffective for making this concession, but it is clear counsel made a tactical decision to admit the less serious charges in an attempt to save appellant from the most serious charge, carjacking. Although it may seem counterintuitive, it is sometimes in an attorney’s best interest to concede a point when the facts are not in his favor. A concession in these circumstances can lend credibility to counsel’s other arguments and go a long way toward building trust with the jury. It can also be effective in terms of getting the jury to focus its attention on the issues that counsel believes are most important to the case.
Given these considerations, and the nature of the evidence in this case, we do not believe defense counsel was ineffective for conceding the drug charges and devoting the bulk of his attention to the carjacking count. The concession was a reasonable tactical decision, and as such, we are not at liberty to second-guess it. (People v. Coffman (2004) 34 Cal.4th 1, 86 [while not “risk free,” defense counsel’s decision to admit evidence of defendant’s prior criminal activity did not constitute ineffective assistance of counsel]; People v. Jones (2003) 29 Cal.4th 1229, 1254 [counsel’s tactical decisions must be accorded great deference and are generally not grounds for reversal].) Therefore, we find no violation of appellant’s right to effective assistance of counsel.
Egdahl, the sole testifying witness to the carjacking, was by no means a perfect witness. A daily drinker, his description of appellant varied at times, and his testimony raised some questions about the reliability of his pretrial identification of appellant.
III
Lastly, appellant claims the trial court abused its discretion by ordering the jurors to continue deliberations after they reported being deadlocked. The claim is not well taken.
About 90 minutes into deliberations, the foreperson reported the jury had reached a verdict on all but one of the counts. The foreperson said the jurors had discussed that one count three times, devoted the majority of their time to it, and voted on it once. However, they were unable to reach a verdict on it. Defense counsel argued this was grounds for a mistrial, but the trial court disagreed. It ordered the jury to take its lunch break and return for further deliberations that afternoon. When the jury returned from lunch, it deliberated for another 30 minutes before finding appellant guilty on all counts.
The law is clear: Unless there is “no reasonable probability” of agreement, the jury must continue its deliberations until it reaches a verdict. (Pen. Code, § 1140.) “The determination whether there is a reasonable probability of agreement rests in the discretion of the trial court. The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury’s independent judgment in favor of considerations of compromise and expediency. The question of coercion is necessarily dependent on the facts and circumstances of each case.” (People v. Sandoval (1992) 4 Cal.4th 155, 195-196.)
Appellant argues that by ordering the jurors to continue their deliberations after the lunch break, the court subtly coerced them into returning a guilty verdict. But at the time the court made this decision, the jurors had only been deliberating for 90 minutes. That’s not a very long time, even in a relatively simple case. In fact, our Supreme Court has “upheld courts’ denials of mistrials even after fruitless deliberations” for substantially longer periods. (People v. Bell (2007) 40 Cal.4th 582, 617 [10 hours]; People v. Sandoval, supra, 4 Cal.4th at pp. 196-197 [14 hours]; People v. Rodriguez (1986) 42 Cal.3d 730, 774-775 [11 days].)
More importantly, nothing the court said gave the impression it wanted the jury to find appellant guilty. Because the court “made no statements that could be interpreted as exerting pressure on any juror” (People v. Sandoval, supra, 4 Cal.4th at pp. 196-197), we find appellant’s claim of judicial coercion unpersuasive. No abuse of discretion has been shown.
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, J. ARONSON, J.