Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF121997A. Clarence Westra, Jr., Judge.
Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Senior Assistant Attorney General, David A. Rhodes and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Ardaiz, P.J., Vartabedian, J. and Levy, J.
Appellant shoplifted several items from a home improvement store. A jury found him guilty of grand theft (Pen. Code, § 487, subd. (a); count one) and petty theft with a prior (§ 666; count two). Bifurcated allegations of four prior prison terms were found by the court to be true. (§ 667.5, subd. (b).) The court sentenced appellant to a total prison term of seven years: a three-year upper term for the grand theft, plus one year for each of the four prior prison term enhancements. On count two, the court imposed a three-year upper term but stayed it pursuant to section 654.
All further statutory references are to the Penal Code unless otherwise stated.
APPELLANT'S CONTENTIONS
Sanchez raises two contentions on this appeal. First, he contends that the court violated section 1127c by failing to instruct the jury on how to consider evidence of a defendant’s flight after the commission of a crime. Second, he contends that the court erred in imposing and staying his sentence on the count two (petty theft with a prior) conviction, and that the court instead should have stricken the count two conviction.
Respondent concedes that the court erred in failing to give a flight instruction on the court’s own initiative, but argues that the error was harmless. As we shall explain, we agree with respondent that the error was harmless. As to appellant’s second contention, respondent concedes that the court should have stricken the count two conviction. We will therefore direct the trial court to strike the count two (petty theft with a prior) conviction, but in all other respects will affirm the judgment.
FACTS
At about 4:00 p.m. on January 14, 2008, a man entered a Home Depot on Ming Avenue in Bakersfield and placed eight “high value” items in a shopping cart, including router bits, saw blades, a DeWalt battery and a laser level. The man was wearing a plaid Pendleton jacket, a black baseball cap, sunglasses, black pants and white shoes. A wallet chain hung from his pants. He had a small patch of hair just below his lower lip. The man went to a self check-out stand, scanned the items and placed them on a “sensor pad,” which deactivates security tags. He placed the items back into his cart without paying for them. He then headed to the rear of the store and slid one of the saw blades under a roll-up gate to an outdoor area. He placed other items in his jacket and pants and exited the store through the garden exit.
A surveillance videotape capturing many of these events was played for the jury during the testimony of a loss prevention officer for the store.
Joseph Hughes, a loss prevention officer for Home Depot, followed the man inside the store and confronted him outside. When Hughes identified himself, the man ran through the store’s parking lot toward Ming Avenue. As the man ran, the laser level fell out of his jacket. Pursuant to store policy, Hughes followed him to the end of the parking lot, but no further. Hughes identified the man in court as appellant. He said he was “a hundred percent sure” of his identification.
Shortly after the Home Depot theft, appellant rang the doorbell at the home of David Stevenson at 4008 El Dorado Avenue, one block north of Ming Avenue. Appellant was wearing a Pendleton jacket and baseball cap. He asked if Stevenson’s son was home. When told that he was not, appellant started to walk toward the sidewalk, but then changed direction and entered Stevenson’s backyard, which abuts a commercial area. Stevenson told appellant he could not go that way, and appellant started to head back toward El Dorado Avenue before Stevenson lost sight of him. Stevenson next saw appellant walking through a parking lot behind his house. Appellant was no longer wearing a jacket or hat. Stevenson later found those items of clothing in a neighbor’s yard, and gave them to police.
Police responding to the Home Depot incident were told that a suspect had entered a nearby Salvation Army store, and exited through a back door. They went to a rear loading dock and saw appellant crossing Stine Road behind the store. They identified themselves and ordered appellant to stop, but he did not comply. As the officers approached appellant, he turned around and took a swing at one of them but missed. Appellant took off running, and the police gave chase. Officer Nicole Shihrer caught up with appellant in front of an AT&T store. She ordered appellant to lie down on the ground, but he assumed a fighting stance instead. Shihrer had to strike appellant with a baton to make him comply with her order.
Hughes, the Home Depot loss prevention officer, saw appellant in handcuffs in front of the AT&T store. He recognized appellant as the shoplifter based on the bone structure of his face and the hair under his lip. Hughes also recognized the wallet chain and the white shoes. At trial, Hughes identified the jacket and baseball cap recovered by Stevenson as the items worn by appellant in the store.
At trial, Hughes referred to this hair as a “goatee,” but he explained that the man did not actually have hair on his lower chin.
Inside a trash can in the 3900 block of El Dorado Avenue, about one block from Stevenson’s house, police recovered the DeWalt battery and two router bits stolen from the Home Depot store. Hughes testified that the total value of the goods recovered from outside the store was $485.85.
Appellant did not testify or call any witnesses in his defense.
INSTRUCTION ON FLIGHT
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 statute states that the court “shall instruct” the jury with a flight instruction “where evidence of flight of a defendant is relied upon as tending to show guilt” (§ 1127c), and thus under those circumstances the court has a sua sponte duty to give the instruction even when the court is not asked to give the instruction. (People v. Williams (1960) 179 Cal.App.2d 487, 490.) “Section 1127c requires an instruction to the jury when there is evidence of flight.” (People v. Mendoza (2000) 24 Cal.4th 130, 179.) The statute was enacted in 1929. (Stats. 1929, ch. 875, §1, p. 1939,) “The Legislature’s purpose in enacting section 1127c was to abolish the rule stated in many early cases that the jury could not be instructed to consider flight as evidence of guilt unless it had been proved that the fleeing suspect had previously learned that he was accused of commission of a crime.” (People v. Hill (1967) 67 Cal.2d 105, 120-121.) “As the statute indicates, and as the cases have held [citations], the giving of an instruction on flight in language which varies slightly from that of section 1127c is not error.” (People v. Hill, supra, 67 Cal.2d at p. 120.)
In the present case, no flight instruction was given. There was evidence that as appellant was leaving the Home Depot he ran away from Joseph Hughes when Hughes asked appellant to stop and identified himself as a loss prevention officer. Hughes testified, “When I asked him to stop, he just ran out straight through this parking lot towards Ming [Avenue].” There was also evidence that when Officers Vasquez and Shihrer contacted appellant behind the Salvation Army store a short time later, identified themselves as police officers, and ordered appellant to stop, appellant “swung at” Shihrer and “then proceeded to run southbound through the parking lot.” The prosecutor had initially requested that the judge give a flight instruction, but during a conference with the court about jury instructions, the prosecutor expressly withdrew his request for the CALJIC No. 2.52 flight instruction. Nothing we have in the record on this appeal explains why the request for the instruction was withdrawn.
The CALJIC No. 2.52 instruction states: “The [flight] [attempted flight] [escape] [attempted escape] [from custody] of a person [immediately] after the commission of a crime, or after [he] [she] is accused of a crime, is not sufficient in itself to establish [his] [her] guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.”
Shortly after the instruction conference at which the request for the flight instruction was withdrawn, the prosecutor presented his argument to the jury. During his argument to the jury, the prosecutor appears to have assumed that a flight instruction would be given. A portion of the argument went as follows:
“[MR. HORVATH]: When he, when the Officer Shihrer and Officer Vasquez got outside, the employee out there was pointing at him. It was at that point they attempt to make contact with the defendant. They said stop, Bakersfield Police Department, they were in full uniform. When they got within arm’s distance away, the defendant turned around, looked at him, looked at both of them, and the defendant took a swing at Officer Shihrer and then started running.
“When Officer Shihrer got her bearings straight, they chased him down, and he was eventually arrested after confronting and challenging Officer Shihrer on two different occasions. I think that is the key point.
“If the defendant is truly innocent, why is he running from the police? I think one of the jury instructions you’re going to get, the Judge is going to give you when you go back and talk, is jury instruction 252. What that says is the flight of a person immediately after the commission of the crime or after he or she is accused
“MR. REVELO: Objection, Your Honor.
“THE COURT: Counsel, I think you probably should go away from that. You withdrew that instruction.
“MR. REVELO: Yes.
“MR. HORVATH: 2.52?
“THE COURT: That’s what you said.
“MR. HORVATH: You’re going to be able to consider whether an individual running from the police who’s got no issues, no crime, hasn’t done anything wrong, whether that makes sense to you.”
This would suggest that when the prosecutor withdrew his request for the CALJIC No. 2.52 instruction, identifying it by number, he may have believed that the CALJIC instruction numbered “2.52” was an instruction on an issue other than flight. In any event, regardless of the reason for the omission, the fact remains that the jury was not instructed with a flight instruction even though there was evidence of flight and even though that evidence was “relied upon as tending to show guilt.” (§ 1127c.) This was error (People v. Williams, supra, 179 Cal.App.2d 487), and respondent so concedes.
Respondent contends, however, and we agree, that the error was harmless. Appellant’s flight from loss prevention officer Hughes was not even mentioned by the prosecutor in his argument to the jury. The prosecutor did, as we have mentioned, point out that appellant attempted to flee from the police when he was apprehended. But the key prosecution evidence was not appellant’s flight. The key evidence was (1) the identification of appellant by Hughes, who testified that he watched appellant in the store for “[a]bout 15, 20 minutes,” and was “a hundred percent sure” that appellant was the person he saw taking the items from the store; (2) the identification of appellant by David Stevenson, who was face to face with appellant only moments after appellant left the store (and while appellant was still wearing his jacket and hat), who stopped appellant from entering the Stevenson back yard, and who then saw appellant a moment later without the jacket and hat, and who then found appellant’s jacket and hat in Stevenson’s next door neighbor’s back yard; and (3) the trail of stolen items abandoned by appellant, and later recovered by officers and by Hughes, along the route appellant traveled after he left the store. These included the laser level appellant dropped in the Home Depot parking lot, and a DeWalt battery and two router bits found by the police in a trash can on El Dorado Avenue shortly after appellant was apprehended. Furthermore, in the face of all the evidence against him, appellant had no alibi and in fact presented no defense evidence whatsoever. His defense was that because his face could not be clearly seen in the store surveillance video, perhaps the person seen in the store surveillance video was someone who just happened to be dressed similarly to appellant, and perhaps loss prevention officer Hughes was simply mistaken in his identification of appellant. Appellant did not dispute that it was he who appeared at Stevenson’s door shortly after the thefts. Under these circumstances, we see no reasonable probability that appellant would have obtained a more favorable outcome if the flight instruction had been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)
We are aware of four published decisions addressing the failure to give a flight instruction. In all four the court, just as we do here, found the error to be harmless. (People v. Williams, supra, 179 Cal.App.2d at pp. 490-491; People v. Sheldon (1967) 254 Cal.App.2d 174, 181; People v. Roy (1971) 18 Cal.App.3d 537, 551 [disapproved on another ground in People v. Ray (1975) 14 Cal.3d 20, 32]; and People v. Carrillo (2008) 163 Cal.App.4th 1028-1029.) Many cases have pointed out that because a flight instruction expressly tells jurors they may consider flight as evidence of consciousness of guilt, the giving of a flight instruction may be deemed by some to be more damaging than helpful to the defense. (People v. Williams, supra, 179 Cal.App.2d at p. 491; People v. Sheldon, supra, 254 Cal.App.2d at p. 181; People v. Hill, supra, 67 Cal.2d at pp. 119-121; People v. Smithey (1999) 20 Cal.4th 936, 982-983; and People v. Mendoza (2000) 24 Cal.4th 130, 179-181.) Indeed, there are many published cases in which appellants contend that the giving of the flight instruction (as opposed to a failure to give the instruction) was error. (See, e.g., People v. Hill, supra, 67 Cal.2d at pp. 119-121; People v. Mason (1991) 52 Cal.3d 909, 942-943; People v. Smithey, supra; People v. Mendoza, supra; People v. Jurado (2006) 38 Cal.4th 72, 125-126; People v. Loker (2008) 44 Cal.4th 691, 705-707; and People v. Wallace (2008) 44 Cal.4th 1032, 1073-1074.) Appellant’s own failure to request a flight instruction suggests that he considered himself better off without one. He was certainly aware that he could request one. This trial was appellant’s second. His first trial ended in a mistrial after the first jury was unable to reach a verdict. Appellant’s first jury was instructed with a flight instruction and his trial counsel made express reference to that instruction in his argument to the jury. Appellant was represented by the same trial counsel at his second trial.
There is of course no reason to believe that a jury would think it could not consider evidence of flight when evidence of flight is presented at trial. Appellant’s jury was instructed that “you must decide all questions of fact in this case from the evidence received in this trial and not from any other source,” and “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” Thus appellant suffered no harm from the failure of the court to instruct the jury that it “may consider” evidence of flight. (§ 1127c; People v. Hill, supra, 67 Cal.2d at p. 120.) Appellant argues, however, that he was prejudiced by the failure of the court to instruct the jury that evidence of flight “is not sufficient in itself to establish his guilt.” (§ 1127c; People v. Hill, supra, 67 Cal.2d at p. 120.) If there were any reasonable probability that appellant’s jury relied only on evidence of flight to establish his guilt, we would agree with him. (People v. Watson, supra, 46 Cal.2d 818.) But no such reasonable probability exists here. Appellant was observed by Hughes filling his shopping cart with items and leaving the store without paying. He was seen by Stevenson at Stevenson’s home near the store only moments after the theft. The jury also saw the store surveillance video of appellant placing items in his cart and taking them to the self-checkout area. His attempt to evade capture by Officers Shihrer and Vasquez was not nearly as significant as the fact that the officers located and captured appellant shortly after the thefts occurred, and at a location near the Home Depot from which appellant had just stolen the merchandise. Nor are we persuaded by appellant’s argument that the hung jury in his first trial somehow shows prejudice from the absence of a flight instruction in his second (this) trial. We do not know why appellant’s first jury was unable to reach a verdict, but nothing in the record on this appeal presents any reasonable probability that his second jury convicted him solely because of his attempt to evade apprehension by the officers. The record shows that the jury retired to deliberate at 10:45 a.m. on June 11, 2008, deliberated until 11:55 a.m., broke for lunch, reconvened at 1:30 p.m., and reached a verdict not later than 2:25 p.m.
Appellant argues that “[i]n the absence of the limiting language, there is a permissive inference that evidence of flight is sufficient to find guilt” and that “[t]his inference denies the defendant due process.…” For this proposition he cites People v. Mendoza, supra, but nothing in Mendoza so holds. Mendoza rejected an argument that the giving of the CALJIC No. 2.52 flight instruction (not the absence of it) impermissibly directs the jury to make only one inference and unconstitutionally lessens the prosecution’s burden of proof. “The instruction is not argumentative; it does not impermissibly direct the jury to make only one inference. Finally, defendant contends the instructions unconstitutionally lessens the prosecution’s burden of proof. It does not. [Citation.]” (People v. Mendoza, supra, 24 Cal.4th at pp. 180-181.)
COUNT TWO
Appellant contends that his count two conviction for petty theft with a prior should be reversed and stricken because that crime is a lesser included offense of his count one conviction for grand theft. Respondent concedes the error and agrees that the count two conviction should be stricken. (See People v. Schoaff (1993) 16 Cal.App.4th 1112, 1116.)
DISPOSITION
Appellant’s count two conviction for petty theft with a prior (§ 666) is ordered stricken. In all other respects, the judgment is affirmed.