Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05WF2932, Thomas James Borris, Judge.
Lisa M. Bassis, 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, Jeffrey J. Koch, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
A jury convicted Michael John Viele of aggravated assault (Pen. Code, § 245, subd. (a)(1)) and mayhem (§ 203) and found true he personally inflicted great bodily injury on the victim (§ 12022.7, subd. (a)). On appeal defendant contends the court committed prejudicial error by instructing the jury on flight after crime. We disagree and affirm the judgment.
All statutory references are to the Penal Code.
For the most part, we state the facts in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We recognize defendant presented contrary testimony.
The victim, Matthew Fawson, lived in an apartment with his girlfriend, Caroline Cocozza, in the same building as defendant’s friend, Frankie. A few days before September 13, 2005, defendant asked if he could wait in Fawson and Cocozza’s apartment until Frankie returned home. Defendant spent two nights at their apartment. He and Fawson smoked marijuana. On occasion defendant became “really aggressive in conversation” and “talked about a couple fights that he had been in and a couple things he’[d] done to other people.”
At one point, when defendant left the apartment temporarily, Cocozza told Fawson she felt uncomfortable about letting defendant stay at the apartment. On the afternoon of September 13, 2005, defendant asked Fawson to drive him “to a friend’s house,” without disclosing specifically “where [they] were going.” Fawson decided to tell defendant during the drive that he (defendant) was no longer welcome to stay at the apartment.
In the car defendant turned on the radio to music that made Fawson feel uncomfortable. Defendant and Fawson argued about changing the music. Fawson said he would have to drop defendant off and “moved to pull [the car] over.” As Fawson “was pulling over, before [he] even had a chance to fully stop,” defendant with a closed fist struck him in the side of the face five times. Fawson could “feel things breaking in [his] face” and heard a loud ringing; his head hit the window a few times and he bled profusely. Defendant screamed, “Look what you made me do.” Fawson apologized to defendant because he was afraid defendant would hit him again. Fawson and defendant switched seats, and defendant drove them back to the apartment.
Defendant ran to the apartment and, seeming frantic, told Cocozza, “I’m sorry, I lost it. I hit him, and he has to go to the hospital.” Cocozza found Fawson in the car, “horribly upset and in pain,” screaming, “My face is broken.” Cocozza took him to the emergency room.
That night defendant phoned Fawson and asked, “How is your face?” Fawson asked, “Who is this?” and defendant replied, “Who the fuck do you think this is?” whereupon Fawson hung up.
Fawson suffered “multiple extensive facial fractures,” underwent extensive surgery (including the insertion of a titanium plate), and experienced vision loss in his right eye.
Defendant testified to a different set of events precipitating his attack on Fawson. According to defendant, he and Fawson were en route to buy methamphetamine from one of defendant’s contacts, but when defendant realized Fawson was “tripping,” he asked Fawson to drive them back to the apartment. Fawson, who had attempted suicide six to eight months earlier, “freaked out” and threatened “to crash the car into a pole” and kill them both if defendant did not buy some drugs because Fawson did not “care to live anymore.” When Fawson turned the car toward the pole and sped up, defendant hit him, knocking Fawson out. Defendant drove Fawson back to the apartment complex and told Cocozza to drive him to the hospital. Defendant grabbed his backpack from the apartment, then brought a bag of ice to Fawson. After sending Cocozza and Fawson on their way, defendant went to Frankie’s house and told people there he “didn’t even want to see anybody.” Defendant’s friend, Mark Brazney, then gave defendant a ride at defendant’s request to an apartment complex where some other friends lived.
DISCUSSION
Defendant contends the court prejudicially erred by charging the jury with the “flight after crime” instruction. He argues he “was not being pursued by police, and there was no evidence he tried to evade detection.” He concludes no evidence supported an inference his movements after the crime suggested his consciousness of guilt.
Over defendant’s objection, the jury was instructed with CALCRIM No. 372 as follows: “If the defendant fled immediately after the crime was committed, 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.”
Section 1127c requires a trial court, whenever “evidence of flight of a defendant is relied upon as tending to show guilt,” to instruct the jury that a defendant’s flight after committing a crime “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” and to which the jury may accord such weight as it deems appropriate. “In general, an instruction that flight may be considered along with other proven facts in determining guilt ‘“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.”’” (People v. Hoang (2006) 145 Cal.App.4th 264, 276.) “‘[F]light requires neither the physical act of running nor the reaching of a far-away haven’” (People v. Visciotti (1992) 2 Cal.4th 1, 61), nor must it be commenced within “a defined temporal period” (People v. Carter (2005) 36 Cal.4th 1114, 1182). “‘Flight manifestly does require, however, a purpose to avoid being observed or arrested.’” (People v. Visciotti, supra, 2 Cal.4th at p. 60.)
Defendant argues he “made no attempt to flee the scene or evade police” because he drove back to the apartment complex, “fetched Cocozza,” brought “ice for Fawson’s face,” waited until Cocozza and Fawson had left for the hospital, and only then went to another apartment complex. He concludes the evidence merely shows that he benignly left the scene, which “is different from fleeing, hiding or attempting to evade detection.” But the basis of defendant’s argument is that he left the apartment complex only after a passage of time, as opposed to immediately or promptly after committing the crime, and therefore he did not flee. As discussed above, however, a defendant’s departure need not be commenced within a certain timeframe to constitute flight. Here, defendant took his backpack from the apartment and asked a friend to drive him to another location — conduct consistent with a motive of avoiding arrest. From this evidence, the jury could infer, if they chose to, that defendant had guilty knowledge and therefore departed. Defendant also argues his phone call to Fawson shows he did not flee. But defendant does not contend the phone call in any way disclosed or revealed his location.
Because we conclude substantial evidence showed defendant fled, we need not address defendant’s argument that “[g]iven the absence of any evidence of flight, the flight instruction created an unconstitutional permissive presumption of guilt . . . .”
DISPOSITION
The judgment is affirmed.
WE CONCUR: MOORE, ACTING P. J. ARONSON, J.