Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BA329341 William N. Sterling, Judge.
James Koester, under appointment by the Court of Appeal, and Law Offices of James Koester for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, and Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, P. J.
Anthony Wilson appeals from the judgment entered following a jury trial in which he was convicted of the sale of cocaine and his admission that he had suffered a prior felony conviction under the “Three Strikes” law. Defendant was sentenced to six years in state prison and contends that the trial court erred in instructing on consciousness of guilt based on suppression of evidence. We affirm.
BACKGROUND
On September 20, 2007, a “buy team” of Los Angeles police officers was in the downtown area seeking to make arrests for street-level narcotics sales. Around 4:45 p.m., Detective Pedro Rodriguez, who was wearing plain clothes and walking northbound on Ceres Street just north of Seventh Street, saw defendant standing on the sidewalk about 50 feet north of Rodriguez’s location. A woman straddling a bicycle next to defendant was lighting a glass pipe. Rodriguez continued walking north and as he approached defendant, defendant said a slang term for rock cocaine. Rodriguez asked for $10 worth, following which defendant “produced a small clear plastic bindle which contained some off-white solid that resembled rock cocaine, and . . . opened the bindle and . . . handed [two small pieces of rock cocaine to Rodriguez].” In return, Rodriguez handed defendant two $5 bills, which had previously been photocopied.
Following this transaction, Rodriguez continued to walk northbound on Ceres and, using a hidden transmitter, informed nearby officers that a narcotics violation had occurred. Upon doing this, Rodriguez turned around and saw defendant walking southbound on Ceres. Defendant then started to run southbound when a police unit arrived. As defendant continued to run, Rodriguez lost sight of him.
Officer Romeo Rubalcava, who was “working as a point officer for Officer Rodriguez,” saw the transaction from a vantage point “directly across” Ceres Street. (Other officers were also nearby.) When a signal was made that a narcotics transaction had taken place, one of the other officers “directed chase officers to the location where [defendant] was located.” As soon as these officers, who were in uniform, arrived at the scene, defendant started to run south on Ceres. He then turned west on Seventh. Rubalcava endeavored to keep defendant in sight, knowing that defendant might try to discard something he was carrying. Rubalcava lost sight of defendant for a “few seconds” when defendant turned on Seventh, but saw defendant again as Rubalcava also turned on Seventh.
Rubalcava kept defendant in his sight until defendant was detained by other officers. When officers searched defendant, he was not in possession of any narcotics or the $5 bills which Rodriguez had given him. During the time Rubalcava was able to see defendant, he did not observe defendant make any motions as if throwing or discarding something. Rubalcava explained that he had been doing this type of police work for five years, and sometimes suspects are able to discard money in a manner that is not obvious.
Defendant did not present any evidence in his behalf. In closing argument to the jury, he focused on the brief amount of time that officers were able to see him on Seventh Street and on inconsistencies between Rodriguez’s and Rubalcava’s descriptions of the locations of other officers on the buy team. Defendant further noted that the area has many transients and that a reasonable interpretation of the evidence is that officers “lost sight of [defendant] and the chase officers got the wrong guy, and that also explains why [defendant] had no marked money on him, that [defendant] had no drugs on him.”
DISCUSSION
Over defendant’s objection, the trial court instructed the jury under CALCRIM No. 371 (Consciousness of Guilt: Suppression and Fabrication of Evidence) as follows: “If the defendant tried to hide evidence, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.”
Defendant contends that giving this instruction constituted prejudicial error. We disagree.
Citing the rule that instruction on consciousness of guilt may be given only if there is sufficient evidence to support it (see People v. Hart (1999) 20 Cal.4th 546, 620), defendant argues that the evidence was insufficient here because Rubalcava did not see defendant make any motions as if throwing or discarding something during the time he had defendant under observation. But apart from Rubalcava’s testimony that suspects are sometimes able to discard objects without being detected, Rubalcava’s ability to see defendant was interrupted for a “few seconds” when defendant turned the corner, which provided an opportunity for defendant to rid himself of incriminating evidence. Indeed, it was this short period of time that provided the basis for defendant’s argument to the jury that officers lost sight of the person who sold the cocaine to Rodriguez and then wrongly detained defendant. As such, CALCRIM No. 371 was adequately supported by the evidence.
Defendant further contends that the instruction was unfairly argumentative. Although defendant acknowledges that pattern instructions on consciousness of guilt have consistently been upheld (see, e.g., People v. Holloway (2004) 33 Cal.4th 96, 142; People v. Jackson (1996) 13 Cal.4th 1164, 1223–1226), he nevertheless asserts that because the instruction was not supported by substantial evidence, the instruction here “actually highlighted a substantial deficiency in the prosecution’s case.” There is no basis in the law or in the record of this case to support defendant’s contention, which must therefore be rejected.
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., HASTINGS, J.
Retired Associate Justice of the Court of Appeal, Second Appellate District, Division Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.