P. v. Membreno

Filed 10/12/06 P. v. Membreno CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard W. Stanford, Jr. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and James H. Flaherty, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Omar Membreno of assault with a deadly weapon (Pen. Code, § 245, subd. (a)); all statutory citations to this code unless noted), residential burglary (§ 459), criminal threats (§ 422), and dissuading a witness by force (§ 136.1, subd. (c)(1)). The jury also found allegations he used a knife (§ 12022, subd. (b)(1)) and that a nonaccomplice was present during the burglary (§ 667.5, subd. (c)(21)) to be true. He claims no evidence supported a flight instruction (CALJIC No. 2.52) and the court erred under Blakely v. Washington (2004) 542 U.S. 296 when it imposed consecutive terms. For the reasons expressed below, we affirm.

I

Around 8:00 p.m. on January 6, 2005, Membreno arrived at Reina Ortega’s Anaheim apartment to visit Candida Hernandez, who temporarily resided with Ortega and her three children. Hernandez informed Membreno she was ending their romantic relationship and she did not want him to come around anymore. A brief argument ensued but Membreno calmed down and according to Ortega, the couple shared a lengthy kiss before he left.

Membreno returned around 10:30 p.m. Angry, he barged into the apartment carrying a large knife and stabbed at but missed Ortega’s adult son Oscar. Membreno exclaimed he would wait for Hernandez and when she arrived she was “going to pay for everything.” He blamed the Ortegas for covering up her “other husband,” and threatened that everyone in the apartment was going to die. When Ortega threatened to call the police, Membreno warned he would “take it out on” her.

Ortega’s 11-year-old son took a phone into the bathroom and called 911. When police officers arrived, Membreno had his right hand behind his back and refused to comply with an officer’s request to show his hands. According to Ortega’s young son, Membreno ran into the bedroom. An officer testified Membreno walked backwards down the hallway into the bedroom. The officer followed with his gun drawn and ordered Membreno to raise his hands. Membreno complied. He held a large knife in one of his hands, but quickly dropped it on the bed. The officer arrested Membreno and found two additional knives in his pocket.

Following the jury’s guilty verdict, the trial court imposed a five-year aggregate term: the four-year midterm for burglary, a consecutive eight-month term for criminal threats, and a consecutive three-month term for using a knife.

II

Membreno contends the trial court erred by instructing on flight. The instruction provided, “The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his 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.” (CALJIC No. 2.52; see also CALCRIM No. 372.) The instruction is required in “any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt . . . .” (§ 1127c.)

Membreno asserts the instruction was unwarranted because there was no evidence he left the scene: “After the offense, [he] remained on the premises. [He] never departed from the scene. Rather, he went into a bedroom when the police arrived. That, in itself, would not constitute flight after commission of a crime.”

“A flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs, or of his escape from custody after arrest, logically permits an inference that his movement was motivated by guilty knowledge.” (People v. Turner (1990) 50 Cal.3d 668, 694 (Turner).) “‘[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.’” (People v. Visciotti (1992) 2 Cal.4th 1, 60, quoting People v. Crandell (1988) 46 Cal.3d 833, 869.)

Here, the prosecutor argued to the jury: “And, ask yourself, if defendant is so innocent, when the officers arrive at the door, why is he the one holding the knife in his hand? Why is he the one trying to hide it behind his back, walking backwards, running away from the cops to the bedroom?” (Italics added.) He continued, “Officers get there. . . . [Defendant] is the one with the knife in his hand. He is the one trying to hide the knife. He is the one that’s trying to run away from the cops.” (Italics added.)

The prosecutor relied on Membreno’s flight into the bedroom as tending to show guilt. An instruction in the form of CALJIC No. 2.52 “must be given whenever the prosecution relies on evidence of flight to show consciousness of guilt.” (Turner, supra, 50 Cal.3d at p. 694, original italics.) We have found no authority that holds “flight” cannot occur within premises where a crime has occurred. (Cf. People v. Bradford (1997) 14 Cal.4th 1005, 1055 [instruction proper where defendant left homicide victim’s apartment but remained in apartment building to pack his belongings, stating “‘I really got to get the hell out of here,’” and pleading with roommate to drive him out of town].) Membreno ran, or at least backed away quickly from the area where he lunged at Oscar and threatened the family. The evidence supported the inference that Membreno retreated to avoid detection of the knife and frustrate an imminent arrest.

Finally, flight, “if proved,” only permits an inference of guilt. Unless the jury found that Membreno’s conduct constituted “flight,” it would not apply CALJIC No. 2.52. The instruction does not overly emphasize the significance of the Membreno’s flight, but merely informs the jury that it may give the fact of flight whatever weight it deems appropriate. (See People v. Mendoza (2000) 24 Cal.4th 130, 181 [flight instruction does not unconstitutionally lessen prosecution’s burden of proof].) The court told the jury to disregard inapplicable instructions. (CALJIC No. 17.31; People v. Barnett (1998) 17 Cal.4th 1044, 1153-1154 [CALJIC No. 17.31 sufficiently advises jury to disregard inapplicable instructions including CALJIC No. 2.52].) Moreover, even if the jury found flight, the instruction cautioned the jury it could not infer guilt from flight alone. There was no error.

III

Membreno argues the trial court’s imposition of a consecutive sentence for criminal threats violated his right to a jury trial under the United States Supreme Court’s decision in Blakely v. Washington, supra, 542 U.S. 296. (See also United States v. Booker (2005) 543 U.S. 220.)[1] Membreno acknowledges we are bound by People v. Black (2005) 35 Cal.4th 1238 (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455) and raises the issue to preserve it in anticipation of further federal litigation. (See Cunningham v. California (No. 05-6551, cert. granted Feb. 21, 2006, ___ U.S. ___ [126 S.Ct. 1329].) In light of our Supreme Court’s decision in Black, we find no error in the trial court’s imposition of consecutive sentences.

Judgment affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] The trial court did not provide reasons for imposing consecutive rather than concurrent terms (see Cal. Rules of Court, rule 4.406(b)(5)) but Membreno does not raise this as error. (See People v. Scott (1994) 9 Cal.4th 331, 352-353 [party may not challenge trial court’s discretionary sentencing choices on appeal absent objection in trial court].)