Filed 8/21/17 P. v. Morales CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Stephanie Sontag, Judge. Affirmed.

Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael R. Johnsen and Max Carter-Oberstone, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Alejandro Morales guilty of attempted robbery on an aiding and abetting theory. (Pen. Code,[1] §§ 211, 664.) Morales admitted to having one prison prior (§§ 667.5, subd. (b), 668), and the court found Morales had been convicted of a strike offense (§ 667, subds. (b)-(i)). The court imposed a sentence of three years eight months.

Morales challenges the sufficiency of the evidence to support his conviction, and contends the court erred in giving a flight instruction (CALCRIM No. 372). We reject these contentions and affirm the judgment.

FACTUAL SUMMARY

On an evening in December 2015, a manager (Manager) was working at the front desk of a San Ysidro hotel, when he noticed two shadows from behind a column outside the large front window. The Manager then saw two men (later identified as Morales and Mario Guerrero) in the security monitor. Although it was relatively mild weather, the two men were wearing jackets and caps. The men were speaking to each other, and were looking around in all directions. The Manager was the only person in the hotel lobby.

The Manager attempted to lock the lobby front doors, but the locking mechanism did not work. A hotel security camera showed that moments later, Guerrero nudged Morales twice as Guerrero walked towards the lobby front door. Guerrero then entered the lobby and told the Manager to "pop it up." Guerrero pulled up his jacket, revealing the wooden handle and metal trigger of a large gun protruding from his pants. During this initial confrontation, Morales was standing outside the lobby window watching Guerrero and the Manager. Morales then left the front window area and appeared to walk towards the side of the lobby.

In response to Guerrero's demands, the Manager told Guerrero he could take whatever he wanted but the hotel did not keep cash, and pointed to a sign indicating no cash was accepted. Guerrero then became more aggressive, exclaiming to the manager, "you are upsetting me, you are upsetting me." Guerrero pulled up his jacket and grabbed the gun a second time. As he was doing this, Guerrero twice glanced at the side window, and then Guerrero abruptly turned and exited the building seconds before a customer entered the lobby. The Manager phoned 911.

Morales was waiting for Guerrero outside, and the two men then left together. Rather than leave by the sidewalk, Morales and Guerrero walked quickly towards a storage shed near a fence in the hotel parking lot. They climbed on the storage shed and used it to jump over the fence into the property of another business. Shortly after, a surveillance camera captured Morales and Guerrero walking together through the parking lot of a nearby gas station.

When the responding police officers arrived at the hotel, they did not find the suspects, but they obtained still images of the two men from the hotel security tapes and distributed those images to patrol officers. The following day, a police officer recognized Morales as one of the individuals, and identified Guerrero as a person who had been "walking around with" Morales near the hotel during the previous several weeks. Officers detained Morales later that day, but then released him. Morales was later arrested for the crime.

Morales and Guerrero were tried in a joint trial on attempted-robbery charges. Neither defendant testified, nor presented any affirmative witnesses. The prosecution charged Guerrero as the main perpetrator, and his defense was to challenge the identification evidence, arguing that he was not the person who confronted the Manager with a gun.

The prosecution's theory as to Morales was that he was an aider and abettor to the attempted robbery. Morales conceded his identity, but argued there was insufficient evidence supporting that he provided any assistance to the perpetrator, particularly because there was no direct evidence showing the two "plan[ned] anything out." Defense counsel maintained that Morales had no motive to commit the crime because he was employed, and noted that he did not flee the area after his initial detention, showing that he had "nothing to hide because he is not guilty." His counsel argued Morales was "a man in the wrong place [at the] wrong time."

After a brief deliberation, the jury found both defendants guilty of attempted robbery. (§§ 211, 664.)

DISCUSSION

I. Claimed Instructional Error

Morales contends the trial court erred in instructing the jury on the relevance of evidence of a defendant's flight after a crime has been committed. (CALCRIM No. 372.)

Over Morales's objection, the court instructed the jury on flight and consciousness of guilt as follows: "If the defendant fled or tried to flee 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 or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself." (See CALCRIM No. 372.)

A court is required to give this instruction if the prosecution relies on evidence of defendant's flight "as tending to show guilt." (§ 1127c.) A flight instruction is proper if there is evidence from which the jury could reasonably infer that the defendant's departure from the crime scene was motivated by an awareness of guilt. (People v. Cage (2015) 62 Cal.4th 256, 285.) Flight does not require " ' " 'the physical act of running nor the reaching of a far-away haven' " ' " (ibid.), but it does require "a purpose to avoid being observed or arrested" (People v. Crandell (1988) 46 Cal.3d 833, 869; accord, People v. Lucas (1995) 12 Cal.4th 415, 470-471). A flight instruction should not be given if there is no evidence "from which a jury could reasonably infer that [the defendant] left to avoid being observed or arrested." (Crandell, at p. 869.) The facts of each case determine whether it is reasonable to infer that flight shows consciousness of guilt. (See People v. Mason (1991) 52 Cal.3d 909, 941.)

Morales contends there was insufficient evidence to support giving this instruction. We disagree. The evidence supported an inference that the manner in which Morales left the hotel premises reflected his desire to avoid detection, and thus a consciousness of guilt. Immediately after Guerrero exited the hotel lobby and the new customer walked into the lobby, Guerrero and Morales walked to the side of the hotel parking lot, climbed on a shed, jumped a fence, and walked quickly through a gas station toward a busy street. Although the nature of this departure could have been consistent with innocent behavior, it is also reasonable to infer the pair realized the Manager would call the police, and thus they sought to avoid apprehension by jumping over a wall where they would not encounter approaching officers and could not be followed by a police car.

The fact that Morales did not run does not mean he did not have a consciousness of guilt. Because running from a crime scene can call attention to the individuals and create immediate suspicion, a guilty individual may choose to walk quickly away. Moreover, the existence of several explanations for the defendant's departure goes to the weight of the flight evidence, and not to whether the instruction was proper. (People v. Perry (1972) 7 Cal.3d 756, 771-774, overruled on another ground in People v. Green (1980) 27 Cal.3d 1, 28.) The instruction allows the jury to decide whether flight occurred, what weight to give the evidence, and whether there was an alternative explanation for the defendant's departure. (See People v. Lucas, supra, 12 Cal.4th at p. 471.)

Morales alternatively contends the instruction lessened the People's proof burden and violated his due process rights because the instruction "sets forth a 'permissive inference or presumption' " and thus improperly "encouraged the jury to make an inference for which there was no factual basis." This argument has been rejected by other Courts of Appeal, and we find their reasoning persuasive. (See People v. Price (2017) 8 Cal.App.5th 409, 455-458; People v. Paysinger (2009) 174 Cal.App.4th 26, 30-32; People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1157-1159.) As both Price and Hernández Ríos point out, the California Supreme Court in People v. Mendoza (2000) 24 Cal.4th 130 rejected an analogous challenge to CALCRIM No. 372's predecessor, when the defendant argued the instruction created an unconstitutional permissive inference because it could not "be said with ' "substantial assurance the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." ' " (Mendoza, at p. 179; see Price, at pp. 455-456; Hernández Ríos, at p. 1159.)

According to Mendoza, "[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury." (People v. Mendoza, supra, 24 Cal.4th at p. 180.) Under this standard, permitting a jury to infer that a defendant's flight immediately after committing a crime indicates a consciousness of guilt, does not violate due process. (Ibid.; People v. Price, supra, 8 Cal.App.5th at p. 456; People v. Hernández Ríos, supra, 151 Cal.App.4th at p. 1158.)

II. Sufficiency of the Evidence

Morales next contends the evidence was insufficient to support his attempted robbery conviction on an aiding and abetting theory.

In evaluating the sufficiency of the evidence, the "relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 319.) "[T]he court 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.)

" 'Although a jury must acquit if it finds the evidence susceptible of a reasonable interpretation favoring innocence, it is the jury rather than the reviewing court that weighs the evidence, resolves conflicting inferences and determines whether the People have established guilt beyond a reasonable doubt.' [Citation.] ' " 'If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' " ' " (People v. Casares (2016) 62 Cal.4th 808, 823-824.)

Robbery requires the specific intent to take the victim's property and the use of force or fear against the victim. (See § 211; People v. Anderson (2011) 51 Cal.4th 989, 994.) "The crime of attempt occurs when there is a specific intent to commit a crime and a direct but ineffectual act done towards its commission." (People v. Bonner (2000) 80 Cal.App.4th 759, 764.) To prove a person is guilty on an aiding and abetting theory, the prosecution must establish the defendant knows of the perpetrator's unlawful purpose and specifically intends to, and does, aid, facilitate, promote, encourage or instigate the perpetrator's commission of that crime. (People v. Cooper (1991) 53 Cal.3d 1158, 1164.) " 'Among the factors which may be considered in making the determination of aiding and abetting are: presence at the scene of the crime, companionship, and conduct before and after the offense.' " (People v. Nguyen (2015) 61 Cal.4th 1015, 1054.)

The jury was properly instructed on these principles, and its finding that Morales was guilty of the attempted robbery establishes that it found the prosecution met its burden on these elements. Substantial evidence supported this finding.

The evidence showed that Morales assisted in preparing for the crime and acted as a lookout during the attempted robbery. He and Guerrero spoke while standing outside the hotel lobby, and both looked around in all directions, presumably to ensure that there was no one who would interfere with the intended robbery. The evidence showed Morales was not a hotel guest, nor did he have a hotel reservation. Immediately before Guerrero went into the lobby, he nudged Morales, signaling him that the crime had begun and to pay attention. When Guerrero first went into the lobby, the security tape shows Morales standing up against the glass wall watching Guerrero ask the Manager for cash while displaying the gun. Shortly after, Morales disappears from view of the front lobby. While continuing to demand the cash, Guerrero glanced at this side window. Although the Manager did not see Morales at the side window and the camera did not capture this view, a jury could infer Morales's presence at the side window based on Guerrero's actions in twice turning his head to the side and then abruptly leaving the lobby seconds before the customer walked through the door. Guerrero and Morales then quickly leave the area together in what appeared to be a preplanned surreptitious route. Without any apparent reflection, they climbed on a shed, over a fence, and then through a gas station near a busy public street.

Viewing the evidence in the light most favorable to the prosecution, it was reasonable for the jury to infer that Morales and Guerrero "were companions acting in concert according to a common plan such that [appellant] had foreknowledge of the [robbery] and harbored the intent to encourage or facilitate it." (In re Gary F. (2014) 226 Cal.App.4th 1076, 1081; see People v. Campbell (1994) 25 Cal.App.4th 402, 409; People v. Lodge (1963) 212 Cal.App.2d 410, 413 [presence at the scene of the crime, coupled with "the additional evidence of the circumstances preceding, attending and following its perpetration are legally sufficient to warrant the conclusion that appellant was a participant"].)

Evidence showing a defendant was a lookout "is sufficient to base an inference that [the defendant] was aiding and abetting in the commission of a particular robbery." (People v. Masters (1963) 219 Cal.App.2d 672, 680; accord In re Gary F., supra, 226 Cal.App.4th at p. 1081 ["a lookout necessarily encourages and facilitates the commission of the offense. 'Such conduct is a textbook example of aiding and abetting.' "]; People v. Swanson-Birabent (2003) 114 Cal.App.4th 733, 743-744.)

In challenging the sufficiency of the evidence, Morales repeats arguments his counsel unsuccessfully made to the jury. For example, he notes there was no direct evidence the two planned the robbery together; Morales did not act as an effective look-out; and Morales had no motive to participate since he was employed. These arguments do not negate the evidence supporting the jury's findings. The fact that certain factual inferences could be made to support Morales's defense does not mean the jury's conclusion was unreasonable or unsupported.

Moreover, a defendant need not enter into a conspiracy, or even have any advance knowledge of the criminal act or purpose, to be found liable for aiding and abetting a crime. (See People v. Swanson-Birabent, supra, 114 Cal.App.4th at p. 742.) And it is not necessary for a prosecutor to produce direct evidence proving the aider and abettor acted with the requisite knowledge and purpose to commit robbery. (See People v. Hill (1998) 17 Cal.4th 800, 851-852.) Further, even if Morales did not effectively warn Guerrero, a lookout need not actually give a warning to be found guilty of aiding and abetting the commission of the crime. (See People v. Moore (1953) 120 Cal.App.2d 303, 306.) The fact that Morales could have been a better lookout does not establish the evidence was insufficient to support the jury's findings.

Morales's argument that he was simply at the wrong place at the wrong time was one possible (although farfetched) interpretation of the evidence. The jury had an ample evidentiary basis to reject this version of the events, and instead find that Morales acted to assist and encourage Guerrero to commit the attempted robbery. The core of Morales's appellate arguments is to request that we reconsider and reweigh the factual inferences made by the jury. This is not the role of an appellate court. (See People v. Staten (2000) 24 Cal.4th 434, 460.)

DISPOSITION

Judgment affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.