Filed 6/21/17 P. v. Rhodes CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,
Plaintiff and Respondent,
v.
WILLIE ORSILLIS RHODES,
Defendant and Appellant.

A147567

(Marin County
Super. Ct. No. SC190500A)


Defendant Willie Orsillis Rhodes appeals a judgment convicting him of spousal abuse and other related offenses and sentencing him to 17 years in prison. On appeal, he contends the court erred by instructing the jury with the standard flight instruction pursuant to CALCRIM No. 372 and by failing to instruct the jury on how to consider circumstantial evidence in accordance with CALCRIM No. 224. He also contends the court abused its discretion in refusing to strike his prior strike conviction. We shall affirm.
Factual and Procedural History
Defendant was charged by amended information with corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)); false imprisonment by violence (§ 236); criminal threats (§ 422); kidnapping (§ 207, subd. (a)); dissuading a witness from attending or giving testimony (§ 136.1, subd. (a)(2)); dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2)); and disobeying a court order (§ 166. subd. (a)(4)). The information alleged further that defendant had suffered a prior strike conviction (§§ 667, subds. (b)-(i)), 1170.12), a prior serious felony conviction (§ 667, subd. (a)(1)), three prior prison terms (§ 667.5, subd. (b)) and had committed the offenses while on parole (§ 1203.085, subd. (b)).
The following evidence was presented at trial:
The victim testified that she and defendant had been married since July 30, 2013, and were living together in Fairfax, California. Both she and defendant had been in treatment for drug and alcohol addiction and she suffers from bipolar disorder and takes medications to stabilize her moods.
On the evening of September 17, 2014, the victim and defendant argued before going to sleep. When she awoke at about 1:00 a.m., defendant was gone. When defendant returned home about 10:00 a.m., they continued to argue throughout the day. About 5:00 p.m., defendant began physically abusing her. Defendant choked her until she was almost unconscious. He also punched, slapped, kicked and spit on her while she lay on the bed. When she tried to escape, defendant pinned her to the ground and beat her. Defendant put a chair against the door to prevent her escape. In order to prevent her from calling anyone, defendant placed both his and the victim’s cell phone on the nightstand next to him. While she was trapped in the apartment, defendant called the victim’s parents and told them she had relapsed on drugs.
The abuse continued throughout the night until they left the apartment about 8:00 a.m. on September 18. Defendant told the victim they were going to her parents’ house in Foster City, but once they got in the car, defendant told her they were going to his brother’s house in Stockton. Defendant told her he was going to have his brother’s girlfriend beat her again and that he was going to get a gun, shoot her, and throw her body in a ditch.
When defendant stopped for gas in Fairfield, the victim exited the car and ran into the convenience store attached to the gas station. She approached a store employee and asked them to call 911 because she was the victim of domestic violence. As she did this, defendant entered the store and tried to lure her outside by saying that her father was on the phone and wanted to speak with her. She refused to take the call and went with the employee to the back of the store to call 911.
A recording of her 911 call was played for the jury. In it she says, “my husband has beaten me since last night and I’m trying to get away from him.” She told the dispatcher that she was at the gas station and that she thought defendant had left.
When the police arrived, they sent her to the hospital for treatment. The victim had swelling and tenderness on her face, bruises on her arms, thighs and stomach and a cut on her lower lip. The victim called her parents from the hospital.
The victim’s father testified that he spoke with defendant three times on the morning of September 18. During the third phone call, defendant told the father he left the victim at a gas station because she refused to get back into the car. When the victim’s parents met the victim at the hospital, she told them that defendant had beaten her the night before and that he was lying to them about her drug use. The victim’s parents did not observe the victim to be having a bipolar episode or to be under the influence of methamphetamine while at the hospital.
After staying with her parents for a few days, the victim received a letter from defendant saying that he loved her and that he was sorry. Although her parents disapproved, the victim decided to give defendant another chance. The victim moved out of her parents’ home and into the home of defendant’s brother. In conversations with defendant while he was being held in county jail, defendant told the victim to say that she was off her medication at the time she made the police report and was panicked and stressed out because she though defendant was leaving her. He asked her to call his attorney and tell him that she would refuse to go to court. He also told her to say that her injuries were the result of a fight with some women in San Rafael. He apologized for mistreating her and said that he loved her and wanted to be with her. The jury heard recordings of the calls made to the victim from jail.
Defendant’s ex-wife testified regarding a prior domestic violence incident involving defendant. She testified that she and defendant were married for 11 months. On February 9, 2012, defendant held her hostage in their bedroom, beat her and threatened to kill her. As a result of the assault, she suffered two black eyes and an injury to her lip. Following his arrest, defendant wrote her letters saying that he was sorry, would never do it again, and that he loved her. She refused to speak with him or to respond.
Defendant’s neighbor testified that he did not hear any yelling, fighting, or furniture moving around defendant’s apartment on the night of the alleged incident, despite the walls between his and defendant’s apartment being very thin.
A friend of defendant testified that, at defendant’s request, she helped the victim find a job and a place to live while defendant was in jail on the pending domestic violence charges. During that time, the victim told her that she had gone off her medications and went “berserk” when defendant asked her for a divorce. The victim never said that defendant had beaten her up.
A psychiatrist reviewed the victim’s medical records and testified that the victim had been diagnosed with bipolar disorder. He reviewed the medication she had been prescribed to control her disorder and testified that her medical records showed that, contrary to her doctor’s orders, she had stopped taking her medications in late August and early September 2014.
On November 30, 2015, the jury convicted defendant of inflicting corporal injury, false imprisonment, the two counts of dissuading a witness, and disobeying a court order. It acquitted him of kidnapping and making criminal threats. Following defendant’s waiver of a jury trial on the priors, the court found true the allegations regarding the prior convictions and prison terms and found that defendant was on parole at the time of the current offenses.
After denying defendant’s request to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) and section 1385, the court sentenced defendant to a term of 17 years in prison. The court imposed the upper term of four years doubled to eight as a second strike on the infliction of corporal punishment conviction, a consecutive sentence of the middle term of two years doubled to four years on the conviction for dissuading a witness from giving testimony, plus five years for the prior serious felony conviction.
Defendant timely filed a notice of appeal.
Discussion
1. CALCRIM No. 372
The jury was instructed pursuant to CALCRIM No. 372 as follows: “If the defendant fled 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, 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.” Defendant contends there was no substantial evidence of flight to support the giving of this instruction. We disagree.
“In general, a flight instruction ‘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.’ [Citation.] ‘ “[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. Bradford (1997) 14 Cal.4th 1005, 1055.)
Here, the evidence supported the inference that defendant left the gas station to avoid arrest by the police. As the trial court observed, there was evidence that defendant knew the victim was calling the police and that while one ordinarily leaves a gas station after pumping their gas, most people do not abandon their spouse at a station that is a great distance from their home. The fact that defendant was arrested without incident the following day when he returned to their apartment may support a contrary inference, but it does not negate the reasonable inference that his departure was motivated by a consciousness of guilt.
Even were we to conclude that the instruction should not have been given, it was clearly harmless because “the instruction did not assume that flight was established, leaving that factual determination and its significance to the jury.” (People v. Visciotti (1992) 2 Cal.4th 1, 61; People v. Watson (1956) 46 Cal.2d 818, 836.)
2. CALCRIM No. 224
The court instructed the jury with CALCRIM No. 225 concerning the evaluation of circumstantial evidence but defendant contends the court erred by failing to instruct the jury with CALCRIM No. 224. CALCRIM No. 224 reads, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable.”
A trial court is required to instruct the jury with CALCRIM No. 224 only “when it is applicable. [Citations.] It is applicable only when the prosecution substantially relies on circumstantial evidence to establish any element of the case. [Citations.] The instruction should not be given where circumstantial evidence is incidental to and corroborative of direct evidence. [Citations.] [¶] CALCRIM No. 225 is to be used in place of CALCRIM No. 224 ‘when the defendant's specific intent or mental state is the only element of the offense that rests substantially or entirely on circumstantial evidence.’ [Citations.] CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence, but CALCRIM No. 224 is more inclusive.” (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1171-1172, fn. omitted.)
The trial court concluded that CALCRIM No 225 rather than No. 224 should be given because there was no element of any offense charged, other than those requiring a finding of specific intent, that substantially relied on circumstantial evidence. Defendant disagrees. He argues that “there were several aspects of the prosecutor’s case that rested on circumstantial evidence to prove the elements of the charged crimes. [Citations.] For example, [the ex-wife’s] testimony regarding propensity evidence admitted under Evidence Code section 1109 was circumstantial evidence of the charged crimes. Similarly, all of the evidence offered to corroborate [the victim’s] credibility and version of events was circumstantial, such as the jury’s interpretation of the video and her behavior while in the store. Finally, [the victim’s] extrajudicial statements during the 911 call regarding the spousal abuse and false imprisonment charges was circumstantial and offered to prove those crimes and support [her] credibility. Finally, [defendant’s] ‘flight’ from the [gas station] was merely circumstantial evidence of his conduct with [the victim].”
The victim’s testimony regarding defendant’s conduct is direct evidence of defendant’s guilt on each count. As the trial court explained, while the evidence cited by defendant is certainly “relevant to the credibility and accuracy of the [victim’s] testimony,” this “is really a direct evidence case.” The significance or amount of the circumstantial evidence does not determine the applicability of CALCRIM No. 224. (See People v. McKinnon (2011) 52 Cal.4th 610, 676 [“[T]he fact that strong circumstantial evidence bolsters, corroborates, or supports the direct evidence of guilt does not mean [CALCRIM No. 224] must be given sua sponte.”].) Accordingly, the court did not err by instructing the jury with CALCRIM No. 225 rather than No 224.
3. Romero Motion
As noted above, the four year and two year terms imposed on the spousal abuse and dissuading a victim counts were doubled because of defendant’s prior strike conviction. Prior to the sentencing hearing, defendant moved the court pursuant to Romero, supra, 13 Cal.4th 497 to dismiss his prior strike conviction. Defendant contends the trial court abused its discretion in denying the motion because his “current and prior conviction and the facts of his case put him outside the spirit of the Three Strikes law.”
The court’s discretion to dismiss or strike prior felony conviction allegations in cases that are brought under the “Three Strikes” law is limited to instances in which dismissing such strikes is in the furtherance of justice, as determined by giving “ ‘ “consideration both of the constitutional rights of the defendant, and the interests of society represented by the People.” ’ ” (Romero, supra, 13 Cal.4th at pp. 529-530.) Thus, the court may not strike a sentencing allegation “solely ‘to accommodate judicial convenience or because of court congestion’ [citation], [or] simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if ‘guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant,’ while ignoring ‘defendant's background,’ ‘the nature of his [or her] present offenses,’ and other ‘individualized considerations.’ ” (Id. at p. 531.) In deciding whether to dismiss a strike “ ‘in furtherance of justice’ pursuant to . . . section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The sentence to be meted out to the defendant “is also a relevant consideration . . . ; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences.” (People v. Garcia (1999) 20 Cal.4th 490, 500.)
Here, defendant’s prior strike conviction was his 2012 conviction for making criminal threats, which arose out of the spousal abuse incident about which his ex-wife testified in the present trial. The record establishes that defendant pled no contest to the charge pursuant to a plea agreement in exchange for a two year prison term. Defendant suggests that the prior conviction should be stricken because the criminal threat charge was not the primary offense. He explains, “In the 2012 case, the prosecutor did not consider the criminal threats offense the primary crime. Instead, the case was charged as a battery case with the criminal threats offense being a secondary count. Consistent with this belief, the prosecutor at the time offered appellant a plea deal where he agreed to do more prison time in exchange for the prosecutor dismissing the criminal threats charge. Against the advice of defense counsel, appellant agreed to plead guilty to the criminal threats charge in exchange for less custody time.”
While the trial court acknowledged that defendant “may well have made a bad decision” when he accepted the plea agreement for the strike offense, the court had no doubt as to his guilt. The court explained that when defendant’s ex-wife testified in the courtroom, he could “see, even then, several years after those events, that she was still terrified by what had happened to her and what happened to her in front of her children at the hand of [defendant].” The court continued, “And then, listening to that testimony, it was strikingly similar and, in a way, chilling in that it was similar to what the other victim . . . suffered through.”
With respect to the current charges, defendant argues that he has no previous history of being violent or aggressive with the victim and attributes some responsibility for the current offenses on his diagnosed mental illnesses which he argues prevent him from thinking clearly. He also notes his difficult and impoverished childhood in which he watched both parents die and was physically and mentally abused by several of his mother’s boyfriends and staff at a Boy’s Ranch in Arizona. The court found, however, that given his record and his attempt to persuade the victim not to participate in these proceedings that it would be an abuse of discretion to strike the prior conviction in this case.
The trial court’s reasoning is sound. There was no abuse of discretion in denying the motion to strike.
Disposition
The judgment is affirmed.



Pollak, J.


We concur:

McGuiness, P.J.
Jenkins, J.














A147567