P. v. Zambrano

Filed 6/22/07 P. v. Zambrano CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, William Birney, Judge. Affirmed.

Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

Mario Albert Zambrano appeals from judgment entered following a jury trial in which he was convicted of being a felon in possession of a firearm (Pen. Code,  12021, subd. (a)(1)) and his admission that he suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law (Pen. Code,  1170.12, subds. (a)-(d) and 667, subds. (b)-(i)). He was sentenced to prison for four years, consisting of the middle term of two years, doubled pursuant to the Three Strikes law and contends the court committed instructional error. For reasons stated in the opinion we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On May 12, 2006 at approximately midnight, Los Angeles Deputy Sheriff Francisco Enriquez and his partner Deputy Dean Camarillo were on patrol in a high crime area near the Huntington Motel on Florence Avenue in Huntington Park. At the motel, Deputy Enriquez saw appellant standing on the motels second tier. Appellants left side was facing the deputy and he saw appellant toss a blue jersey with his left hand down to a man in a wheelchair at the bottom of a staircase. Afterwards, appellant turned around and the deputy saw a shiny object resembling a handgun in appellants right hand. The area was illuminated with the patrol vehicles headlights and spotlights.

The deputies stepped out of their vehicle and drew their weapons. Deputy Enriquez ordered appellant to drop his gun and put his hands up. Rather than obeying the order, appellant, still holding the gun, walked at a rapid pace away from the deputies and turned into a corridor outside of the deputies view. When appellant walked away from the deputies, it appeared to be in response to seeing them. Once appellant was in the corridor, the deputies heard a loud noise as if something had hit the floor. Immediately they saw appellant step out of the corridor, without the gun and with his hands in the air, and walk down a stairwell. Deputy Enriquez entered the corridor and recovered a .380-caliber handgun with one bullet in the chamber and five bullets inside the magazine.[1]When appellant was arrested, he falsely told the deputies his name was Alberto Paldo. Another man had been standing at the entrance to the second floor corridor of the motel and walked away from appellant, almost walking past the officers, when appellant tossed the jersey.[2]

Appellant testified in his own defense that he had never handled or possessed the subject firearm. He claimed he had been arrested on May 10 rather than May 12. That evening he went to the motel to visit some female friends. Their room was on the second floor, and when he knocked on their door, no one answered. While he was standing at the railing in front of their room, two young men arrived at the parking lot level. One of them was in a wheelchair, and he asked appellant to throw down a shirt that was hanging on the railing. The second man came upstairs and retrieved another shirt that was hanging on the railing, and that is when the police arrived. The deputies told appellant and the other man to come downstairs, which they did. Appellant did not go inside the corridor out of the view of the deputies. Appellant admitted giving the deputies a false name. He admitted that he lied to police officers in the past relative to false names and birthdates.

Deputy Camarillo testified in rebuttal that he had documentation reflecting the date of the arrest was May 12.

DISCUSSION

Appellant contends the trial court erred by giving a modified flight instruction.[3] He asserts the instruction was erroneous for two reasons. First, the evidence of flight was too weak to support the required inference. Second, the court provided the prosecutors modified instruction which expanded the concept of flight to include attempted flight.

In deciding whether to give a flight instruction, the trial court observed the only action that could be described as flight would be appellants movement from his position on the second tier of the motel to the corridor and then within seconds reappearing. The court noted the instruction cuts both ways. And the prosecution may describe it as flight, but I think that will be a very weak argument, subject to significant criticism by the defense as to characterizing that little action as flight. [] So it seems to cut both ways.

Defense counsel objected because this action that the court has described is in factual dispute. [] The deputies, both of them, described that action but my client of course denies it. So that puts that movement by him, the alleged flight, in factual dispute. So its not a settled issue. Its not something that we can assume has been proven. Defense counsel added that giving an instruction regarding flight was a judicial approval of the prosecutions factual position about that little movement thats been described. The prosecution responded that the instruction itself did not state there was flight but rather that was for the trier of fact to decide. The court decided to give the instruction, noting the evidence of flight was very weak and subject to a great deal of criticism.

Penal Code section 1127c provides, In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, 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. The weight to which such circumstance is entitled is a matter for the jury to determine. A flight instruction is proper whenever evidence of the circumstances of defendants departure from the crime scene . . . logically permits an inference that his movement was motivated by guilty knowledge. [Citation.] (People v. Shea (1995) 39 Cal.App.4th 1257, 1270.)

Flight requires neither the physical act of running nor the reaching of a far-away haven. (People v. Cannady (1972) 8 Cal.3d 379, 391.) It does require however, a purpose to avoid being observed or arrested. [Citations.] (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Appellants refusal to obey the deputies orders and his walking at a rapid pace away from the deputies into a corridor where he was out of sight was substantial evidence to support giving the instruction. (See People v. Barton (1995) 12 Cal.4th 186, 201.) Further, the instruction acknowledged the possibility that flight might not have been shown by the evidence and it was for the jury to determine if it had. (See People v. Harris (1992) 10 Cal.App.4th 672, 675.) Additionally, the jury was instructed pursuant to CALJIC No. 17.31, inter alia, Whether some instructions apply will depend upon what you find to be the facts. Disregard any instruction which applies to facts determined by you not to exist. Do not conclude that because an instruction has been given I am expressing an opinion as to the facts.

Appellant now claims the instruction was erroneous because it expanded the concept of flight to include attempted flight. Having failed to make that argument at trial, he is precluded from raising it on appeal. (See In re Seaton (2004) 34 Cal.4th 193, 198-199.) Moreover, the instruction did not impermissibly expand the concept by adding the words attempted flight. Arguably, appellant did not successfully flee since he was apprehended. Additionally, the current jury instruction on a defendants flight as evidence of his or her consciousness of guilt includes the words where a defendant tried to flee. (See Judicial Council of Cal., Crim. Jury Instrs. (2006) CAL CRIM No. 372.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

MANELLA, J.

SUZUKAWA, J.

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[1] The gun was analyzed for fingerprints but none were found.

[2] This other individual was ordered to come downstairs with his hands up. Prior to obeying the order, he took a black handgun out of his waistband and placed it in a trash can. Deputy Enriquez retrieved this gun and both deputies determined it was a BB gun.

[3] The jury was instructed, The flight [or] attempted flight immediately after the commission of a crime, or after [a defendant] 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.