P. v. Cunningham

Filed 3/9/06 P. v. Cunningham CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William McGrath, Judge. Affirmed.

I.

INTRODUCTION

A jury found James H. Cunningham guilty of assault with a firearm (Pen. Code,^[1] § 245, subd. (a)(2)), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and possession of a deadly weapon (§ 12020, subd. (a)(1)). The jury also found that

Cunningham personally used a firearm during the commission of the assault (§ 12022.5, subd. (a)). In the second portion of a bifurcated trial, Cunningham admitted that he had previously suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667, subds. (b)-(i), 668, 1170.12) stemming from a 1983 robbery conviction. The trial court sentenced Cunningham to 12 years in prison.

On appeal, Cunningham claims the trial court erred in: excluding evidence that one of the prosecution's witnesses had accused her husband of perpetrating domestic violence against her and later recanted the accusations; instructing the jury pursuant to CALJIC No. 2.52 regarding flight from the scene of a crime; and failing to instruct the jury pursuant to CALJIC No. 12.50 regarding a felon's right to use a firearm in self-defense. We affirm the judgment.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. The People's evidence

Jose Castro testified that on September 12, 2004, he was helping Rebecca Knox (Rebecca) and Christopher Knox (Christopher) pack because they were moving. Castro had been living with the Knoxes in their apartment. Cunningham lived in an apartment below the Knoxes' apartment. At some point during the evening, Cunningham came to the Knoxes' apartment and asked Castro for a vacuum that Rebecca had borrowed. Castro replied that Rebecca was not home. Some time later, from downstairs in the parking lot of the apartment complex, Cunningham shouted to Castro, "Where's my cell phone?" Cunningham then said, "I'll be right back."

Moments later, Cunningham "busted in the door" of the Knoxes' apartment, holding a short rifle. Castro and Rebecca were in the apartment and saw Cunningham come through the front door. Cunningham placed his hand on the trigger and, addressing Castro, said: "Where's my cell phone goddamn it? I want my cell phone back. You took my cell phone." Cunningham held the gun against Castro's throat. Castro grabbed a cordless telephone. Cunningham took the telephone from Castro and pushed him up against the wall with the gun. Cunningham then threw the telephone back to Castro and said, "Go ahead and call the cops. I'll come back and kill you all."

Castro testified that at this point, Christopher came out of a bedroom holding a baseball bat. Christopher took the telephone from Castro and told Cunningham to get out of the apartment. Cunningham began to leave the apartment. As Cunningham was leaving the apartment, heading to the parking lot of the complex, he continued yelling at and threatening Castro and Christopher.

Rebecca Knox testified that when she returned home on the evening in question, Christopher and Castro told her that Cunningham had asked them about his missing cellular telephone. Later, while Rebecca was in the living room of the Knoxes' apartment with Castro, Cunningham walked into the apartment through the open front door. Rebecca could see that Cunningham was holding a gun at his side. Cunningham began yelling at Castro, accusing him of taking Cunningham's cellular telephone and threatening to kill him. Castro denied having taken the phone. Cunningham put the gun to Castro's neck and pushed him backward. Castro grabbed a cordless telephone. Cunningham took the telephone from Castro and threw it into the hallway. At this point, Christopher came out of the bedroom holding a baseball bat and told Cunningham to leave. Cunningham then left the apartment.

While Cunningham was in the parking lot of the apartment complex, Christopher telephoned 911.^[2] The tape of the 911 call was played for the jury. On the tape, Christopher can be heard yelling, "Yep. You gonna let me have it tonight. I'm gonna shoot you in your face, you come up here again." Rebecca took the telephone from Christopher and said to the 911 operator, "He just pulled a fuckin' gun on me and my husband and my roommate." Later during the 911 call, the operator asked Rebecca whether Cunningham had shot anyone. Rebecca responded, "No. He fuckin' held it to my roommate's head. He slammed him to the ground with it."

At around 10:00 or 11:00 p.m. that night, Officer Stephen Paz of the El Cajon Police Department heard a radio dispatch regarding a disturbance at the apartment complex. The dispatcher provided a description of Cunningham and his truck. As Officer Paz was responding to the scene, he stopped at a traffic light. While stopped at the light, Paz saw a person driving a truck. The person and the truck matched the description he had heard over the radio. The driver of the truck was headed in the opposite direction from Paz. Paz made a U-turn and began to follow the truck. The driver of the truck ran a red light as he approached the entrance to a freeway. A second

police officer in another police car was also following the truck. Both officers turned on their overhead lights. As the driver of the truck began to merge onto the freeway, Paz saw the driver throw something out of the passenger window. Shortly thereafter, the officers were able to stop the truck, and took Cunningham into custody. Officer Paz retrieved the item he had seen Cunningham throw from the window. It was a shotgun.

After the incident, Cunningham was evicted from his apartment. A property manager found two guns in a closet while she was cleaning out Cunningham's apartment, and called police.

B. The Defense

Cunningham testified at trial. Cunningham lived in the same apartment complex as the Knoxes, and considered Rebecca to be a friend. Cunningham had initially been friendly with Christopher as well, but, over time, he and Christopher had grown hostile toward each other. Cunningham claimed that a couple of months prior to the events underlying the charged offenses, he had confronted Rebecca and Christopher about a bogus check Rebecca had deposited to his checking account. According to Cunningham, Christopher "flew off the handle" and threatened Cunningham with a baseball bat.

Castro and Rebecca also both testified that Cunningham and Christopher had gotten into several arguments with each other prior to the incident in question. Castro testified that he had heard Christopher threaten to kill Cunningham during these arguments.

On September 12, 2004, between 10:00 and 10:30 p.m., Cunningham returned to his apartment after work. He noticed that a screen to one of his windows had been pried open and that his daughter's bicycle, some clothes, his cellular telephone, and checks were missing from the apartment. Cunningham noticed that Rebecca, Castro and other people were outside on the Knoxes' balcony. Cunningham asked the people on the balcony whether they had seen anyone around his apartment. Cunningham believed that someone who was staying in the Knoxes' apartment might have taken his property. Cunningham said that the people on the Knoxes' balcony "got smart" with him and he went inside his apartment to "cool down."

Cunningham later went upstairs to the Knoxes' apartment and asked to speak to Rebecca. Castro told him she was not home, but that she would return in 10 or 15 minutes. Cunningham told Castro to tell Rebecca that he would be back. Cunningham then left the apartment complex and went to the laundry. When he returned, several people were on the Knoxes' balcony. Cunningham said he wanted to see Rebecca. Several people on the balcony yelled at him. Cunningham went inside his apartment and armed himself with a shotgun. Cunningham claimed he armed himself because, six months earlier, he had been assaulted by people who had been hanging around the apartment complex, and also because he was afraid of Christopher due to Christopher's prior threats.

Cunningham said he went upstairs to the Knoxes' apartment, with his shotgun, to attempt to retrieve his property. As Cunningham was standing in the doorway to the Knoxes' apartment, Christopher came toward him with a baseball bat. The door to the apartment began to close. Cunningham told the people inside the Knoxes' apartment that he would get back with them and that he was going to call the police. Christopher asked Cunningham what he was holding in his hand, and Cunningham told him it was a gun. Cunningham turned and began to walk down the stairs. He denied ever having pointed the gun at anyone.

Cunningham said that after this confrontation, he decided to leave the apartment complex. As he was leaving, Christopher yelled at him and threatened him. Cunningham got into his truck and drove onto the freeway. Cunningham noticed that the police were following him. He decided to throw the gun out of the car window because he feared being shot. Cunningham admitted he had two additional guns that he kept locked in a closet in his apartment.

C. Procedural History

In September 2004, the People charged Cunningham with burglary (§ 459) (count 1); assault with a firearm (§ 245, subd. (a)(2)) (count 2); possession of a firearm by a felon (§ 12021, subd. (a)(1)) (count 3); and possession of a deadly weapon (§ 12020, subd. (a)(1)) (count 4). With respect to count 1, the People alleged that the burglary was of an inhabited dwelling (§ 460) and that the dwelling was occupied at the time of the offense (§ 667.5, subd. (c)(21)), that Cunningham was ineligible for probation (§ 462, subd. (a)), and that Cunningham had personally used a firearm during the burglary (§ 12022.5, subd. (a)). With respect to count 2, the People alleged that Cunningham had personally used a firearm during the burglary (§ 12022.5, subd. (a)). The People also alleged that Cunningham had suffered a prior serious felony conviction (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior strike conviction (§§ 667 subds.(b)-(i), 668. 1170.12).

After a jury trial, the jury acquitted Cunningham of count 1 and found him guilty on counts 2, 3, and 4. The jury also found true the firearm allegation with respect to count 2. Cunningham admitted the prior strike and serious felony allegations. The court sentenced Cunningham to a total prison term of 12 years.

Cunningham appeals.

III.

DISCUSSION

A. The trial court did not err in excluding evidence of Rebecca's recantation

of domestic violence allegations against Christopher

Cunningham claims the trial court erred in excluding evidence that several years earlier, Rebecca had accused Christopher of perpetrating domestic violence against her and later recanted the accusations. Specifically, Cunningham argues that the trial court erred in excluding the evidence pursuant to Evidence Code section 352, and that the court's exclusion of the evidence violated his federal constitutional rights to confront adverse witnesses and to present a defense. We conclude that the trial court did not err in excluding this evidence, and that even if the exclusion of the evidence was error, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). We further conclude that the exclusion of this evidence did not violate Cunningham's constitutional rights.

1. Procedural background

During a pretrial conference, defense counsel requested permission from the court to impeach Rebecca at trial with evidence that she had previously accused Christopher of perpetrating domestic violence against her and later recanted the accusations. Counsel stated:

"Rebecca Knox will be testifying. Ms. Knox previously filed a report accusing her husband of a domestic violence situation. She then recanted the statements after her husband was arrested. Charges were dropped against him. I think this goes toward her credibility. Unfortunately, I left the file in my office, but I think it was from 2001. Of course, I would like to use that to impeach her in terms of her credibility today and what she said to the police at the time."

After argument from the People and defense counsel, the court ruled that the evidence would not be admitted:

"That will be excluded. It has relevance, no doubt about it. But in weighing it's relevance, versus the other factors, such as the time it will take to bring it in, the trial within a trial that it will most certainly require, its relevance is outweighed by those other factors under [Evidence Code section] 352, and therefore, it will be excluded and not referred to."

2. The trial court did not err in excluding the evidence pursuant to

Evidence Code section 352

Cunningham claims the trial court erred in excluding the proffered evidence pursuant to Evidence Code section 352. Cunningham maintains that the excluded evidence of Rebecca's recantation of her domestic violence allegations against Christopher was relevant to her credibility because it demonstrated that she had been untruthful either in making the accusations or in withdrawing them.^[3]

Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." More specifically, section 352 "'empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues. . . .'" (People v. Sapp (2003) 31 Cal.4th 240, 289 (Sapp), quoting People v. Wheeler (1992) 4 Cal.4th 284, 296.) A trial court's exclusion of evidence pursuant to Evidence Code section 352 is reviewed under the abuse of discretion standard of review. (Olson v. American Bankers Ins. Co. (1994) 30 Cal.App.4th 816, 826.)

A trial court's erroneous exclusion of evidence that does not impinge upon a defendant's constitutional rights is reviewed under the standard of prejudice adopted in Watson, supra, 46 Cal.2d at p. 836. (People v. Boyette (2002) 29 Cal.4th 381, 429 (Boyette).)^[4] Under the Watson standard, the reviewing court must affirm the judgment if it is "not reasonably probable that a result more favorable to defendant would have been reached in the absence of the error. . . ." (Watson, supra, 46 Cal.2d at p. 837.)

Evidence that Rebecca had previously recanted allegations that Christopher had perpetrated domestic violence against her was marginally relevant to her credibility in this case. The proffered evidence did not relate to the charged offenses. Nor was it relevant to establishing that Rebecca had made false accusations regarding similar crimes in the past. (Compare People v. Franklin (1994) 25 Cal.App.4th 328, 335 ["Just as a prior false accusation of rape is relevant on the issue of a rape victim's credibility [citation], a prior false accusation of sexual molestation is equally relevant on the issue of the molest victim's credibility"].) Further, victims of domestic violence often recant true allegations of such violence for reasons related to the relationship between the victim and the abuser, and not because the allegations are not true. (See People v. Brown (2004) 33 Cal.4th 892, 899 [discussing reasons for the frequent recantation of domestic violence allegations by victims of such violence].) In view of the marginal relevance of the proffered evidence, we conclude that the trial court acted within its discretion in excluding the evidence under Evidence Code section 352. (See, e.g., Sapp, supra, 31 Cal.4th at pp. 470-471 [concluding trial court acted within its discretion under Evidence Code section 352 in precluding defense cross-examination of psychiatrist in penalty phase of capital trial regarding whether he had submitted false MediCal claims in an unrelated matter years before petitioner's trial].)

Even assuming that the court erred in excluding the evidence under Evidence Code section 352, any such error was harmless. Most importantly, the evidence was of marginal relevance, for the reasons stated above. In addition, Cunningham was allowed to extensively cross-examine Rebecca regarding other matters bearing on her credibility, including her description of the incident and the relationship between the Knoxes and Cunningham.

Further, although Rebecca's testimony was important to the People's case, it was not pivotal since it was corroborated by Castro's testimony. While defense counsel attempted to impeach Castro with questions regarding his mental illness, Castro's testimony was both internally consistent and consistent with Rebecca's testimony. In addition, although Castro testified that his illness sometimes caused him to believe that people were attacking him in a manner similar to what transpired during the incident involving Cunningham, he also testified that medication controlled this symptom and that he had been taking this medication at the time of the incident.

Rebecca's testimony was also consistent with the statements she and Christopher made during a telephone call they placed to 911 as the incident was ending. Rebecca's testimony was not contradicted by any other evidence on any material point, other than by Cunningham's self-serving testimony.

Cunningham contends that excluding evidence of Rebecca's recantation of allegations of domestic violence on the part of Christopher was prejudicial under Watson because: (1) this was a "close case," evidenced by the fact that the jury acquitted him of count 1, in which he was charged with burglary; (2) the case turned on a credibility contest between Rebecca and Cunningham, and the error improperly bolstered Rebecca's credibility; and (3) conflicting inferences could be drawn from the evidence.

First, Cunningham's acquittal on a the burglary count, which required proof that he entered the apartment with the intent to commit a felony therein (§ 459), was consistent with the testimony presented at trial and does not support the conclusion that the case was a close one with respect to the assault charge. Cunningham's acquittal on the burglary charge does not suggest, as he maintains, that the jury did not entirely believe Rebecca's testimony. Rebecca's testimony did not support the inference that Cunningham entered the apartment with the intent to commit the assault. On the contrary, Rebecca testified that Cunningham entered the apartment with the gun at his side, and that he raised the gun only after Castro and Cunningham started to argue. Thus, the jury's acquittal of Cunningham on the burglary count does not demonstrate that the jury necessarily disbelieved any portion of Rebecca's testimony.

Second, for the reasons stated above, the case did not hinge on a credibility contest between Rebecca and Cunningham. The 911 tape, Castro's testimony, and Cunningham's admission that he armed himself prior to the confrontation are all consistent with Rebecca's testimony. Finally, with respect to Cunningham's argument that the jury could have drawn conflicting inferences from the testimony, Rebecca's testimony was corroborated and compelling.

In sum, given the strength of the evidence inculpating Cunningham and the marginal relevance of the excluded evidence, it is not reasonably probable that the jury would have reached a result more favorable to Cunningham if the trial court had admitted the proffered evidence.

3. The exclusion of the proffered evidence did not violate Cunningham's

constitutional rights

Cunningham claims the trial court's exclusion of the proffered evidence violated his federal constitutional rights to confront adverse witnesses and to present a defense.^[5]

a. The exclusion of the evidence did not violate Cunningham's right

to confront adverse witnesses

"The confrontation clauses of both the federal and state Constitutions guarantee a criminal defendant the right to confront the prosecution's witnesses. (U.S. Const., 6th Amend.; Cal. Const. art. I, § 15.) That right is not absolute, however." (People v. Cromer (2001) 24 Cal.4th 889, 892.)

In People v. Quartermain (1997) 16 Cal.4th 600, 623-624, the court explained the scope of the right of confrontation in the context of examining an adverse witness on issues related to the witness's credibility:

"Although the right of confrontation includes the right to cross-examine adverse witnesses on matters reflecting on their credibility, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination." [Citation.] In particular, notwithstanding the confrontation clause, a trial court may restrict cross-examination of an adverse witness on the grounds stated in Evidence Code section 352. [Citation.] A trial court's limitation on cross-examination pertaining to the credibility of a witness does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.]"

Quartermain also makes clear that a defendant's right of confrontation is not necessarily violated even where a trial court abuses its discretion in excluding impeachment evidence bearing on a witness's credibility. In Quartermain, the Supreme Court concluded that the trial court had abused its discretion under Evidence Code section 352 in excluding evidence that a prosecution witness had bribed judges in criminal proceedings unrelated to defendant's case. (Quartermain, supra, 16 Cal.4th at p. 624.)^[6] However, the Quartermain court concluded that the court's exclusion of the evidence would not have caused a reasonable jury to reach a significantly different impression of the witness's credibility because his credibility had been extensively impeached by his admissions that he had perjured himself numerous times in other proceedings, committed other acts of bribery, and was extensively involved in the trafficking of drugs. (Ibid.) The Quartermain court concluded that the defendant's confrontation rights had not been violated by the erroneous exclusion of the impeachment evidence. (Ibid.)

In this case, for the reasons stated in part II.A.2, ante, a reasonable jury would not have received a significantly different impression of Rebecca's credibility regarding the incident in question if the court had permitted defense counsel to cross-examine her regarding her prior recantation of domestic violence allegations against Christopher. (See Sapp, supra, 31 Cal.4th at p. 290 [concluding trial court did not violate defendant's right of confrontation by precluding cross-examination of People's witness on collateral credibility issue].) Thus, the trial court did not violate Cunningham's right to confrontation by excluding the proffered evidence.

b. The exclusion of the proffered evidence did not violate Cunningham's right

to present a defense

In People v. Reeder (1978) 82 Cal.App.3d 543, the court outlined the interplay between a trial court's authority to exclude evidence pursuant to Evidence Code section 352 and a defendant's constitutional right to present a defense.

"Evidence Code section 352 must bow to the due process right of a defendant to a fair trial and to his right to present all relevant evidence of significant probative value to his defense. In Chambers v. Mississippi (1973) 410 U.S. 284, it was held that the exclusion of evidence, vital to a defendant's defense, constituted a denial of a fair trial in violation of constitutional due-process requirements.

"We do not mean to imply, however, that a defendant has a constitutional right to present all relevant evidence in his favor, no matter how limited in probative value such evidence will be so as to preclude the trial court from using Evidence Code section 352." (People v. Reeder, supra, 82 Cal.App.3d at p. 553.)

(Accord People v. Babbitt (1988) 45 Cal.3d 660, 684 [adopting Reeder standard].)

In Boyette, supra, 29 Cal.4th at pages 427-428, the Supreme Court explained that errors in excluding defense evidence on a minor point does not constitute a deprivation of a defendant's constitutional right to present a defense:

"'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense." [Citations.] Although completely excluding evidence of an accused's defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, "[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense." [Citation.]' [Citations.]"

In this case, evidence of Rebecca's recantation of domestic violence allegations against Christopher was neither of significant probative value nor vital to Cunningham's defense, for the reasons discussed in part II.A.2, ante. The evidence was, at best, tangentially relevant to one witness's credibility. Cunningham was allowed to present a defense and did so, both through his own testimony and through extensive cross-examination of the People's witnesses, including Rebecca. The trial court did not "completely exclud[e] evidence of [his] defense." (Boyette, supra, 29 Cal.4th at p. 428.)

We conclude the trial court did not violate Cunningham's constitutional right to present a defense by excluding the proffered evidence.

B. The trial court properly instructed the jury pursuant to CALJIC No. 2.52

regarding flight from the scene of a crime

Cunningham claims the trial court erred in instructing the jury pursuant to CALJIC No. 2.52 regarding flight from the scene of a crime. Cunningham contends that there is no substantial evidence of flight consistent with consciousness of guilt to support the giving of the instruction. He also contends, in the alternative, that the court erred by failing to modify the standard CALJIC instruction in light of evidence that he left the scene of the incident for innocent reasons.

1. Procedural background

During a conference on jury instructions, the People requested that the court instruct the jury regarding the inference a jury may draw based on a defendant's flight after the commission of a crime. The court indicated that it intended to instruct the jury pursuant to CALJIC No. 2.52. Defense counsel objected, stating "I don't think what happened was sufficient with flight." The court overruled the objection, reasoning:

"I think it directly applies. I mean, the─certain events occurred, and he jumped in his car and took off, and those events have been alleged to be crimes. So 2.52. will be read over the objection of the defense.

"And in the instruction there are various alternatives in this, such as flight, attempted flight, escape, etc. And in this case, I'm simply going to read flight, 'The flight of a person immediately after the commission of a crime, or after accused [sic] of a crime, is not sufficient in itself.' Otherwise, that will be read in it's entirety verbatim."

The trial court instructed the jury pursuant to CALJIC No. 2.52. as follows:

"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."

2. There is substantial evidence from which the jury could reasonably

infer that Cunningham's flight reflected consciousness of guilt

Cunningham contends that the trial court erred in instructing the jury pursuant to CALJIC No. 2.52 regarding flight from the scene of the crime because there is no substantial evidence that his departure from the scene of the incident supported the consciousness of guilt inference permitted by the instruction. In reviewing this claim, we determine whether there is substantial evidence in the record to support the trial court's giving of the instruction. (People v. Crandell (1988) 46 Cal.3d 833, 869 (Crandell), overruled on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)

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.

"No further instruction on the subject of flight need be given."

"An instruction on flight is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight 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." (Crandell, supra, 46 Cal.3d at p. 869.)

Cunningham admitted at trial that he left the apartment because he "didn't want to get arrested." It was also undisputed that Cunningham left the scene of the incident─his own apartment building─immediately after the incident. A police officer testified that Cunningham ran a red light as he was driving away from the scene. Cunningham admitted that while he was being pursued by the police, he threw his shotgun out the window of his car. Thus, there was clearly evidence from which the jury could reasonably infer that Cunningham's flight reflected consciousness of guilt.

3. The trial court had no sua sponte duty to modify the standard CALJIC

flight instruction

Cunningham argues in the alternative that, assuming there was substantial evidence to support the giving of a flight instruction, the trial court erred by failing to modify the standard CALJIC flight instruction. Specifically, Cunningham argues that there is substantial evidence that he departed the scene of the incident because he was being threatened and that, therefore, the trial court should have instructed the jury that it was required to make a preliminary factual finding regarding whether Cunningham departed the scene to avoid arrest before it could consider whether his flight evinced a consciousness of guilt.

Defense counsel did not request that the trial court modify CALJIC No. 2.52. It is well established that a "trial court has no sua sponte duty to modify CALJIC No. 2.52." (People v. Henderson (2003) 110 Cal.App.4th 737, 742.) For example, in People v. Gutierrez (1993) 14 Cal.App.4th 1425 (Gutierrez), defendant argued that the trial court had a sua sponte duty to modify the last sentence of the CALJIC No. 2.52 to read, "'Whether or not evidence of flight shows a consciousness of guilt, and the significance to be attached to such circumstance, are matters for your determination.' [Citation.]" (Gutierrez, supra, 14 Cal.App.4th at p. 1439.) The Gutierrez court rejected this argument, stating,

"CALJIC No. 2.52 incorporates the instructional language of section 1127c which states 'No further instruction on the subject of flight need be given.' [Citation.] If appellant sought a modification of a correct instruction it was his duty to request the modification. [Citation.]" (Ibid.)

(Accord People v. London (1988) 206 Cal.App.3d 896, 904 [noting that trial court might "at defendant's request" modify a flight instruction to instruct the jury that it could consider evidence of flight only after first determining beyond a reasonable doubt the defendant was the person who fled].)

Cunningham also maintains that modification of the flight instruction was required pursuant to Evidence Code section 403, which addresses to the admission of evidence contingent on the production of evidence of a preliminary fact. Assuming, without deciding, that this statute is relevant to this issue, Evidence Code section 403 subsection (c)(1) states that, where a jury could reasonably find that the preliminary fact exists, a trial court is required to give an instruction pertaining to the jury's consideration of such evidence only if such an instruction is requested. (Evid. Code, § 403, subd. (c)(1) [stating that the trial court "[m]ay, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist"].)

In this case, as noted above, Cunningham admitted at trial that he left the scene of the incident in order to avoid arrest. Thus, there was clearly substantial evidence from which the jury could find this preliminary fact. Evidence Code section 403 does not support Cunningham's argument that the trial court was required to modify the standard CALJIC flight instruction, particularly in the absence of any request to do so.

C. The trial court was not required to instruct the jury pursuant to CALJIC

No. 12.50 regarding a felon's right to use a firearm in self-defense

Cunningham claims the trial court erred in denying his request to instruct the jury on count 3 pursuant to CALJIC No. 12.50 regarding a felon's right to use a firearm in self-defense. "'A trial court has no duty to instruct the jury on a defense─even at the defendant's request─unless the defense is supported by substantial evidence.' [Citation.]" (People v. Hill (2005) 131 Cal.App.4th 1089, 1101.) A trial court's refusal to instruct on a defense "will be upheld on appeal where the record contains no substantial evidence to support the instructions." (Ibid.)

In count 3 of the information, the People charged Cunningham with possessing a firearm as a felon (§ 12021, subd. (a)(1)). During the jury instruction conference, defense counsel requested that the trial court instruct the jury pursuant to CALJIC No. 12.50.

CALJIC No. 12.50 provides:

"A person previously convicted of a felony does not violate § 12021 of the Penal Code by being in possession of a firearm if:

"1. [He] [She] as a reasonable person had grounds for believing and did believe that [he] [she] was [or] [others were] in imminent peril of great bodily harm; and

"2. Without preconceived design on [his] [her] part, a firearm was made available to [him] [her];

"3. [His] [Her] possession of such firearm was temporary and for a period of time no longer than that in which the necessity or apparent necessity to use it in self-defense continued; and

"4. The use of the firearm was reasonable under the circumstances and was resorted to only if no alternative means of avoiding the danger were available."

The trial court rejected the request, stating:

"12.50 entitled 'Use of a Firearm by a Convicted Felon Self-Defense' is in the court's view designed and restricted to those situations in which a person finds himself in a situation without any pre-planning, and a firearm is either close at hand or immediately given to him for purposes of self-defense, and he therefore possess [sic] it under those spontaneous circumstances.

"In the instant case, the evidence was that the defendant had possessed the firearms for, I think he said, two to three months that they've been in his house, and that's simply─and that he had to unlock a box to get them, this does not appear to the court to be a situation with 12.50 would be applicable because it was not a spontaneous quick moving situation where he tossed a gun to defend himself by somebody, which I think is what is required here.

"So, [defense counsel], I will decline to read 12.50 as requested by the defense . . . ."

Cunningham acknowledges that CALJIC NO. 12.50 is premised on "a narrow exception," to section 12021's prohibition of possession of a firearm by a felon, established in People v. King (1978) 22 Cal.3d 12 (King). The defendant in King was a guest at a party in an apartment. (Ibid.) A fight broke out at the party. (Id. at p. 16.) A group of people who had not been invited to the party and who were friends of one of the men involved in the fight, pounded on the front door of the apartment and threatened to break it down. (Id. at pp. 17-18.) One of the members of this uninvited group threw a barbeque grill into the apartment through a window. (Id. at p. 18.) The grill and the glass from the window hit the defendant. A woman who was frightened by the intruders gave defendant a pistol from her purse. Defendant fired the gun in an attempt to frighten the intruders. (Ibid.) Among other crimes, defendant was charged with possession of a firearm as a felon. (Id. at p. 19.) Defendant requested that the trial court instruct the jury that if the jury found he had used the firearm in self-defense, it could find him guilty on the possession charge only if it found that he had possessed the weapon prior to such use. (Id. at pp. 19-20.) Defendant also requested that the court instruct the jury that if the weapon was used in a manner that reasonably appeared necessary to prevent imminent injury, he was not guilty of possessing a firearm as a felon. (Id. at p. 20.) The trial court denied the requests (id. at p. 19), and the jury found defendant guilty of possessing a firearm as a felon. (Id. at p. 15.)

On appeal, defendant renewed his claim that he was entitled to the requested self-defense instructions on the charge of possessing a firearm as a felon. (King, supra, 22 Cal.3d at p. 15.) The King court agreed, stating, "Inasmuch as defendant's brief use of a concealable firearm, without predesign or prior possession of the weapon, in the exercise of the right to self-defense, defense of others, or defense of habitation would not constitute the possession, custody, or control of the firearm which the Legislature has prohibited in section 12021, it was error for the court to fail to instruct the jury regarding the relevance of these defenses to the 12021 charge." (Id. at pp. 26-27.)

In People v. McClindon (1980) 114 Cal.App.3d 336, 339-340 (McClindon), the court of appeal rejected the defendant's claim that he was entitled to a self-defense instruction pertaining to his possession of a firearm. The defendant, who was a felon, kept a firearm near his bed for protection. One night, he and his wife were awakened by a noise near their bedroom window. (Id. at p. 339.) Defendant's wife became hysterical, and defendant yelled, "What in the devil is going on out there?" (Ibid.) Defendant then fired three gunshots out the window. (Ibid.) Upon his conviction for possessing a firearm as a felon, defendant claimed that the trial court erred by failing to give an instruction on self-defense pursuant to King. (McClindon, supra, 114 Cal.App.3d at p. 339.) In rejecting this claim, the McClindon court reasoned:

"King clearly is not applicable here. Appellant's possession of the pistol was admittedly not brief and further it was not without design or prior possession. Appellant admitted that he had possession of the firearm for approximately five months and that he kept it by his bed for protection because he did not want to shoot anybody with his rifle." (Id. at p. 340.)

In this case, Cunningham admitted at trial that he had possessed three firearms for a couple of months prior to the incident leading to the charged offenses. He further testified that he kept the firearms locked away in a closet. When asked whether the guns were easy to get to in case he needed them for "protection," Cunningham conceded that they were not. When the People asked Cunningham if he needed three guns for protection, he admitted, "I really don't need them, no." With respect to the charged offenses, it was undisputed that Cunningham armed himself with a firearm prior to being physically threatened by Christopher, and that Cunningham left the scene of the incident armed with a firearm.

As in McClindon, supra, 114 Cal.App.3rd at page 340, the evidence in this case clearly establishes that Cunningham's possession of the firearms was neither temporary nor without predesign. We reject Cunningham's argument that because he had been subjected to threats and assaults prior to the incident in question, he was entitled to maintain a cache of firearms for his own protection. King establishes a narrow exception to section 12021's prohibition for the immediate use of a firearm by a felon due to an imminent threat without prior possession. (King, supra, 22 Cal.3d at pp. 26-27.) Cunningham's possession of the firearms in this case falls far outside this exception.

The trial court did not err in refusing Cunningham's request to instruct the jury, as to count 3, pursuant to CALJIC No. 12.50 regarding a felon's right to use a firearm in self-defense.

IV.

DISPOSITION

The judgment is affirmed.

AARON, J.

WE CONCUR:

NARES, Acting P. J.

O'ROURKE, J.

Publication courtesy of El Cajon Criminal Law Attorney (http://www.mcmillanlaw.us/) And El Cajon Lawyers Directory (http://www.fearnotlaw.com/ )

^[1] Unless otherwise specified, all subsequent statutory references are to the Penal Code.

^[2] Christopher Knox did not testify.

^[3] Cunningham also argues that the evidence was relevant to prove Christopher's reputation for violence. Since Cunningham did not seek admission of the evidence for that purpose in the trial court, he has forfeited any claim that it was improperly excluded for that purpose. (See People v. Panah (2005) 35 Cal.4th 395, 481; Evid. Code, § 354.)

^[4] We conclude in part III.A.3, post, that the trial court's exclusion of the proffered evidence did not violate Cunningham's constitutional rights.

^[5] The People do not argue that Cunningham's failure to raise his constitutional claims at trial constitutes a forfeiture of those claims on appeal. Therefore, we do not consider the issue. However, we note that in People v. Partida (2005) 37 Cal.4th 428, 435, the California Supreme Court held that a defendant who failed to assert the constitutional basis for his Evidence Code section 352 evidentiary objection at trial could, nevertheless, argue on appeal that the trial court's evidentiary error had the additional legal consequence of violating his constitutional right to due process.

^[6] The Quartermain court did not consider whether this state law evidentiary error was harmless under the Watson standard of prejudice because it reversed the judgment on another ground. (Quartermain, supra, 16 Cal.4th at p. 623.)