Filed 10/19/17 P. v. Burgoa CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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, Mary Kreber Varipapa, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C. Taylor and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Antonio Burgoa of making a criminal threat (Pen. Code, § 422; all statutory references are to this code), interfering with a police officer in the performance of his duties (§ 69), and battery (§ 242). Burgoa contends the trial court prejudicially erred by instructing the jury on flight (CALCRIM No. 372). For the reasons expressed below, we affirm.

I

Factual and Procedural Background

Jesus H. worked at a Santa Ana liquor store. On the morning of December 7, 2015, Burgoa walked into the store with another person, and then left. About 30 minutes later, he returned, selected a beer, and asked Jesus for a dollar so he could pay for it. Jesus refused to give him the dollar, and after threatening to steal the beer, Burgoa left the store.

Around 10:00 a.m., Burgoa returned. He accused Jesus of calling him “gay,” and said, “you’re going to regret it . . . .” He also stated, “listen, you know what, you asshole, I’m going to call my gang so you know what’s up.”

Jesus dialed 911 while Burgoa was still in the store. Burgoa said, “You faggot, faggot, you know what’s going to happen if you call the police. Call them, you faggot.” Burgoa left the store.

Around noon, Burgoa returned once again. Jesus had finished his shift, but heard Burgoa yelling at another employee. Jesus walked to the front of the store and asked “what’s going on.” Burgoa said something like, “You faggot, I’m going to do something to you.” Jesus attempted to move Burgoa outside the store, but Burgoa hit him in the stomach, causing Jesus to fall backwards. Burgoa said “did it hurt, did it hurt, you faggot, because I gave it to you real good.” Jesus called 911 again.

Officer Vega responded to the 911 call. He detained Burgoa after spotting him riding his bike about a block and a half from the liquor store. Burgoa immediately claimed he had acted “in self-defense.” Jesus approached and described what had occurred. Burgoa argued with Vega and another officer, and resisted arrest by dropping to his knees. He also kicked Vega after the officers placed him into the patrol vehicle.

II

Discussion

The Trial Court Did Not Prejudicially Err By Instructing the Jury on Flight

The trial court gave a flight instruction over Burgoa’s objection. CALCRIM No. 372 provided, “If the defendant fled immediately after the crime was committed, 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 cannot prove guilt by itself.”

Burgoa complains the evidence did not support the instruction, arguing the sole issue at trial was whether he made a threat and whether he intended his words to be taken as a threat.[1] He says there was no evidence from which the jury could infer he fled the liquor store because he feared being arrested or identified as having committed a crime.[2] We disagree.

“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.” (§ 1127c.) A trial court correctly instructs on flight “‘“where the evidence shows the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’” (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Cannady (1972) 8 Cal.3d 379, 391 [flight requires neither the physical act of running nor the reaching of a far-away haven]; see People v. Mendoza (2000) 24 Cal.4th 130, 180 (Mendoza) [“It is for the jury to determine to which offenses, if any, the inference should apply”].)

The evidence supported the instruction. The jury could infer Burgoa left the liquor store after Jesus dialed 911 because he believed his conduct in the store that day, including his threat to bring his gang back, constituted criminal activity and he did not want to be at the store when the police arrived. In any event, we discern no prejudice. (See People v. Watson (1956) 46 Cal.2d 818, 836.) The instruction merely informs the jury it may consider flight in connection with other proven facts, and permits the jury to give flight the weight it deems appropriate. (Mendoza, supra, 24 Cal.4th at p. 180.) “[T]he instruction did not posit the existence of flight; both the existence and significance of flight were left to the jury.” (People v. Crandell (1988) 46 Cal.3d 833, 869-870.) Contrary to Burgoa’s claim the instruction did not absolve the jury of determining whether Burgoa in fact made a threat, and whether he intended to do so.

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.