People v. Walkkein CA2/3

Filed 8/25/21 P. v. Walkkein CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B302429
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA479613)
v.
JOSEPH LIONEL WALKKEIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stanley Blumenfeld, Judge. Affirmed.
Patrick J. Hoynoski, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, Lance E.
Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Assistant Attorney General, Colleen Tiedeman and
Chung L. Mar, Deputy Attorneys General, for Plaintiff and
Respondent.
——————————
Joseph Lionel Walkkein appeals from his judgment of
conviction of assault with a deadly weapon (Pen. Code,1 § 245,
subd. (a)) with a great bodily injury enhancement (§ 12022.7,
subd. (a)). He raises the following arguments on appeal: (1) the
trial court abused its discretion in denying his motion for
mistrial; (2) the prosecutor committed prejudicial misconduct
during closing argument; (3) the evidence was insufficient to
support the flight instruction given to the jury; and (4) the
cumulative effect of these alleged errors requires reversal. We
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s case-in-chief
On the night of December 22, 2018, Jonah Ndiritu was
stabbed near a Roscoe’s Chicken and Waffles restaurant in
Los Angeles. Ndiritu sold T-shirts and sunglasses outside the
restaurant. Walkkein often played loud music from a boom box
in front of Roscoe’s and the Denny’s restaurant across the street.
Ndiritu had known Walkkein since 2017, and called him by his
nickname, “Compton Joe.” The day before the stabbing,
Walkkein approached Ndiritu inside Denny’s and asked him to
leave because Ndiritu had fallen asleep there.
On the night of the stabbing, Ndiritu and Walkkein were
both outside Roscoe’s. Walkkein told Ndiritu that he was not
allowed to sleep at Denny’s because the restaurant was his spot.
As the men argued, Walkkein pulled out a knife and threatened
to hurt Ndiritu with it. In response, Ndiritu smashed Walkkein’s
1Unless otherwise stated, all statutory references are to
the Penal Code.
2
boom box and began walking across the street. Walkkein
followed him with the knife. When Ndiritu realized Walkkein
was behind him, he turned and raised his arm to defend himself.
Walkkein stabbed Ndiritu in his right arm and chest. As Ndiritu
was lying on the ground, he repeatedly pleaded with Walkkein
not to kill him. Walkkein then stopped the attack and walked
away.
When officers responded to the scene, Ndiritu provided
a physical description of his assailant and identified him as
Compton Joe. One of the responding officers, who was familiar
with Walkkein, saw him standing outside the rear of the Denny’s
restaurant. During a search of Walkkein, the officer did not find
any weapons, or observe any blood on his hands or clothing.
Ndiritu later identified Walkkein as the person who stabbed him
in a photographic lineup and at trial.
The defense evidence
Walkkein testified in his own behalf. He stated that on the
night of December 22, 2018, he was setting up his music
equipment in front of Roscoe’s. Ndiritu approached and asked
him in a jealous tone if Walkkein enjoyed playing his music.
Ndiritu also angrily accused Walkkein of talking about his
business behind his back. After Walkkein denied the accusation,
Ndiritu stood directly behind him and refused to leave. Walkkein
was speaking to a security guard when Ndiritu picked up one of
Walkkein’s speakers and slammed it down in the middle of the
street. Walkkein walked into the street and yelled at Ndiritu
that he had another speaker at Denny’s. Walkkein was “a little
angry” at Ndiritu, but stayed 10 to 15 feet away from him.
Walkkein never touched Ndiritu or threatened him with a knife.
As Walkkein was walking away, two other men approached
3
Ndiritu and yelled at him for destroying Walkkein’s property.
The men also told Ndiritu that they wanted their money.
Walkkein did not know Ndiritu had been stabbed until the police
arrived and arrested him near Denny’s. Walkkein denied telling
the police that he had hit and pushed Ndiritu with his hands,
that Ndiritu had swung at him and fell, or that he saw Ndiritu
bleeding.
The People’s rebuttal evidence
Walkkein was arrested about four minutes after officers
received the initial dispatch call regarding the incident. An audio
recording of the arresting officer’s body camera footage was
played for the jury. In the recording, Walkkein spontaneously
asked, “Is he gonna be alright?” Walkkein then stated, “I was
hitting him with my hand—we pushed each other, and I hit him
a couple times, he swung at me and he fell. And I know he was
bleeding. I don’t have no knife. I pushed him with my hands.”
Walkkein also claimed the victim became angry because
Walkkein had accused him of stealing money from a man named
Coco. Walkkein added, “He just went berserk, picked my speaker
up—60 or 70 dollars, man—he just—ask anybody—he just busted
my shit all up.” Prior to Walkkein’s statements, the arresting
officer did not mention a knife or the fact that the victim was
bleeding.
Jury verdict and sentencing
The jury found Walkkein guilty of assault with a deadly
weapon (§ 245, subd. (a)), and found true the enhancement
allegation that he inflicted great bodily injury on the victim
(§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court
found Walkkein had suffered four prior serious or violent felony
4
convictions under the “Three Strikes” law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and four prior serious felony convictions
under section 667, subdivision (a)(1). The court sentenced
Walkkein to an aggregate term of 21 years in state prison.
Walkkein filed a timely appeal.
DISCUSSION
Denial of motion for mistrial
On appeal, Walkkein argues the trial court abused its
discretion in denying his motion for mistrial. He asserts a
mistrial should have been granted because the prosecutor
improperly appealed to the jury’s passions during closing
argument by referencing the crime of murder and implying
that Walkkein committed the stabbing to satisfy his rage.
During her closing argument, the prosecutor stated,
“Mr. Ndiritu begged for his life. Defendant is a Compton Joe.
There’s only one Compton Joe at this location; that’s the
defendant. And I want you to think about the following questions
or following question: Why did the defendant stop stabbing the
victim? You’re not actually speculating, you’re actually making a
conclusion based on facts and evidence.” Defense counsel
immediately objected to the prosecutor’s statement, and the trial
court sustained the objection.
The prosecutor then continued, “So victim was pleading
for his life. ‘Compton, don’t kill me.’ Perhaps defendant stopped
because after stabbing the victim that satisfied his rage because
he saw the fear in the victim’s eye, his voice, and his body
language. Perhaps defendant realized he was about to commit
5
murder.” After defense counsel again objected, the trial court
sustained the objection and asked the prosecutor to proceed
to the next slide in her PowerPoint presentation. When the
prosecutor indicated there were no further slides, the court asked
her to turn off the presentation. The prosecutor complied, and
concluded her argument by stating that Walkkein “chose the
route of violence” and stabbed the victim because he “was
outraged.”
Following the completion of closing arguments, defense
counsel moved for a mistrial based on the prosecutor’s remarks
to the jury about Walkkein’s possible reasons for stopping the
attack. Defense counsel argued the prosecutor’s reference to
murder was likely to inflame the passions of the jury, and lacked
any relevance to the elements of the charged crime. The court
agreed to hear further argument on the motion, and asked
defense counsel to submit a proposed curative instruction if he
believed one was necessary.
At the hearing on the motion, the trial court indicated that
it had interpreted the prosecutor’s argument to mean Walkkein
“was in a fit of rage and didn’t realize fully what he was doing
until he saw the victim, the pleading, realized it, and then
stopped before his rage would have taken him ultimately to
murder.” The court stated, “I see no relevance in that argument
at all, but I also struggle to see what the prejudice was that the
court didn’t stop.” Defense counsel argued that, because the
prosecutor’s reference to murder had no relevance to the
charged offense or enhancement allegation, it must have been
intended to inflame the jury’s passions.
The court explained that the jurors were likely to think
about the possibility of a fatal injury in light of the evidence that
6
the victim was stabbed in the chest. The court also observed that
the prosecutor’s argument could be perceived as a statement
that Walkkein “didn’t realize what he was doing,” he was “not
someone who ha[d] murder in his heart,” and he was “in a fit of
rage and he recognized what he was doing and immediately
stopped.” While defense counsel acknowledged the argument
could be viewed in this manner, he asserted that the prosecutor’s
tone in making such argument was inflammatory and caused
the jury to focus on the possibility that Walkkein could have
committed murder. The court disagreed, noting the prosecutor’s
tone was fairly steady throughout her closing argument, and
there was nothing about her tone that undercut the court’s
interpretation of the challenged remarks. In response to the
court’s inquiry about a possible curative instruction, defense
counsel argued that the resulting prejudice could not be cured by
an instruction, and that the proper remedy was to declare a
mistrial.
In discussing the relevance of her challenged statements,
the prosecutor explained that she was trying to show Walkkein
“was in control of the entire situation” and “stopped himself
because he did not want to kill the victim.” She also stated that
her PowerPoint slide asked why Walkkein had stopped stabbing
the victim with three options presented: (1) the “victim was
pleading for his life, Compton don’t kill me”; (2) Walkkein
“satisfied his rage because he saw fear in the victim’s eyes”; and
(3) Walkkein “realized he was about to commit murder and he
stopped himself.” The court questioned the relevance of this
argument, noting that the defense essentially had conceded that
an assault with a deadly weapon causing great bodily injury had
been committed, and that the key issue before the jury was the
7
identity of the perpetrator. While acknowledging that this was a
general intent case, the prosecutor maintained that her
comments were aimed at showing Walkkein “knew what he was
doing . . . , but he also had no intent to kill the victim.” The
prosecutor added she was “simply painting” a picture of “the
entire evidence and presenting it as [she saw] it to the jury.”
The trial court denied the mistrial motion. The court found
that, while the prosecutor’s argument had no relevance in the
context of this case, it was not intended to inflame the passions of
the jury. The court further found there was no incurable
prejudice because the possibility that the stabbing could have
resulted in a murder was “a notion that undoubtedly anyone who
looks at the evidence would have in their mind,” but it would not
prevent the jury from properly focusing on the issue of whether
Walkkein was the perpetrator. The court also reasoned that,
given the brevity of the challenged remarks and its prompt
sustaining of defense counsel’s objections, it had no doubt that
the jury would not convict Walkkein unless the People had
proved he was the perpetrator beyond a reasonable doubt.
A trial court should grant a motion for mistrial “ ‘only when
a party’s chances of receiving a fair trial have been irreparably
damaged.’ ” (People v. Schultz (2020) 10 Cal.5th 623, 673.) “ ‘ “A
mistrial should be granted if the court is apprised of prejudice
that it judges incurable by admonition or instruction. [Citation.]
Whether a particular incident is incurably prejudicial is by its
nature a speculative matter, and the trial court is vested with
considerable discretion in ruling on mistrial motions.” ’ ” (People
v. Suarez (2020) 10 Cal.5th 116, 148.) We review the denial of a
8
mistrial motion for abuse of discretion. (Schultz, at p. 673; People
v. Penunuri (2018) 5 Cal.5th 126, 149.)
Walkkein contends the trial court should have granted his
motion for mistrial because the prosecutor’s remarks about his
possible reasons for stopping the attack irreparably damaged
his chances of receiving a fair trial. In particular, Walkkein
claims the prosecutor’s argument prejudiced the jury against him
because it shifted the jury’s focus away from the sole disputed
issue of identity, and inflamed the jury’s passions by implying
that Walkkein committed the stabbing in a murderous rage.
We conclude the trial court acted well within its discretion in
denying the mistrial motion.
When the prosecutor’s closing argument is considered as a
whole and in context, the challenged remarks were not “ ‘so
incurably prejudicial that a new trial was required.’ ” (People
v. Beck and Cruz (2019) 8 Cal.5th 548, 634.) The prosecutor’s
statements about Walkkein’s possible reasons for stopping the
attack were relatively brief and isolated in nature. The trial
court immediately sustained the objections to those statements,
and foreclosed any further argument about why Walkkein may
have ceased stabbing the victim. When Walkkein later moved for
a mistrial, the trial court also offered him the opportunity to
submit a proposed curative instruction, which his counsel
declined to do.
Walkkein argues the prejudice caused by the prosecutor’s
comments could not be cured by an admonition or instruction.
As the trial court correctly observed, however, the crux of the
challenged remarks—that Walkkein may have stopped the attack
9
because he did not intend to kill the victim—was not inherently
prejudicial to the defense. Nor was the prosecutor’s brief
reference to the crime of murder likely to inflame the jury’s
passions in light of the evidence that the victim was stabbed in
the chest and repeatedly pleaded with his assailant not to kill
him. Furthermore, the principal disputed issue at trial was
Walkkein’s identity as the perpetrator, not his mental state or
his motive for starting or stopping the attack. Although the
prosecutor’s remarks were not probative on the key issue of
identity, they were unlikely to detract the jury’s attention from
its role in deciding whether the People had proved beyond a
reasonable doubt that Walkkein was the perpetrator. Under
these circumstances, the trial court did not abuse its discretion
in denying the mistrial motion.
Prosecutorial misconduct claim
Walkkein next contends that the prosecutor’s statements
during closing argument constituted prejudicial misconduct in
violation of his constitutional right to due process. In addition
to challenging the prosecutor’s remarks about his reasons for
stopping the attack, Walkkein claims the prosecutor misstated
the evidence when she argued that Walkkein had given multiple
versions of events and was outraged at the time of the incident.
During her closing argument, the prosecutor argued to the
jury that Walkkein had given three different versions of events
about his encounter with the victim: (1) the statements he made
to the police at the time of his arrest; (2) his testimony on direct
examination; and (3) his testimony on cross-examination.
10
As to the first version, the prosecutor explained that
Walkkein had told the arresting officer that he and the victim
pushed each other, he hit the victim with his hand, the victim
swung at him and fell, he knew the victim was bleeding, and he
did not have a knife. The prosecutor also stated that Walkkein
had claimed the victim got mad when Walkkein accused him of
stealing from a man named Coco.
As to the second version, the prosecutor argued that
Walkkein had testified on direct examination that the victim
“was jealous” and accused Walkkein of “taking his business,”
but Walkkein “didn’t argue with the victim because [he] is a
calm, cool, collected guy with an even temper.” As described
by the prosecutor, Walkkein tried to emphasize in his direct
testimony that he was “not really engaging with the victim” and
was “not really angry,” even though he admitted at one point that
the “argument was escalating.” The prosecutor also noted that
Walkkein had testified he never touched the victim, and instead
saw a Black man attacking the victim as he was walking away.
As to the third version, the prosecutor told the jury that
Walkkein had admitted on cross-examination that the victim
“was annoying” him, and that Walkkein “was a little angry.” The
prosecutor also pointed out that Walkkein had testified on cross-
examination that he did not argue with the victim, which
contradicted his statement on direct examination that their
argument had escalated. The prosecutor continued, “And then
now he says it was two guys attacking the victim demanding
money and accusing the victim of owing them money. What is
this a robbery now or some sort of money dispute that he creates
during the cross-examination. Two guys attacking the victim.
11
And then he’s denied everything about what he said on December
22nd.”
The prosecutor then argued that Walkkein’s various
versions of events were not truthful, “So all three versions are
lies. All of them are lies. But version number one shows that
defendant was angry. Victim broke his speaker. And all the
statements that he made at the time of arrest defendant is really
admitting to the following: arguing with the victim, having the
knife, causing victim to fall, stabbing the victim while standing
over him. [¶] So when the defendant says there was a Black guy
standing over him[,] attacking him[,] on top of him, he’s really
talking about himself. But he wants you to think that it was
actually somebody else, not him.” The prosecutor concluded
her initial argument, stating, “He stabbed the victim because he
was angry. He was outraged, and he stabbed him. That’s why
we’re here. I ask that you hold the defendant accountable by
finding the defendant guilty of count 1 and finding the allegation
of great bodily injury true.”
In her rebuttal argument, the prosecutor reiterated that
Walkkein had not been truthful in his testimony, asserting, “He
exercised all of his rights for this trial. But what he does not
have, he does not have the right to take the stand and lie, lie to
you all, lie to the judge, especially to you. He does not have the
right to lie, get up there and say whatever he wants to avoid
accountability, responsibility. Make things up as he goes on.
That’s why we have the version of direct examination and a
different version from cross-examination, because he is making
things up as he goes to get out of the responsibility for his
conduct[,] for his action that he did.”
12
“ ‘ “ ‘A prosecutor’s misconduct violates the Fourteenth
Amendment to the United States Constitution when it “infects
the trial with such unfairness as to make the conviction a denial
of due process.” [Citations.] In other words, the misconduct
must be “of sufficient significance to result in the denial of the
defendant’s right to a fair trial.” [Citation.] A prosecutor’s
misconduct that does not render a trial fundamentally unfair
nevertheless violates California law if it involves “the use of
deceptive or reprehensible methods to attempt to persuade
either the court or the jury.” ’ ” ’ ” (People v. Hoyt (2020)
8 Cal.5th 892, 943.)
“ ‘When attacking the prosecutor’s remarks to the jury,
the defendant must show’ that in the context of the whole
argument and the instructions[,] there was ‘ “a reasonable
likelihood the jury understood or applied the complained-of
comments in an improper or erroneous manner.” ’ ” (People v.
Silveria and Travis (2002) 10 Cal.5th 195, 306.) Additionally,
a “ ‘defendant’s conviction will not be reversed for prosecutorial
misconduct . . . unless it is reasonably probable that a result more
favorable to the defendant would have been reached without
the misconduct.’ ” (People v. Flores (2020) 9 Cal.5th 371, 403.)
“ ‘ “To preserve a claim of prosecutorial misconduct for appeal,
a defendant must make a timely and specific objection and ask
the trial court to admonish the jury to disregard the improper
argument.” ’ [Citation.] A court will excuse a defendant’s failure
to object only if an objection would have been futile or if an
admonition would not have cured the harm caused by the
misconduct.” (People v. Jackson (2016) 1 Cal.5th 269, 349.)
13
Walkkein argues the prosecutor committed misconduct in
her closing argument when she (1) speculated about Walkkein’s
possible reasons for stopping the attack, as described in section I
above, and (2) misstated the evidence by claiming that Walkkein
gave three different versions of events and was outraged at the
time of the attack. As the People correctly assert, Walkkein
forfeited his claim that the prosecutor misstated the evidence
because he never objected to this portion of the argument or
requested an admonition in the trial court. Yet even assuming
both claims of prosecutorial misconduct were preserved,
we conclude neither has merit.
With respect to the prosecutor’s argument about
Walkkein’s reasons for stopping the attack, there was no
prejudicial misconduct. As discussed above, the possibility that
the stabbing could have resulted in a fatal injury to the victim
was a reasonable inference that the jury could draw from the
evidence. In addition, the prosecutor’s remarks were not
inherently harmful because they implied that Walkkein had no
intent to kill the victim during the attack. Because the trial
court immediately sustained defense counsel’s objections, the
comments were also brief and isolated in nature. Under these
circumstances, there is no reasonable likelihood that the jury
construed the remarks in an objectionable manner.
With respect to the prosecutor’s argument that Walkkein
lied on the witness stand by giving conflicting versions of events,
such remarks were a fair comment on the evidence. It is well-
established that prosecutors “ ‘are allowed “a wide range of
descriptive comment” and their “ ‘ “argument may be vigorous
14
as long as it amounts to fair comment on the evidence, which
can include reasonable inferences, or deductions to be drawn
therefrom.” ’ ” ’ ” (People v. Jackson, supra, 1 Cal.5th at p. 349.)
Moreover, “ ‘ “harsh and colorful attacks on the credibility of
opposing witnesses are permissible.” ’ ” (People v. Krebs (2019)
8 Cal.5th 265, 343.) A prosecutor is thus “ ‘allowed to argue,
from the evidence, that a witness’s testimony is unbelievable,
unsound, or even a patent “lie.” ’ ” (People v. Rivera (2019)
7 Cal.5th 306, 335; see People v. Huggins (2006) 38 Cal.4th 175,
206 [no misconduct where prosecutor told jury defendant “ ‘lied
through his teeth in trying to sell this story to you’ ”]; People v.
Hinton (2006) 37 Cal.4th 839, 871 [no misconduct where
prosecutor “called defendant a liar based on his admitted lies to
the police,” and argued defendant “had lied on the stand”].)
Here, the evidence showed that Walkkein spontaneously
told the police that, after the victim smashed his speaker, they
had a physical altercation during which Walkkein hit and pushed
the victim with his hands and saw that the victim was bleeding.
This statement directly contradicted Walkkein’s trial testimony
that he never touched the victim or was aware that the victim
had been injured until the police arrested him. The prosecutor
accordingly was entitled to argue that, based on such evidence,
Walkkein had lied on the witness stand when he denied he was
the perpetrator or had any knowledge about how the stabbing
occurred. The prosecutor was also permitted to argue that,
despite his attempts to minimize the anger he felt at the time
of the incident, Walkkein was outraged when he committed the
stabbing because the victim had destroyed his speaker.
Walkkein argues the prosecution overstated the
inconsistencies between his direct and cross-examinations.
15
During both, Walkkein testified that he was only “a little angry”
when the victim smashed his speaker, though he acknowledged
on cross he was “pretty upset.” Walkkein also testified on both
direct and cross-examination that there were two men, not one,
who confronted the victim about money that he owed as
Walkkein was walking away. While Walkkein singles out these
consistencies in his testimony to show that the prosecutor
misstated the evidence in her closing argument, “we must view
the [prosecutor’s] statements in the context of the arguments as
a whole.” (People v. Valencia (2008) 43 Cal.4th 268, 304.) The
thrust of the prosecutor’s argument was that Walkkein was not
truthful because his testimony at trial contradicted the
statements that he made to the police shortly after the attack.
This was a fair comment on Walkkein’s credibility as a witness
and was therefore permissible.
Finally, even assuming any error, the challenged remarks
by the prosecutor did not constitute a pattern of conduct so
egregious that it rendered the trial fundamentally unfair, nor
was it reasonably probable that Walkkein would have obtained
a more favorable result had the remarks not been made. The
victim, who was familiar with Walkkein prior to the incident,
testified that he was “100 percent sure that Mr. Walkkein is
the one who stabbed” him. Walkkein’s inculpatory statements to
the police, which were played for the jury, also provided
compelling evidence of his guilt, and undermined his trial
testimony that he never engaged in a physical altercation with
the victim. Furthermore, the trial court instructed the jury that
the statements of the attorneys were not evidence, and we
presume the jury followed this instruction. (People v. Beck
16
and Cruz, supra, 8 Cal.5th at p. 634.) On this record, no
prejudicial misconduct occurred.
Jury instruction on flight
The trial court instructed the jury with 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 cannot prove guilt by itself.” On appeal, Walkkein
asserts the trial court erred in giving this instruction because
there was insufficient evidence that he left the crime scene under
circumstances suggesting he was motivated by a consciousness of
guilt. We conclude the instruction was proper.
“The trial court must instruct the jury ‘on general
principles of law that are closely and openly connected to the
facts and that are necessary for the jury’s understanding of the
case.’ ” (People v. Anderson (2018) 5 Cal.5th 372, 413.) “ ‘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.” [Citations.] “ ‘[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.’ ” [Citation.] “Mere return to familiar
environs from the scene of an alleged crime does not warrant
an inference of consciousness of guilt [citations], but the
17
circumstances of departure from the crime scene may sometimes
do so.” ’ ” (People v. Cage (2015) 62 Cal.4th 256, 285.)
In this case, the evidence was sufficient to support the
flight instruction given to the jury. The evidence showed that,
prior to the stabbing, Walkkein had set up his music equipment
in front of the Roscoe’s Chicken and Waffles restaurant. This
was one of the spots that he would frequent when he wanted to
play music. At some point that night, Walkkein engaged in an
argument with the victim, which according to the victim, ended
with Walkkein stabbing him and then walking away. While
Walkkein denied that he stabbed the victim, he admitted to the
police that they were involved in a physical altercation, and that
he saw the victim bleeding. The evidence further showed that,
following his altercation with the victim, Walkkein did not
remain at the scene. Instead, a few minutes after the police
received a radio call regarding the incident, the arresting officer
spotted Walkkein standing behind the Denny’s restaurant that
was located on the opposite corner from Roscoe’s. From this
evidence, the jury reasonably could have inferred that Walkkein
left the scene immediately after the crime was committed, and
did so to avoid being arrested or observed.
Walkkein argues that his departure from the scene did not
warrant an inference of consciousness of guilt because he was
merely returning to the familiar environs of Denny’s, which was
another spot that he would frequent. However, “the prosecution
need not prove the defendant in fact fled, i.e., departed the scene
to avoid arrest, only that a jury could find the defendant fled and
permissibly infer a consciousness of guilt from the evidence.”
18
(People v. Bonilla (2007) 41 Cal.4th 313, 328.) Here, the jury
heard evidence that Walkkein was aware that the victim was
injured, but instead of rendering aid or calling for help, he
walked away. (See People v. Boyce (2014) 59 Cal.4th 672, 690 [no
error in giving flight instruction where neither defendant nor his
partner “attempted to render aid or call for assistance” despite
knowing victim was in mortal jeopardy]; Bonilla, at p. 329 [flight
instruction proper where defendant was aware victim had been
attacked but “did not call out to him, attempt to aid him, or call
for or go for assistance”].) While the jury could attribute an
innocent explanation to Walkkein’s conduct, it could also infer
that the circumstances surrounding his departure evinced a
consciousness of guilt.
Moreover, the instruction did “not require the jury to find
that flight occurred or rely on flight as proof of guilty intent.”
(People v. Leon (2015) 61 Cal.4th 569, 607.) Instead, it allowed
the jury to determine “[i]f . . . the defendant fled,” and if so, to
decide “the meaning and importance of that conduct.”
Considering the totality of the evidence in this case, the trial
court did not err in giving the flight instruction.
Cumulative error
Walkkein argues the cumulative effect of the claimed errors
deprived him of due process of law and a fair trial. “Cumulative
error is present when the combined effect of the trial court’s
errors is prejudicial or harmful to the defendant. [Citations.]
Although a defendant is entitled to a fair trial, he or she is not
entitled to ‘a perfect one.’ ” (People v. Capers (2019) 7 Cal.5th
989, 1017.) Here, Walkkein received a fair trial and has failed to
show any cumulative error requiring reversal of his conviction.
19
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
HILL, J.*
We concur:
EDMON, P. J.
EGERTON, J.
* Judge of the Santa Barbara County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.
20