People v. Trujillo CA2/5

Filed 3/12/21 P. v. Trujillo CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B301815
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA109262)
v.
RAUL TRUJILLO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, James D. Otto, Judge. Affirmed.
Rachel Lederman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Michael Pulos and Joy Utomi, Deputy Attorneys
General, for Plaintiff and Respondent.
__________________________
A jury found Raul Trujillo guilty of two counts of second
degree robbery and one count of hit-and-run driving, and found
true the allegation that a principal was armed with a firearm.
On appeal, he argues the flight instruction the trial court gave
violated his right to due process. We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 17, 2018, appellant was speeding down a street in
a blue Honda, ran a red light, and swerved around an Audi
narrowly missing a motorcyclist. The motorcyclist and Audi,
followed appellant. Appellant then suddenly slammed on his
brakes, causing the Audi to rear-end him. Appellant sped off.
The motorcyclist followed him, but after appellant ran several
stop signs, the motorcyclist returned to the accident scene to talk
with the Audi driver. They called the police.
As the motorcyclist and Audi driver were waiting for the
police, a black BMW pulled up and dropped off appellant and two
other men. One of appellant’s companions pointed a loaded gun
at the motorcyclist, and asked, “ ‘Were you the one that fuckin’
followed my homey?’ ” The man holding the gun then pointed it
at the Audi driver and demanded “some type of payment[].”
Appellant yanked the motorcyclist’s chain off his neck and took
his phone. Appellant also grabbed the Audi driver’s phone.
A police cruiser approached, and appellant’s companions
walked away. Appellant, however, sat down on the Audi hood.
As the cruiser pulled up behind the Audi, appellant began to
casually walk away. The motorcyclist and Audi driver shouted to
the police officer that they had just been robbed at gunpoint.
Although appellant had walked out of sight, he was apprehended
a short while later. Both the motorcyclist and Audi driver
identified appellant and his vehicle in a field show-up.
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Appellant was charged with two counts of second degree
robbery (Pen. Code, § 211) and one count of hit-and-run driving
resulting in property damage (Veh. Code, § 20002, subd. (a)).1
The information also alleged that appellant personally used a
firearm (Pen. Code, § 12022.53, subd. (b)), and a principal was
armed with a firearm (Pen. Code, § 12022, subd. (a)(1)).
Appellant pled not guilty.
At trial, the prosecutor argued that appellant “fled” from
the scene of the car accident because “he knew” the Audi had
been damaged. The prosecutor also argued that appellant’s flight
after the robbery showed his “guilt[] of having robbed two people
with a gun.”
A jury found appellant guilty on all three counts and the
section 12022 firearm allegation true. The trial court placed
appellant on five years formal probation with credit for 116 days
in jail he had already served. He timely appealed.
DISCUSSION
Appellant argues that the trial court’s instruction on flight
(CALCRIM No. 372) conflicts with the California statute that
requires the giving of a flight instruction (§ 1127c). He also
contends in related arguments that the instruction is
impermissibly argumentative and violates his right to due
process because it invites a pro-prosecution inference. Appellant
urges us to adopt these arguments without addressing, or even
citing, the two cases that have already rejected them: People v.
Paysinger (2009) 174 Cal.App.4th 26, 29 (Paysinger) and People v.
Price (2017) 8 Cal.App.5th 409, 458 (Price). We agree with the
1 All further undesignated statutory references are to the
Penal Code.
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People that Paysinger and Price are persuasive, and any error
was harmless.
We review instructional error de novo. (People v. Hudson
(2006) 38 Cal.4th 1002, 1012.) “On review, we examine the jury
instructions as a whole, in light of the trial record, to determine
whether it is reasonably likely the jury understood the challenged
instruction in a way that undermined the presumption of
innocence or tended to relieve the prosecution of the burden to
prove defendant’s guilt beyond a reasonable doubt.” (Paysinger,
supra, 174 Cal.App.4th at p. 30; People v. Ramirez (2021)
10 Cal.5th 983, 1001 [2021 WL 279642].)
1. The Flight Statute and the Instruction Given
Section 1127c requires the trial court to instruct the jury on
flight when relevant: “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.”
Here, the trial court instructed the jury with CALCRIM
No. 372 as follows: “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.”
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2. CALCRIM No. 372 Does Not Conflict with
Section 1127c
Appellant first argues that CALCRIM No. 372 conflicts
with section 1127c because the instruction “gives primary
significance” to an inference of guilt. Unlike section 1127c, which
directs the court to inform the jury that flight may be considered
in determining a defendant’s “guilt or innocence,” CALCRIM No.
372 tells the jury only that it may consider evidence of flight to
show a defendant’s awareness “of his guilt.”
We agree with the Paysinger and Price holdings that the
difference between the instruction and the statute is not
significant. (Paysinger, supra, 174 Cal.App.4th at pp. 31–32;
Price, supra, 8 Cal.App.5th at p. 455.) “It has long been accepted
that if flight is significant at all, it is significant because it may
reflect consciousness of guilt, which in turn tends to support a
finding of guilt. [Citation.]” (Paysinger, at p. 31.) Section 1127c
is not in conflict with this rule; rather, it directs the court to
instruct the jury that evidence of flight may be considered in
determining whether or not the defendant is guilty, that it is up
to the jury to determine the weight of this evidence, and that
evidence of flight itself is insufficient to prove guilt. CALCRIM
No. 372 does this. We reject appellant’s argument that the
instruction’s failure to include the statutory phrase “or
innocence” is consequential. Section 1127c’s reference to
“innocence” does not suggest that evidence of flight is likely to
show innocence, but indicates only that evidence of flight may be
considered in the jury’s determination of whether the defendant
committed the crime. Similarly, CALCRIM No. 372 instructs
that evidence of flight may show consciousness of guilt or it may
not.
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3. CALCRIM No. 372 Is Neither Argumentative Nor Did
It Impermissibly Lessen the Prosecution’s Burden of
Proof
Appellant next argues that CALCRIM No. 372 is
argumentative and violates due process because it invites the
jury to draw an inference of guilt in favor of the prosecution.
Appellant relies primarily on People v. Hunter (2011)
202 Cal.App.4th 261 (Hunter), a case that does not consider a
consciousness of guilt instruction but rather a pinpoint
instruction about robbery. He argues that Hunter held an
instruction argumentative and violative of due process “merely
because it told the jurors certain prosecution evidence ‘may
constitute sufficient circumstantial evidence’ to support” an
inference of guilt. In appellant’s view, CALCRIM No. 372 is more
argumentative and unconstitutional than the instruction at issue
in Hunter because CALCRIM No. 372 suggests a “gross inference
of guilt.”
A jury instruction is argumentative if “it would invite the
jury to draw inferences favorable to [one party] from specified
items of evidence on a disputed question of fact.” (People v.
Wright (1988) 45 Cal.3d 1126, 1135.) An “instruction lightening
the prosecution’s burden of proof violates the accused’s right to a
jury trial.” (Hunter, supra, 202 Cal.App.4th at p. 276.)
Hunter is inapposite. The defendant in Hunter challenged
an instruction that “the inability of [the defendant’s] victims to
say conclusively that the ‘gun’ he used in the commission of the
crimes was real ‘does not create a reasonable doubt as a matter of
law that the gun was not a firearm.’ ” (Hunter, supra,
202 Cal.App.4th at p. 264.) The Hunter court concluded the
instruction was “unduly argumentative” in favor of the
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prosecution because “the jury could just as accurately have been
told the opposite . . . .” (Id. at p. 276.) The court further found
the instruction lessened the prosecution’s burden of proof by
highlighting one “aspect of the evidence as not necessarily
creating a reasonable doubt . . . .” (Ibid.)
Neither deficiency afflicts CALCRIM No. 372. First, a
defendant’s flight or attempt to flee is rarely, if ever, used to
show innocence. It is overwhelmingly used to establish
consciousness of guilt. “Flight may show consciousness of guilt or
it may not, but unlike the victim’s inability to say that the gun
was real in Hunter, evidence of flight has no tendency to establish
innocence.” (Price, supra, 8 Cal.App.5th at p. 458.) Second,
CALCRIM No. 372 does not lessen the prosecution’s burden.
“Unlike the instruction in Hunter, CALCRIM No. 372 does not
focus on certain evidence and direct the jury how to consider the
evidence. Rather, while informing the jury that it can infer guilt
from flight, it both leaves it ‘up to you [the jury] to decide the
meaning and importance of that conduct’ and further, limits the
use of flight evidence by providing that it is not alone sufficient to
prove guilt.” (Price, at p. 458; see also People v. Hernandez Rios
(2007) 151 Cal.App.4th 1154, 1159 [CALCRIM No. 372 does not
“impermissibly lower[] the prosecution’s burden of proof”].)
Appellant’s argument that CALCRIM No. 372 “invited the
jury to infer appellant’s guilt from his flight,” thereby violating
due process, was rejected by the Supreme Court in People v.
Mendoza (2000) 24 Cal.4th 130 (Mendoza) superseded by statute
on another ground as stated in People v. Brooks (2017) 3 Cal.5th 1,
62–63 and footnote 8. As the Mendoza court stated: “The due
process clauses of the federal Constitution (U.S. Const., 5th &
14th Amends.) require a relationship between the permissively
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inferred fact and the proven fact on which it depends. . . . [¶] A
permissive inference does not relieve the State of its burden of
persuasion because it still requires the State to convince the jury
that the suggested conclusion should be inferred based on the
predicate facts proved. . . . A permissive inference violates the
Due Process Clause only if the suggested conclusion is not one
that reason and common sense justify in light of the proven facts
before the jury.” (Id. at p. 180, citations omitted.) The court
concluded that “permit[ting] a jury to infer, if it so chooses, that
the flight of a defendant immediately after the commission of a
crime indicates a consciousness of guilt” does not violate due
process. (Ibid.) Although the Mendoza court was addressing
CALCRIM’s predecessor, CALJIC No. 2.52, its holding applies
equally to CALCRIM No. 372. Both instructions allow the jury to
make a permissive inference, if it chooses, that the evidence of
flight indicates a defendant’s awareness of his guilt.
4. Any Error Was Harmless
Instructional errors regarding flight are subject to the state
law harmless error standard under People v. Watson (1956)
46 Cal.2d 818. (People v. Turner (1990) 50 Cal.3d 668, 695
[finding no prejudice where there was no reasonable probability
that the flight instruction affected the verdicts].) Any error in
instructing the jury with CALCRIM No. 372 was harmless
because it is not reasonably probable the alleged error affected
the verdict. The victims were face to face with appellant when
the robbery occurred and then identified him a short while later.
The circumstances of the robbery—in which appellant showed up
shortly after the car accident and his companion asked the
motorcyclist if he had been chasing his “homey” in the car—also
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provided ample evidence that appellant was the driver of the blue
Honda involved in the hit and run.
Finally, the trial court gave the jury multiple instructions
correctly explaining the prosecution’s burden of proof.2 In the
context of the jury instructions as a whole, the jury could not
have viewed CALCRIM No. 372 as relieving the prosecution of
proving appellant’s guilt beyond a reasonable doubt. (See Price,
supra, 8 Cal.App.5th at p. 456 [“[E]ven if there was instructional
error here, the jury could not possibly have understood the
instruction that way in the context of the many other instructions
explaining the prosecution’s burden of proof to demonstrate
defendant’s guilt beyond a reasonable doubt and referring to that
burden with respect to each of the crimes and special
circumstances charged.”].)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
2 Specifically, the court instructed the jury with CALCRIM
No. 103 (Reasonable Doubt), CALCRIM No. 359 (Corpus Delicti),
and CALCRIM No. 3250 (Enhancement, Sentencing Factor, or
Specific Factual Issue).
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