People v. Paulson CA1/1

Filed 5/25/23 P. v. Paulson CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A163471
v.
LANCE ALLAN PAULSON, (Contra Costa County
Super. Ct. No. 05-181374-0)
Defendant and Appellant.
Defendant Lance Allan Paulson appeals his conviction for first degree
murder, asserting the trial court improperly instructed the jury with a
modified flight instruction. We disagree and affirm the judgment.
I.
BACKGROUND
A. Factual Background
Defendant and the victim, Steve Gagnon, were longtime friends who
saw each other on a regular basis. On April 2, 2017, defendant and Gagnon
planned to meet at Gagnon’s house to watch a television show. Gagnon
invited defendant to arrive around 6:00 p.m.
The following day, Gagnon did not report to work, and his supervisor
was unable to reach him. Another supervisor went to Gagnon’s house to
check on him. After arriving at Gagnon’s home, the supervisor either
knocked on the door or rang the bell. Defendant answered the door. The
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supervisor observed defendant looked like “someone who had been in a fight
or beat up” because his teeth appeared to be knocked out, one eye was
bulging and black and blue, there was a cut on his head, and there was “blood
splatter” on his shirt. The supervisor asked defendant if he was okay, to
which he responded affirmatively.
The supervisor then asked if Gagnon was home. Defendant stated
Gagnon was sleeping. The supervisor asked if he could come in and wake up
Gagnon. Defendant allowed the supervisor to enter and indicated toward the
bedroom where Gagnon’s body was located. After observing Gagnon lying on
his stomach in blood, the supervisor left the house and called 911.
Several officers arrived and one took defendant into custody. Detective
Corporal Brian Elder observed defendant’s black eye, an injury under
defendant’s chin that appeared consistent with a gunshot, injuries to the top
of defendant’s forehead at the hairline, and injuries to his mouth that made
speech difficult. Inside the house, blood was present in numerous areas,
including the bathroom floor, a Swiffer mop in the closet, the handle of a
sliding glass door, bedroom walls, the bed in the master bedroom, and the
kitchen sink and floor. Gagnon was observed lying on the floor in a pool of
blood. There were no drag marks or other evidence indicating Gagnon had
been moved to the location where he was found.
The police also located a Colt 1911, .45-caliber, semiautomatic pistol
with blood on it and three rounds in the magazine. A shell casing was also
stuck in the gun’s chamber, which a firearms expert explained could occur if
something prevented the gun from fully cycling and ejecting the cartridge
case, such as the user did not hold the gun firmly enough or held it at an
awkward angle when firing. Two empty .45-caliber shell casings were located
in the hallway and one in the bedroom near Gagnon. Three corresponding
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bullet holes were located in the bedroom wall across from the hall. The
firearms expert determined the casings were all from the Colt pistol. The
pistol’s serial number matched that of a pistol owned by defendant’s
stepfather.
Police also located a bullet hole in the living room window near the
front door, along with blood on the living room floor, living room couch, wall
above the couch, and a hat on the corner of the couch. A crime scene analyst
testified the bullet hole and blood spatter on the wall were consistent with
defendant shooting himself. A forensic pathologist testified a bullet being
fired through someone’s head could cause a black eye, and a bullet entering
under the chin in the middle of the head would likely cause two black eyes.
B. Procedural Background
The Contra Costa County District Attorney charged defendant with
first degree murder. (Pen. Code, § 187, subd. (a).) The information further
alleged personal discharge of a firearm causing great bodily injury or death.
(Id., § 12022.53, subd. (d).)
During trial, the prosecution requested the court provide an instruction
entitled “Consciousness of Guilt.” That instruction stated: “If the defendant
attempted to kill himself after the crime was committed, that conduct may
show that he was aware of his guilt. If you conclude the defendant attempted
to kill himself, it is up to you to decide the meaning and importance of that
conduct. However, evidence that the defendant attempted to kill himself
cannot prove guilt by itself.” Defendant objected to the proposed instruction,
asserting the record did not support a finding that he attempted suicide or
that any such attempt was made to avoid arrest or prosecution. The trial
court overruled defendant’s objection, noting, “Courts have long held any
conduct of a defendant subsequent to the commission of the crime tending to
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show consciousness of guilt is relevant and admissible.” It explained “there
has been some evidence that if believed by the jury could have them find that
the defendant’s attempted suicide was evidence of his consciousness of guilt.”
The court subsequently gave the requested instruction.
The jury found defendant guilty of first degree murder and found true
the firearm enhancement. The trial court sentenced defendant to consecutive
prison terms of 25 years to life for murder, and 25 years to life for the firearm
enhancement. Defendant timely appealed.
II.
DISCUSSION
On appeal, defendant argues the trial court improperly gave an
instruction entitled, “Consciousness of Guilt.”1 He contends the instruction
was improper because there was no evidence defendant attempted suicide in
an effort to evade or hinder prosecution.
A. CALCRIM No. 372
The court has a sua sponte duty to instruct on flight whenever the
prosecution relies on evidence of flight to show consciousness of guilt. (Pen.
Code, § 1127c; People v. Abilez (2007) 41 Cal.4th 472, 521–522.) “ ‘ “ ‘[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
1 The instruction at issue was designated CALCRIM No. 371, entitled
“Consciousness of Guilt.” However, we refer to it as CALCRIM No. 372
because the instruction is actually a modified version of CALCRIM No. 372,
entitled “Defendant’s Flight.” The model CALCRIM No. 372 states: “If the
defendant fled [or tried to flee] (immediately after the crime was committed/
[or] after (he/she) was accused of committing the crime), that conduct may
show that (he/she) was aware of (his/her) guilt. If you conclude that the
defendant fled [or tried to flee], it is up to you to decide the meaning and
importance of that conduct. However, evidence that the defendant fled [or
tried to flee] cannot prove guilt by itself.”
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avoid being observed or arrested.’ ” ’ [Citation.] While physical flight to
evade capture or escape from custody are two obvious examples of relevant
conduct, the courts have long held ‘ “[a]ny conduct of a defendant subsequent
to the commission of the crime tending to show consciousness of guilt is
relevant and admissible . . . .” ’ [Citation.] ‘[T]here need only be some
evidence in the record that, if believed by the jury, would sufficiently support
the suggested inference [of consciousness of guilt].’ ” (People v. Pettigrew
(2021) 62 Cal.App.5th 477, 497–498, italics added by Pettigrew (Pettigrew).)
“ ‘The evidentiary basis for the flight instruction requires sufficient, not
uncontradicted, evidence.’ ” (Id. at p. 499.)
We review a claim of instructional error de novo. (People v. Mitchell
(2019) 7 Cal.5th 561, 579.) Reversal is required only if the instructional error
resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v.
Watson (1956) 46 Cal.2d 818, 836.)
In Pettigrew, the court held it was error to instruct on flight, pursuant
to CALCRIM No. 372, where there was no evidence the defendant attempted
to flee after the crime or escape from custody after his arrest. (Pettigrew,
supra, 62 Cal.App.5th at p. 499.) After his arrest, however, the defendant
twice tried to hang himself with his clothing in his jail cell. (Id. at p. 488.)
Under the circumstances, the Pettigrew court determined it would have been
appropriate for the trial court to draft an instruction based on the pattern
instructions and relevant cases regarding the defendant’s suicide attempts as
evidence of consciousness of guilt. (Id. at pp. 499–500.)
Defendant contends that here, unlike in Pettigrew, the instruction is
inapplicable because he did not attempt suicide post-arrest or take actions
prior to his arrest that were designed to impede the investigation. He notes
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he remained in the house, did not dispose of the gun or conceal evidence,
allowed Gagnon’s body to be discovered, and complied with police directives.
However, Pettigrew did not limit its holding to post-arrest suicide
attempts. To the contrary, that court acknowledged “ ‘ “[a]ny conduct of a
defendant subsequent to the commission of the crime tending to show
consciousness of guilt is relevant and admissible . . . .” ’ ” (Pettigrew, supra,
62 Cal.App.5th at p. 497, italics omitted, italics added.) Here, trial testimony
indicated (1) defendant had injuries to the area under his chin, to his mouth,
tongue, and the top of his forehead, and had a black eye; (2) the injuries to
the area under defendant’s chin and his forehead were consistent with a
gunshot; and (3) black or swollen eyes are often a sign of being shot in the
head. An officer responsible for crime scene processing also testified the
evidence from the living room, including bullet hole in the window and blood
spatter on the wall above the sofa, were consistent with defendant shooting
himself. In addition, while the exact timing of defendant and Gagnon’s
interactions are uncertain, the record indicates Gagnon did not move from
the spot where he was found after being shot. An officer also testified the
weapon was found “stovepiped,”2 which suggested the last shot could have
been a suicide attempt.
Defendant contests the sufficiency of this evidence. For example, he
contends a suicide attempt would have caused two black eyes rather than
one, and the crime scene analyst had limited knowledge of blood spatter
analysis and bullet trajectories. However, these arguments are appropriate
for the jury to consider when assessing whether defendant attempted suicide.
It does not undermine the appropriateness of the instruction, as “ ‘[t]he
2 “Stovepiping” refers to a firearm malfunction in which a bullet casing
is stuck inside the gun’s chamber.
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evidentiary basis for the flight instruction requires sufficient, not
uncontradicted, evidence.’ ” (Pettigrew, supra, 62 Cal.App.5th at p. 499.)
We thus conclude evidence from the crime scene, together with the
injuries to defendant’s face, could support a reasonable inference defendant
attempted to commit suicide, reflecting consciousness of guilt. The trial court
instructed the jury with a modified version of CALCRIM No. 372, that it
could use such evidence for the limited purpose of deciding whether
defendant had attempted to commit suicide and, if so, what importance
should be attached to that attempt. It further instructed that evidence
defendant made such plans could not prove guilt by itself. On this record,
defendant has not shown the instruction was erroneous as a matter of law or
unsupported by sufficient evidence. (Accord, People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 102 [“facts giving rise to an inference of consciousness of
guilt” do not need to be conclusively established; “there need only be some
evidence in the record that, if believed by the jury, would sufficiently support
the suggested inference”].)3
B. Harmless Error
In any event, even if the trial court erred in instructing the jury with
CALCRIM No. 372, we conclude the error was harmless. “The instruction did
not assume that flight was established, but instead permitted the jury to
3 Defendant also objects to much of the evidence being circumstantial.
But he fails to cite any authority suggesting juries cannot rely on such
evidence. To the contrary, such evidence is admissible and trial courts only
must “instruct the jury regarding how to evaluate circumstantial evidence
‘ “. . . when the prosecution substantially relies on circumstantial evidence to
prove guilt.” ’ ” (People v. Contreras (2010) 184 Cal.App.4th 587, 591.) Here,
the court did so by instructing the jury with CALCRIM Nos. 223 (“Direct and
Circumstantial Evidence: Defined”) and 224 (“Circumstantial Evidence:
Sufficiency of Evidence”).
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make that factual determination and to decide what weight to accord it.”
(People v. Carter (2005) 36 Cal.4th 1114, 1182–1183.) Moreover, the evidence
of Gagnon’s injuries, defendant’s presence at Gagnon’s house during the time
of the incident, and that the weapon belonged to defendant’s stepfather all
support the jury’s verdict. Accordingly, there is no reasonable probability the
jury would have reached a more favorable result in the absence of the
instruction.
III.
DISPOSITION
The judgment is affirmed.
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MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BOWEN, J.*
A163471
People v. Paulson

Judge of the Contra Costa County Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California Constitution.
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