People v. Araujo CA5

Filed 8/1/23 P. v. Araujo CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F084348
Plaintiff and Respondent,
(Super. Ct. No. 2060585)
v.
DAVID ANGEL ARAUJO, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Kellee C.
Westbrook, Judge.
Aaron Spolin for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Russ K.
Naughton, Deputy Attorneys General, for Defendant and Respondent.
-ooOoo-
* Before Poochigian, Acting P. J., Meehan, J. and DeSantos, J.
Following a jury trial, defendant David Angel Araujo was convicted of
five offenses arising from two incidents of domestic violence. On appeal, defendant’s
sole argument is that the wording of the flight instruction given to the jury conflicts with
Penal Code section 1127c1 and is unconstitutionally argumentative. We reject this
argument, following the many courts to have rejected similar arguments in the past, and
we therefore affirm the judgment.
BACKGROUND
The Stanislaus County District Attorney charged defendant with two counts of
battery of a person in a dating relationship (§ 273.5, subd. (a); counts 1 & 3), assault with
a deadly weapon (§ 245, subd. (a)(1); count 2), assault likely to produce great bodily
injury (§ 245, subd. (a)(4); count 4), threatening to commit a serious crime (§ 422,
subd. (a); count 5), and false imprisonment (§ 236; count 6). For each of counts 3
through 5, the district attorney also alleged an enhancement for personal use of a deadly
weapon (§ 12022, subd. (b)(1)).
These charges stemmed from two instances of domestic violence in 2016.
Because our resolution of the lone legal issue on appeal does not depend on the state of
the evidence, we omit description of most of the underlying facts. It is sufficient to note
the trial evidence that, after the second incident, defendant drove away from the house
where the attack occurred.
This evidence appears to be the basis for the People’s request that the trial court
give the pattern CALCRIM No. 372 jury instruction on “flight” as showing
consciousness of guilt. During a conference off the record, defendant objected to this
instruction, although the precise wording of the objection is unavailable because the
conference was not transcribed. However, once back on the record, the court explained
the conversation with counsel and its ruling on the instruction as follows:
1 All further statutory references are to the Penal Code.
2.
“And there was a dispute about whether instruction 372 should be
given. [Defense counsel] requested that it doesn’t. The prosecution
requests that it does. Certainly both parties can argue about whether it was
actual flight or not, however, given the fact that the Court has a sua sponte
duty to instruct on it when the prosecution relies on evidence, a flight to
show consciousness of guilt, I will be giving it, and that’s People v.
Williams [(1960) 179 Cal.App.2d 487, 491].”
Accordingly, the jury received instruction 372, which mirrored the applicable portions of
the CALCRIM No. 372 pattern flight instruction.
The jury convicted defendant on all charges except count 2, assault with a deadly
weapon; and it found not true the associated deadly weapon enhancements. Defendant
was sentenced to an aggregate term of four years in prison, pursuant to the parties’
agreement. This appeal followed.
DISCUSSION
Defendant raises just one issue on appeal, challenging the wording of the flight
instruction from two related angles. He argues, first, that the language of instruction 372
“conflicts with” section 1127c, the statute requiring the giving of a flight instruction
when appropriate.2 He also argues that the instruction, which replicates CALCRIM
No. 372, is unconstitutionally argumentative, in violation of his right to due process.
Defendant’s challenges are purely legal ones, as he does not argue there was insufficient
evidence to support a flight instruction.
“A claim of instructional error is reviewed de novo. [Citation.] An appellate court
reviews the wording of a jury instruction de novo and assesses whether the instruction
accurately states the law. [Citation.] … The challenged instruction is viewed ‘in the
context of the instructions as a whole and the trial record to determine whether there is a
reasonable likelihood the jury applied the instruction in an impermissible manner.’ ”
(People v. Mitchell (2019) 7 Cal.5th 561, 579.)
2 Defendant’s briefs mistakenly refer to nonexistent section 1172c, but it is clear
from his arguments that he intends to reference section 1127c.
3.
Both of defendant’s twin legal challenges to the wording of instruction 372 have
been rejected by numerous courts, including this one. (See, e.g., People v. Price (2017)
8 Cal.App.5th 409, 454–458 (Price); People v. Paysinger (2009) 174 Cal.App.4th 26,
29–32 (Paysinger); People v. Hernández Ríos (2007) 151 Cal.App.4th 1154, 1158–1159
(Hernández Ríos) [addressing unconstitutionality argument only].) Defendant
acknowledges none of these cases in his opening brief; and in reply to the People’s
citations, he simply states these cases were “wrongly decided,” without offering any
analysis. We disagree and find these cases persuasive, well-reasoned, and squarely on
point with this case.3
Taking defendant’s statutory argument first, instruction 372 did not conflict with
section 1127c. “[S]ection 1127c requires that whenever evidence of flight is relied on to
show guilt, the court must instruct the jury that while flight is not sufficient to establish
guilt, it is a fact which, if proved, the jury may consider.” (People v. Pensinger (1991)
52 Cal.3d 1210, 1243.) In full, the statute reads: “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.)
Here, instruction 372 replicated the applicable portions of the pattern flight
instruction in CALCRIM No. 372, stating: “If the defendant fled or tried to flee
3 The People argue that defendant forfeited his challenge to the wording of
instruction 372 by failing to request modification of the standard instruction at trial, citing
People v. Sánchez (2016) 63 Cal.4th 411, 461. Even assuming the argument was
forfeited, we exercise our discretion to resolve the claim on its merits.
4.
immediately after the crime was committed, that conduct may show that he was aware of
his 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.”
Defendant argues this instruction “conflicts with” section 1127c in two ways:
(1) by “effectively revers[ing] the onus set forth in [section] 11[27]c,” and (2) by
instructing the jury that flight “ ‘may show [defendant] was aware of his guilt,’ ” in
purported contrast to section 1127c’s statement that flight “ ‘is not sufficient in itself to
establish … guilt.’ ” Defendant does not explain his onus-reversal argument, but based
on similar sounding arguments raised in the above cited cases, he appears to be objecting
to CALCRIM No. 372 “tell[ing] the jury that flight may show awareness of guilt before
telling the jury that flight alone is not sufficient to prove guilt, while … section 1127c
communicates those ideas in the opposite order.” (Paysinger, supra, 174 Cal.App.4th at
p. 31.) In Paysinger, the court held this difference in sentence order did not render
CALCRIM No. 372 unconstitutional or otherwise unlawful. (Paysinger, at p. 31.) We
agree with Paysinger that the first sentence of CALCRIM No. 372 does not suggest that
evidence of flight is sufficient to show guilt, “and in any event the final sentence of the
instruction positively refutes any such suggestion.” (Paysinger, at p. 31; see Price,
supra, 8 Cal.App.5th at p. 455 [quoting and adopting Paysinger’s analysis].)
This conclusion likewise disposes of defendant’s related argument that CALCRIM
No. 372 conflicts with section 1127c by inviting the jury to treat evidence of flight as
sufficient in itself to prove guilt. Again, reading the instruction as a whole, rather than in
the snippets defendant selects, CALCRIM No. 372 delivers the message required by
section 1127c: that the jury should not assume guilt from flight but may consider it as
relevant on the issue of guilt. (See People v. Hill (1967) 67 Cal.2d 105, 120 [“the giving
of an instruction on flight in language which varies slightly from that of section 1127c is
not error”]; Paysinger, supra, 174 Cal.App.4th at p. 31 [we do not view one part of an
5.
instruction in isolation from another part]; see also People v. Han (2000) 78 Cal.App.4th
797, 808 [holding that the standard flight instruction in CALCRIM No. 372’s
predecessor, CALJIC No. 2.52, accomplished its purpose “to protect the defendant from
the jury’s simply assuming guilt from flight”].)
We turn next to defendant’s unconstitutionality argument, in which he argues the
flight instruction was also “improperly argumentative” pursuant to People v. Wright
(1988) 45 Cal.3d 1126 (Wright). A jury instruction is impermissibly 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.” (Wright, at p. 1135.) Instead, a proper
instruction “ ‘should contain a principle of law applicable to the case, expressed in plain
language, indicating no opinion of the court as to any fact in issue.’ ” (Ibid.) An
argumentative instruction in favor of the prosecution violates due process because it
lightens the prosecution’s burden of proof.
Defendant’s only explanation of how CALCRIM No. 372 runs afoul of this rule is
by repeating his argument that CALCRIM No. 372 incorrectly “presumes an awareness
of guilt when a defendant is alleged to have fled or tried to flee.” As just explained,
CALCRIM No. 372 neither in whole nor in part directs any presumption of guilt. The
present instruction bears no resemblance to the one at issue in Wright, where it was held
that the trial court correctly denied the defendant’s proposed pinpoint instruction listing
“certain specific items of evidence introduced at trial, and … advis[ing] the jury that it
may ‘consider’ such evidence in determining whether defendant is guilty beyond a
reasonable doubt.” (Wright, supra, 45 Cal.3d at p. 1135.) “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, supra,
8 Cal.App.5th at p. 458; see Hernández Ríos, supra, 151 Cal.App.4th at p. 1159
6.
[rejecting the defendant’s arguments that CALCRIM No. 372 “impermissibly presumes
the existence of his guilt and lowers the prosecution’s burden of proof”]; see also People
v. Pettigrew (2021) 62 Cal.App.5th 477, 502 [adopting the reasoning of Price, Paysinger,
and Hernández Ríos in rejecting the defendant’s due process challenge to CALCRIM
No. 372].)
As this court noted over a decade ago in Hernández Ríos, supra, 151 Cal.App.4th
at pp. 1158–1159, the Supreme Court has also effectively rejected defendant’s argument
that CALCRIM No. 372 violates due process in People v. Mendoza (2000) 24 Cal.4th
130, superseded by statute on another ground as stated in People v. Brooks (2017)
3 Cal.5th 1, 62–63 and footnote 8. In Mendoza, the high 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. (Mendoza, at p. 180.) Although Mendoza was addressing CALJIC No. 2.52,
CALCRIM No. 372’s predecessor, both instructions allow for the same permissive
inference that evidence of flight may show awareness of guilt.4
Accordingly, there was no error in the wording of the flight instruction.
DISPOSITION
The judgment is affirmed.
4 The version of CALJIC No. 2.52 at issue in Mendoza read:
“ ‘The flight of a person immediately after the commission of a
crime, or after he is accused of the crime, is not sufficient in itself to
establish his guilt, but is a fact which, if proved, may be considered by you
in light of all other proved facts in deciding the question of his guilt or
innocence. The weight to which such circumstance is entitled is a matter
for the jury to determine.’ ” (People v. Mendoza, supra, 24 Cal.4th at
p. 179.)
7.