Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YA069887, Eric C. Taylor, Judge.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
A jury found defendant and appellant Skiler Eli Gascon guilty of four counts of second degree robbery. The trial court gave the flight instruction to the jury. Defendant contends on appeal that the court prejudicially erred by giving that instruction. We disagree and affirm the judgment, although we modify it to correct a sentencing error.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On November 2, 2007, Jacob G., Evan K., Tim L. and Kyle N. were on their way to an evening football game at South High School. A man walked down from a pedestrian bridge and pulled out a gun. The boys tried to keep going, but the man pointed his gun at them and demanded money. Jacob gave him $2 or $3; Tim gave him $6; Evan gave him $15 to $20; and Kyle also gave him money. The man threatened to check their pockets to see if they had any more money. Kyle took off his jacket and emptied his pockets to show he had no more money. The man told them not to tell anybody and to continue walking down Pacific Coast Highway. The boys ran. The man ran back across the bridge towards South High.
After getting separated, the boys met back up at a Taco Bell. They decided to call their parents but they wanted to go to a place where they felt safer. They decided to go to the game because there would be people there. When they got to the game, the boys tried to contact their parents, and Tim’s and Evan’s parents picked them up. When they got home, they called the police.
Tim and Evan didn’t go to the football game because they didn’t have a school pass to get in free.
Jacob and Kyle couldn’t get in touch with their parents, so they decided to stay at the game, where they felt safer. While there, police officers called them to discuss the robbery. Jacob gave a description of the man to the police. He later identified the man from a photographic six-pack.
At trial, Jacob, Tim and Evan identified defendant as the man who robbed them. Tim also identified defendant at the preliminary hearing.
Tim and Evan were unable to identify defendant from photographs.
On the night of the robbery, Detective Devin Guzman was working overtime detail at the South High football game. A call came across from campus security about a disturbance in the quad area; several robberies had occurred that evening. He and the Dean of Students walked to that area. When they got there, somebody said, “ ‘There he goes,’ ” and a man ran around some buses. They caught up to the man, defendant. Detective Guzman asked defendant to turn his back to him and keep his hands up. As the detective reached for his police radio, defendant started to drop his hands, so the detective reminded him to keep them in the air. Nervous, the detective grabbed defendant’s hands and told him not to move. Defendant lunged forward, and the detective lost control of him. A gun fell to the ground. Defendant picked it up and ran.
II. Procedural background.
Trial was by jury. On April 11, 2008, the jury found defendant guilty of four counts of second degree robbery (Pen. Code, § 211) and found true a gun use enhancement allegation (§ 12022.53, subdivision (b)).
All further undesignated statutory references are to the Penal Code.
After denying defendant’s new trial motion, which claimed error in instructing the jury on flight, the trial court sentenced defendant on September 15, 2008. The court sentenced defendant to three years on count 1 plus 10 years for the gun use (§ 12022.53, subd. (b)). On the remaining three counts the court sentenced defendant to three terms of three years, four months. Defendant’s total term therefore is 23 years.
DISCUSSION
I. The trial court did not err by giving the flight instruction.
Defendant contends that the trial court erred by instructing the jury on flight. We disagree.
Before the jury was instructed, defense counsel objected to the flight instruction because there was no evidence he fled immediately after the crime or after being accused of it. The trial court overruled the objection. The court instructed the jury: “If the defendant fled or tried to flee 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 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.” (CALCRIM No. 372.) During closing argument, the prosecutor said, “But, more importantly, there was an instruction regarding flight. If the defendant runs after being accused of a crime, you can consider that he was aware of his guilt. What did he do? He ran. What did the students say? ‘That’s the guy that committed the robbery and he’s armed.’ What did the defendant do after that? He ran.”
It is proper to give the flight instruction where the evidence shows that the defendant left the crime scene under circumstances suggesting a consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055; see also § 1127c.) Where the jury can reasonably infer that the defendant didn’t flee until he concluded suspicion had focused on him, it is proper to give the instruction. (People v. Howard (2008) 42 Cal.4th 1000, 1021.) But “the instruction neither requires knowledge on a defendant’s part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest.” (People v. Carter (2005) 36 Cal.4th 1114, 1182.)
Defendant here argues that there was no evidence he fled immediately after the alleged robberies. Rather, the evidence was that after he took the boys’ money, he told them to leave and he headed back over the bridge. He thus argues that this case is like People v. Clem (1980) 104 Cal.App.3d 337 and People v. Watson (1977) 75 Cal.App.3d 384, in which the courts held it was error to instruct the jury on flight. The defendant in Clem raped the victim in her car and then he got out of the car. He was arrested at his workplace about two weeks later. It was nonprejudicial error for the trial court to instruct the jury on flight because the “mere fact that defendant did not remain at the scene of the crime for a time sufficiently convenient to enable the police to effect his arrest, but was arrested some days later at a different locale is insufficient evidence to warrant an instruction on flight after crime as evidencing a consciousness of guilt.” (Clem, at p. 344.) In Watson, two days after the murder victim’s body was found, defendant, who had last been seen with the victim, was spotted standing on a street corner. (Watson, at pp. 391-392.) When approached by police, he did not run and was arrested. The trial court gave the flight instruction to the jury, and the Court of Appeal found that “the mere fact of defendant’s arrest nearly two days later and miles away from the crime scene—standing alone—is not evidence of flight that may support an inference of guilt.” (Id. at p. 403.)
Clem and Watson are distinguishable from this case. Here, defendant left after robbing the boys. Not long thereafter, Detective Guzman received a call that there was a disturbance at the football game related to some robberies. When he got to the area of the disturbance, someone yelled, “ ‘There he goes,’ ” and defendant ran. When the detective told defendant to put his hands in the air, he disobeyed instructions and instead struggled with the detective and tried to run away again. Thus, unlike in Clem and Watson, where there was no evidence the defendant tried to flee, there was such evidence here.
Defendant acknowledges that he tried to flee after struggling with the detective, but he argues that “this was in response to the struggle itself, not the robbery. In fact, [defendant’s] flight occurred at a different place and time from where and when the robbery was perpetrated.” He characterizes his struggle with the detective as an “intervening circumstance that severed any link between the robbery and [his] flight.” No authority is cited for this facially unpersuasive “intervening circumstance” theory. But even if we grant that a permissible inference from the evidence is that defendant tried to flee in response to the struggle, then it still wasn’t error to give the flight instruction. Another permissible inference is he tried to flee because of a consciousness of guilt about the robberies. The flight instruction did not preclude the jury from making either inference. (People v. Avila (2009) 46 Cal.4th 680, 710-711 [the flight instruction adequately conveys the concept that if flight is found, the jury is allowed to consider alternative explanations for a defendant’s flight, other than consciousness of guilt].) The trial court also instructed the jury: “Some of these instructions may not apply, depending on what your findings about the facts of the case are. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.”
Defendant next argues that there is no evidence he knew he’d been accused of robbing the students. That argument misses the point of the instruction. The instruction allows the jury to infer a consciousness of guilt from flight; in other words, flight may be evidence that defendant committed the crime. Indeed, the instruction may be properly given even if the defendant doesn’t know that criminal charges have been filed. People v. Carter, supra, 36 Cal.4th at p. 1182.
II. The court-construction fee.
The trial court imposed a $30 court-construction-fund fine. Defendant contends, and the People agree, that the fine was improper.
Government Code section 70372 provides in part: “(a)(1) Except as otherwise provided in subdivision (b) of Section 70375 and in this article, there shall be levied a state court construction penalty, in the amount of five dollars ($5) for every ten dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or forfeiture imposed and collected by the courts for all criminal offenses, including, but not limited to, all offenses involving a violation of a section of the Fish and Game Code, the Health and Safety Code, or the Vehicle Code or any local ordinance adopted pursuant to the Vehicle Code. This penalty is in addition to any other state or local penalty, including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000. [¶]... [¶] (3) This construction penalty does not apply to the following: [¶] (A) Any restitution fine.” The penalty assessment and surcharge provisions in section 70372 do not apply to restitution fines. (People v. Walz (2008) 160 Cal.App.4th 1364, 1372.) The trial court therefore should not have imposed the $30 court-construction-fund fine.
DISPOSITION
The abstract of judgment is modified to omit the $30 court-construction-fund fine. The clerk of the superior court is directed to forward the modified abstract of judgment to the Department of Corrections. The judgment is affirmed as modified.
We concur, KLEIN, P. J.,KITCHING, J.