Opinion
E065591
05-01-2018
THE PEOPLE, Plaintiff and Respondent, v. DEONTRAY ROBINSON, Defendant and Appellant.
Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1102662) OPINION APPEAL from the Superior Court of Riverside County. David A. Gunn, Judge. Affirmed. Kimberly J. Grove, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted defendant Deontray Robinson of the first degree murder of Jerry Mitchell, Jr., with the special circumstances that defendant committed the murder to silence a witness and while actively participating in a criminal street gang. The jury also convicted defendant of robbery, being a felon in possession of a firearm, and actively participating in a criminal street gang, and found true various firearm and gang enhancement allegations. Defendant admitted to having suffered a prior serious and violent felony conviction. The trial court declared a mistrial during the penalty phase when the jury deadlocked on whether to impose a sentence of death or life without the possibility of parole (LWOP). Thereafter, the court sentenced defendant to LWOP, plus 55 years to life.
Defendant appeals, contending: (1) the trial court erred by not bifurcating trial of a substantive gang offense, a gang special circumstance allegation, and gang enhancement allegations; (2) the trial court prejudicially abused its discretion by permitting the prosecutor to introduce photographs of a handgun from defendant's phone; (3) the trial court erred by instructing the jury that one of the factors to consider when determining the validity of an eyewitness identification is how certain the witness was when he or she made the identification; and (4) the evidence did not support instructing the jury that flight may be considered evidence of guilt.
We find no prejudicial error. The trial court had no authority to bifurcate trial of the substantive gang offense and the gang special circumstance allegation. The cross-admissibility of gang evidence on the substantive gang offense and other offenses meant there was no need to bifurcate trial of the gang enhancements. The photographs on defendant's phone of a handgun matching the caliber of the gun used in the murder was relevant evidence, and the trial court properly admitted them. With respect to the instruction on eyewitness identification, defendant did not object to the instruction or request that the trial court modify it to remove the certainty factor, so the claim of error is forfeited. In any event, binding precedent forecloses defendant's suggestion that the certainty factor should not have been included in the instruction. Finally, defendant cannot establish he was prejudiced by the flight instruction. Therefore, we affirm the judgment.
II.
PROCEDURAL BACKGROUND
In a second amended information, the People charged defendant with first degree murder (Pen. Code, § 187, subd. (a), count 1), robbery in concert within an inhabited dwelling (§§ 211, 213, subd. (a)(1)(A), count 2), being a convicted felon in possession of a firearm (§ 12021, subd. (a)(1), count 3), and actively participating in a criminal street gang (§ 186.22, subd. (a), count 5).
All undesignated statutory references are to the Penal Code.
The information charged codefendant Romaine Ulyses Martin in counts 1 through 2 and 4 through 9, and alleged various special circumstance allegations and enhancement allegations against him. The trial court declared a mistrial as to Martin, and trial on the charges against defendant proceeded. Martin is not a party to this appeal.
The People sought the death penalty and alleged four special circumstance allegations: (1) the murder was committed while defendant was engaged in the commission of an attempted robbery (§ 190.2, subd. (a)(17)(A)); (2) the murder was committed while defendant was engaged in the commission of an attempted burglary (§ 190.2, subd. (a)(17)(G)); (3) the murder was committed with the express intention of silencing a witness of a crime (§ 190.2, subd. (a)(10)); and (4) the murder was committed while defendant was actively participating in a criminal street gang and to further the activities of the gang (§ 190.2, subd. (a)(22)).
Finally, for purposes of sentencing, the People alleged defendant personally and intentionally discharged a firearm during the commission of counts 1 and 2, and proximately caused great bodily injury or death to a person other than an accomplice (§§ 12022.53, subd., (d), 1192.7, subd. (c)(8)), defendant committed the offenses alleged in counts 1 through 3 for the benefit of, at the direction of, and in association with a criminal street gang (§ 186.22, subd. (b)), and defendant suffered a prior serious and violent felony conviction for robbery (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).
A jury convicted defendant on all four offenses alleged against him in counts 1 through 3 and 5. The jury made true findings on the special circumstance allegations that defendant committed the murder to silence a witness and while actively participating in a criminal street gang. It did not find true the burglary and robbery special circumstance allegations.
The jury found true the allegations that defendant personally discharged a firearm during the commission of count 1 and that defendant committed counts 1 through 3 for the benefit of a criminal street gang. The jury also found that defendant did not personally discharge a firearm during the commission of count 2.
During the penalty phase for count 1, the jury was unable to unanimously agree on a verdict, and polling indicated the jury was hopelessly deadlocked between a verdict of death or LWOP. Therefore, the trial court declared a mistrial of the penalty phase. The prosecution subsequently informed the court it would not retry the penalty phase and seek the death penalty. Instead, the prosecution would accept a sentence of LWOP. Defendant then admitted he had suffered a prior conviction for a serious and violent felony.
The court sentenced defendant on count 1 to the indeterminate prison term of LWOP. With enhancements, the court sentenced defendant under the one strike law to 25 years to life for the personal discharge of a firearm during the commission of count 1, and to 30 years to life for count 2, for a total determinate term of 55 years to life. The trial court sentenced defendant on counts 3 and 5 and their related enhancements, but stayed execution of sentence pursuant to section 654. The trial court awarded defendant 1,750 days of credit for time in custody.
Defendant timely appealed from the judgment.
The trial court entered a postjudgment order that defendant pay $1,959.55 in restitution to the victim's family to cover their mileage. Defendant subsequently objected, and the trial court struck the restitution order, finding defendant did not have the ability to pay. Although the trial court provided defendant with the relief he sought, defendant filed a notice of appeal from the latter postjudgment order. We fail to see how defendant was aggrieved by the postjudgment order striking the restitution order or how it affected his substantial rights. (See § 1237, subd. (b).) In any event, defendant presents no argument in his briefs regarding the order, so any claim of error is forfeited. (People v. Stanley (1995) 10 Cal.4th 764, 793.)
III.
FACTS
A. Events leading up to the Robbery and Murder.
Jones was in a sexual relationship with Martin, who went by the street name Squab, for a few months before the murder. Martin did not have his own vehicle, so he often borrowed Jones's silver Mitsubishi Lancer. Martin was friends with defendant. Jones knew defendant as Bam or Little Bam. Martin and defendant told Jones they were members of the Black P Stones gang, and the two fraternized with other members of the Black P Stones gang. A few days before the murder, Jones heard Martin and defendant discuss committing a "lick," or a robbery. Defendant told Martin "that they had this lick and that it was about $10,000 and that they needed to do it."
On May 27, 2011, the day of the robbery and murder, Jones and Martin went to the apartment of one of the gang's members in Moreno Valley. There were 10 to 15 people there, shooting dice, drinking, smoking, and listening to music. Jones left the apartment a few hours later with some friends, and she left her car keys with Martin.
Mills lived in an apartment complex in Moreno Valley on Carnation Lane. She lived near Mitchell, who she knew as JT. Mills knew defendant as Bam or Bam Deuce, and she had frequently seen him around the apartment complex. Earlier on the day of the robbery and murder, Mills saw defendant arrive at the apartment complex in a green SUV with Martin and a third man. Defendant had a confrontation with a man named Delvon, and defendant said he was going to go get a "strap" or a gun. Defendant left briefly and came back with a gun to shoot Delvon. The confrontation deescalated, and Delvon and Martin left. Defendant stayed at the apartment complex. After the confrontation, Mills saw defendant drive off in a different vehicle and come back.
Mills testified that defendant had introduced himself as a member of the Black P Stones gang. Mills had previously lived in a Los Angeles neighborhood with members of the Black P Stones gang, and she knew that the gang was affiliated with the Bloods gang and that they wore red, a color associated with the Bloods.
B. The Robbery and Murder.
Williams lived in the same apartment complex as Mills. On the evening of the robbery and murder, Williams, her boyfriend, Mills, and another neighbor were hanging out, eating pizza, and talking. Around 11:30 p.m., a silver car and an SUV entered an alleyway, and the SUV backed into a parking spot near JT's residence.
Williams testified she saw three people in dark clothing go back and forth from JT's residence to the SUV for about five minutes. She testified the alleyway was dark, and she could not identify who the people were or even whether they were male or female. Williams saw the people move a large item, which looked like a television set, to the SUV.
Mills testified she saw defendant and Martin go back and forth from JT's home with televisions and other items, and put them in the SUV. The area where Mills was standing was very dark, but the area where she saw defendant was well lit. Mills clearly identified defendant as one of the men. Defendant was dressed in black, which is different than how he was dressed when Mills saw him earlier in the day. Defendant had a beanie on and was wearing glasses.
During the investigation, Mills was shown a photograph of a man she thought looked like defendant, who she identified as Bam from Bity Stones, which is affiliated with the Black P Stones gang.
At the same time, Luckett, who lived next door to JT, heard rumbling and glass break next door. JT then came to Luckett's door. He seemed to be confused, he was bleeding from his head, and he asked Luckett to call 911. JT told Luckett, "they was trying to rob me, and I just got into a fight." He also said someone hit him in the head with a gun. JT said he knew the people who had robbed and hit him in the head, but he did not say who they were. As she spoke to JT at her front door, Luckett saw an African-American male standing in the distance. JT walked away, and Luckett called 911.
After the SUV drove off, Mills walked across the alleyway and saw JT walk over and knock on his neighbor's door. JT had blood coming out of his ear, and he appeared to be dazed. When Mills asked what had happened, JT replied, "They beat me. They put a gun to my head and they robbed me." He also said, "You know who did it," "You-all know what happened. You-all know who did this to me." At the end of the alleyway, Mills saw the same SUV parked with its brake lights on.
Mills then told Williams, "Girl, they beat the shit out of him." Williams told Mills she was going to go see JT and let him use her phone. Mills was scared, so she left and went back to her apartment. Williams then walked over to JT's residence. Inside, Williams saw that JT had blood on his head and face, and he seemed confused. The lights were on inside JT's home and the lamppost outside the front door was lit. When Williams asked what had happened, JT said, "They got me." The residence was "trashed," there was "stuff everywhere," and "the furniture was turned upside-down." JT said, "they took everything," including his television, car keys, cellular phone, wallet, and money. Williams asked JT for the number of someone to call for help. JT could not remember a phone number, so Williams called 911. JT did not give Williams any details about what had happened, merely telling her "they" did it. Williams then walked outside for a few moments. Williams heard JT making noises and saying, "Man," so she walked back inside and tried to calm him down.
Just then, defendant walk up to the door of JT's residence. Williams recognized defendant "from around the way." Williams had seen defendant around the apartment complex at least 20 times and had spoken to defendant about four times before. She knew defendant as "Tattoo Man" because he did tattoos. Williams was relieved defendant was there because JT had been to her apartment with defendant about two weeks earlier, and the two men were "buddies." Defendant was wearing a black hoodie and had glasses on his face. Defendant wore glasses every time Williams had seen him in the past. Defendant was standing about three feet from her, and she saw defendant's face clearly.
Defendant then pointed a gun at JT with his left hand and shot JT about four times. Defendant fired his gun until he ran out of bullets, and Williams heard a click. Next door, Luckett heard the sound of gunshots as she was on the phone calling 911. Mills also heard the gunshots. Williams was scared and thought she was next. Defendant said, "Fuck you," and walked away. Williams then locked the front door. JT was on the ground, curled up on his side and moaning. There was blood all over. Williams was on the staircase talking to JT when she passed out. The next thing she remembered was police officers coming inside.
Independent evidence proved defendant is left handed.
During the investigation, Williams at first identified someone who looked like defendant from a photographic lineup, but she later positively identified defendant as the shooter from different photographs. Williams testified she had no doubt that the man she saw shoot JT was defendant.
Deputies with the Moreno Valley Police Department responded to a report of an assault with a deadly weapon at the apartment complex. Luckett, the reporting party, directed the officers to the scene of the occurrence. The deputies saw four spent shell casings on the ground in front of JT's apartment. One of the deputies knocked on the door to the apartment several times but received no answer. After contacting the watch commander about the situation, the officers received the go-ahead to forcibly enter the apartment.
Inside, the officers saw two bodies at the entryway of the apartment—a male on the ground floor and a female on the staircase. Deputies conducted a protective sweep of the apartment. The female on the staircase was not moving or making any sounds, so at first the deputies thought she might be deceased. After the sweep was conducted, one of the officers noticed the female was not deceased, spoke to her, and escorted her out of the apartment. The male victim was not breathing, was unresponsive, and had no pulse. Paramedics arrived and pronounced the male victim dead.
The apartment appeared to have been ransacked. The cushions from the couch had been flipped around, and there was trash all over the kitchen. Five spent .380-caliber Auto RP shell casings were recovered from the walkway in front of JT's front door. Another spent .380-caliber Auto RP shell casing was found inside the residence near a downstairs bathroom.
C. Events Immediately After the Robbery and Murder.
When Jones returned to the apartment around 1:00 a.m., there were Xboxes, DVDs and "all kind of stuff on the table." Martin and defendant were changing their clothes, cutting their hair, washing their hands, "acting suspicious," and "getting real secretive." About an hour later, Jones and Martin left and drove to Jones's apartment.
The next day, while Martin and defendant were at Jones's apartment, Jones overheard defendant say he had "shot the guy" and he "should have killed the girl too because she was the only one [who] could identify him." Defendant said they had robbed the victim, and he described the shooting, saying he fired "over her" and "into the bathroom." Defendant spoke "[w]ith no remorse" and was "very cold." His only regret was not killing the only witness. Martin and defendant were mad because they had been wrongly told that JT had $10,000. They were also worried that one of the men who took part in the robbery had left a fingerprint on a drawer, and that Martin may have left a shoeprint. Defendant discussed getting a good alibi from his older brother. Martin and defendant discussed the gun used in the shooting, a .380-caliber, and that they were going to dispose of it in Lake Perris.
D. Investigation.
Four .380-caliber bullets were collected from JT's body during a postmortem. All four bullets had identical markings left from the barrel of the gun. The five spent .380-caliber shell casings collected from JT's residence were all fired from the same gun. The handgun used to murder JT was never recovered. Two photographs of a gold-plated .380-caliber Bersa handgun were retrieved from defendant's phone. The photographs were taken within a week of the murder.
JT suffered six gunshot wounds: one gunshot to the upper left chest; one to his abdomen near the belly button; one to the pinky finger of his left hand; two bullets passed through his upper left arm and into his left armpit; and one bullet entered the back of JT's left thigh, exited, and entered and passed through his right thigh. One of the bullets that entered JT's left armpit passed through his heart and lungs, and the other passed through his lungs. Either of those bullet wounds could have been fatal. The bullet that entered JT's chest hit a rib and passed into his lung and, by itself, could have been fatal. JT also had lacerations to his left cheek and ear caused by blunt force injury. The lacerations were consistent with someone being pistol whipped. The cause of death was multiple gunshot wounds.
Defendant was eventually located in Los Angeles and was taken into custody. Defendant told investigators his name was Andre Robinson, and that he went by the street names "Tray" or "Stretch." Defendant said he had heard about a man who goes by the street name "Bam Bam," but he vehemently denied that he used that street name or that he used the name "Bam Deuce." The investigators never told defendant that someone identified him as Bam Deuce.
Defendant's brother is named Andre.
Defendant said he was at his sister's house in Palm Desert all day on the day of the murder, and he denied that he was at the apartment complex in Moreno Valley that weekend. Defendant denied having any current gang affiliations. Defendant had the letter "B" tattooed on his body, but he denied that it had anything to do with any "Bloods" gang. He had fresh tattoos for Black P Stone, but said he was "trying to get away from that bullshit." Defendant said he did not spend time in the apartments in Moreno Valley because they are "bad streets." Defendant said he did not know a JT. Defendant admitted he had previously been to the apartment complex on Carnation Lane to do a tattoo, and that people there know him as the "Tattoo Guy" or "Hits."
Defendant denied that he had anything to do with the murder or that he knew anything about it. Defendant said he had only seen the victim once when he had tattooed him. Defendant said his phone records would show he was in Palm Desert when the murder took place. The detectives did not tell defendant any of the details of the murder, yet defendant asked why they had not had someone pick him out of a lineup and say, "That's the guy right there that we saw walk up on this man [and] kill him?"
A historical cell site analysis of defendant's cellular phone records showed the phone was in the Palm Desert area on the morning of May 27, 2011. By the afternoon of that same day, defendant's phone was near the Banning airport and near the intersection of Interstate 10 and State Route 60. The phone then traveled west to Moreno Valley. It accessed cell towers near the apartment complex on Carnation Lane later that afternoon and during the early morning hours of May 28. A witness who knew defendant as "Tray" testified that he gave defendant a ride from Palm Desert to Moreno Valley on the afternoon of May 27. The witness dropped defendant off at the apartment complex on Carnation Lane.
After his arrest, defendant was recorded making a phone call from jail to a "Dreads." Defendant told Dreads he thought other members of the gang had snitched on him, and that one of the snitches had been given immunity. Defendant was also recorded talking to Martin while they were in a holding cell. Defendant told Martin one of the gang's members was in protective custody and had been "running his mouth." Martin said another gang member was "singing" too. Defendant said his defense would be that he "was where I told you to take me blood, in the first place . . . ."
E. Gang Expert Testimony.
A gang expert with the Los Angeles Police Department testified the primary purpose and objective of a gang is respect, which for gangs is synonymous with fear. A nongang member does not get a gang tattoo because they could suffer serious repercussions such as a "beat-down" or even being murdered. Gang members have to "put in work" to stay in good standing with their gang. Typically, this involves committing crimes for the gang. The more violent or publicized the crime, the more respected or feared the gang member will be within the gang and in the wider community. Gang members typically support themselves by generating revenue for the gang through robberies and theft.
The expert testified he had personally spoken with 300 to 400 members of the Black P Stones gang, which is one of the more active gangs in the southwest division. The expert testified that in May 2011, the Black P Stones had approximately 900 documented members in Los Angeles and its primary activities included murder, attempted murder, home invasion, robbery, weapons violations, possession of narcotics for sale, kidnapping, and rape. The Black P Stones are affiliated with the Bloods gang. Other allied Bloods gangs operating in the southwest division include the Bity Stones and Jungles.
Based on defendant's tattoos, photographs of him using gang hand signs, his recorded conversations, and graffiti painted on a backpack he had when he was arrested, the expert opined that defendant was a member of the Black P Stones gang. After being asked to consider a hypothetical in which three members of the Black P Stones gang enter a residence, pistol whip a victim, rob the residence, then leave, the expert opined such a robbery would have been committed for the benefit of the Black P Stones gang. When asked to assume the same hypothetical facts, but to add to those facts that the victim goes to a neighbor for help, the police are called, and a few minutes later one of the members of the Black P Stones gang, who had committed the robbery, returns to the victim's residence and shoots the victim five times and kills him, the expert opined the murder would have been committed for the benefit of the gang.
IV.
DISCUSSION
A. The Trial Court Correctly Denied Defendant's Motion to Bifurcate Trial on Gang Issues.
Defendant argues the trial court erred by denying his motion to bifurcate trial on the substantive gang offense, the gang special circumstance allegation, and the gang enhancement. The trial court lacked any general authority to bifurcate trial of the substantive count or the special circumstance allegation, and the court did not abuse its discretion by denying the request to bifurcate trial of the gang enhancement.
1. Additional Background.
Defendant moved in limine for "an order bifurcating the trial on the gang enhancement, gang crime, and gang special circumstance allegation from the trial on the other substantive offenses." Defendant argued the gang evidence "bears no relevance" to or was "only tangentially related" to the nongang substantive charges, and admission of the gang evidence during trial of the nongang charges would "only serve to prejudice the jury against [him]." The motion did not suggest severance as an alternative remedy.
In its opposition, the prosecution argued the gang evidence in this case "is inextricably intertwined with the charged offenses and allegations." According to the prosecution, the gang evidence was relevant to prove identity, motive, intent, opportunity, and common plan or scheme. In addition, the prosecution argued the gang evidence was relevant to explain "the fear witnesses had of cooperating in the investigation and testifying at trial," and it "show[ed] the unique relationship gang members have when committing crimes together, especially as it relates to aiding and abetting." In sum, the prosecution argued bifurcation would "give the jury a wholly incomplete picture of the crime and deprive the People's case of its persuasiveness and strength, not to mention its fundamental ability to prove the charges and allegations beyond a reasonable doubt."
During the hearing on in limine motions, defendant's attorney submitted on the motion to bifurcate and presented no additional argument. The trial court concluded bifurcating trial of the gang charge and allegations would result in "undue consumption of time." In addition, the court agreed with the prosecution that "this case is inextricably intertwined within the issues of the gang evidence." The court specifically mentioned the gang evidence was relevant to proving defendant's motive. Although the court recognized the potential for prejudice, the court expressly ruled the gang evidence was more probative than prejudicial. Finally, the court agreed with the prosecution that the jury should be permitted "to consider the totality of the circumstances of the crime." Therefore, the trial court denied the motion.
2. The Trial Court Had No Authority to Bifurcate Trial of Substantive Offenses.
As the People contend, defendant's discussion of bifurcation in the context of the substantive gang offense is misplaced. When discussing a substantive offense, the relevant concept is severance. (See People v. Burnell (2005) 132 Cal.App.4th 938, 946, fn. 5 ["defendant confuses 'severance' of a substantive count with 'bifurcation' of an enhancement"].) "Although there is much overlap in the rules governing severance and bifurcation, the laws and purposes regarding each are somewhat distinct. [Citation.]" (People v. Pettie (2017) 16 Cal.App.5th 23, 42 (Pettie).)
"'"Bifurcation" of a jury trial . . . means that different issues in a case will be tried seriatim by the same jury with the jury returning separate verdicts as to the issues bifurcated. There is but one trial.'" (People v. Givan (1992) 4 Cal.App.4th 1107, 1114 (Givan); accord, People v. Harris (1992) 8 Cal.App.4th 104, 108.) Our Supreme Court has concluded the "[g]eneral authority to bifurcate trial issues may be found . . . in section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial: 'It shall be the duty of the judge to control all proceedings during the trial . . . with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.' [Citation.]" (People v. Calderon (1994) 9 Cal.4th 69, 74-75 (Calderon).)
In contrast, "severance" means that substantive offenses "'have been split off to be tried separately by different juries.' [Citation.]" (Givan, supra, 4 Cal.App.4th at p. 1114.) Unlike bifurcation, which has to do with the trial court's control of the proceedings, severance is inextricably bound to the rules of pleading, joinder, and consolidation of offenses and/or defendants. (See generally Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar. 2017) § 7.27 et seq.)
"Section 954 governs the joinder of multiple charges in a single accusatory pleading. 'An accusatory pleading may charge two or more different offenses connected together in their commission . . . or two or more different offenses of the same class of crimes or offenses . . . .' (§ 954.) However, the trial court 'in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately.' (Ibid.) 'When . . . the statutory requirements for joinder are met, a defendant must make a clear showing of prejudice to establish that the trial court abused its discretion in denying the defendant's severance motion. [Citations.] In determining whether there was an abuse of discretion, we examine the record before the trial court at the time of its ruling. [Citation.] The factors to be considered are these: (1) the cross-admissibility of the evidence in separate trials; (2) whether some of the charges are likely to unusually inflame the jury against the defendant; (3) whether a weak case has been joined with a strong case or another weak case so that the total evidence may alter the outcome of some or all of the charges; and (4) whether one of the charges is a capital offense, or the joinder of the charges converts the matter into a capital case.' [Citation.] 'Even if a trial court's severance or joinder ruling is correct at the time it was made, a reviewing court must reverse the judgment if the "defendant shows that joinder actually resulted in 'gross unfairness' amounting to a denial of due process." [Citations.]'" (Pettie, supra, 16 Cal.App.5th at p. 42.)
As explained further, post, the trial court is authorized to bifurcate trial of certain factual issues in a gang case to avoid prejudice to the defendant. However, our research has disclosed no case supporting the proposition that trial may be bifurcated with respect to substantive offenses, and defendant has cited none to us. To avoid the fundamental question of whether a court has the authority to bifurcate trial of substantive offenses, defendant argues the general authority to bifurcate issues means the trial court is not precluded from bifurcating trial of the gang issues related to a substantive gang offense. But whereas in theory trial of the gang issues for a criminal street gang enhancement can be cleanly and surgically bifurcated from the factual issues to be decided by a jury about nongang substantive offenses, gang issues are the sine qua non of a substantive offense of active participation in a criminal street gang. (§ 186.22, subd. (a).) In other words, if you bifurcate trial on the gang issues related to the substantive offense, you have in effect bifurcated trial on the offense itself, which brings us full circle to the question of whether the trial court even has the authority to bifurcate trial of substantive offenses.
That provision reads in full: "Any person who actively participates in any criminal street gang with knowledge that its members engage in, or have engaged in, a pattern of criminal gang activity, and who willfully promotes, furthers, or assists in any felonious criminal conduct by members of that gang, shall be punished by imprisonment in a county jail for a period not to exceed one year, or by imprisonment in the state prison for 16 months, or two or three years." (§ 186.22, subd. (a).)
Relying on People v. Cleveland (2004) 32 Cal.4th 704 and People v. Fletcher (1996) 13 Cal.4th 451, defendant contends "[t]he fact that severance is an available option does not mean that bifurcation is not permitted." In those decisions, our Supreme Court blessed the limited practice in capital cases of bifurcating the penalty phases for multiple defendants before the same jury when one defendant makes incriminating statements against a codefendant. (Cleveland, at pp. 757-760; Fletcher, at p. 468, fn. 5.) We are not faced with the same "unusual circumstances" in this case (Cleveland, at p. 758), and those decisions provide no support for the general proposition that a trial court may bifurcate trial of a substantive offense.
Although our Supreme Court has not expressly addressed whether a trial court has the general authority to bifurcate trial of a substantive offense, we have serious doubt whether the court would endorse such a practice. (See People v. Sapp (2003) 31 Cal.4th 240, 262 [holding the trial court lacked discretion to bifurcate trial of a substantive offense that required proof of a prior conviction].) Because defendant cannot establish the trial court had the power to bifurcate trial of the substantive gang offense in the first place, he simply cannot establish that denial of his bifurcation motion was erroneous.
In its brief, the People argue that, on the facts of this case, the trial court properly declined to sever trial of the substantive gang offense. But defendant did not move in the alternative to sever trial of the substantive gang offense, and on appeal he does not argue that failure to sever was in error. We must presume the judgment is correct, and defendant bears the burden of affirmatively demonstrating reversible error. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) In the absence of such a showing here, we must assume the substantive gang offense was properly joined to the nongang offenses, and that a severance motion, had defendant actually presented one, should have been denied.
3. The Trial Court Had No Authority to Bifurcate Trial on Special Circumstance Allegations.
Defendant also argues the trial court erred by not bifurcating trial of the gang special circumstance allegation. But other than discuss the general concepts of bifurcation, and cases addressing admissibility of prejudicial gang evidence in general, defendant does not address the basic question of whether a trial court has any authority whatsoever to bifurcate trial of a gang special circumstance allegation from the substantive murder offense. We conclude none exists.
First degree murder is punishable by death or LWOP if the jury finds true one or more "special circumstances." (§ 190.2, subd. (a); see §§ 187, 189, 190, subd. (a).) As relevant here, first degree murder is punishable by death or LWOP if "[t]he defendant intentionally killed the victim while the defendant was an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22, and the murder was carried out to further the activities of the criminal street gang." (§ 190.2, subd. (a)(22).) "The statutory scheme plainly contemplates that, except where the special circumstance alleged is that of a prior murder, the same jury which determines guilt shall also at the same time determine the truth of the special circumstance allegation: 'The question of the defendant's guilt shall first be determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . except . . . where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.' (§ 190.1, subd. (a), italics added.)" (People v. Fierro (1991) 1 Cal.4th 173, 229 (Fierro); see People v. Sivongxxay (2017) 3 Cal.5th 151, 171 ["With the exception of a prior-murder special circumstance allegation (§ 190.2, subd. (a)(2)), which requires a separate proceeding, '[i]f the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . .' (§ 190.1, subd. (a).)"].)
Our Supreme Court has held that, if the jury in the guilt phase of a capital case hears evidence of such a "'highly prejudicial'" nature "that the jury's ability to render a fair and impartial verdict on the special circumstance allegation would be impaired," the trial court may consider conducting a separate trial on the special circumstance allegations. (Fierro, supra, 1 Cal.4th at p. 229, quoting People v. Bigelow (1984) 37 Cal.3d 731, 748.) In addition, the trial court may, "for good cause shown," discharge the jury that decided guilt and empanel a new jury to determine the truth of a special circumstance allegation in the same trial. (§ 190.4, subd. (c); see Fierro, at p. 230.)
We have found no authority whatsoever that stands for the proposition that a trial court may simply bifurcate trial of a special circumstance allegation from the substantive murder offense in the same trial before the same jury, and defendant has cited none to us. Nor have we found any authority which suggests, in dicta or otherwise, the trial court might have such authority. Therefore, we must conclude the trial court correctly denied defendant's motion to bifurcate trial of the gang special circumstance allegation.
4. The Trial Court Properly Denied Defendant's Request to Bifurcate Trial of the Gang Enhancements.
Finally, although the trial court did have authority to bifurcate trial on the gang enhancements, denial of bifurcation in this case was correct.
In People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez), our Supreme Court addressed the ability of the trial court to bifurcate trial of a gang enhancement. "In Calderon, supra, 9 Cal.4th 69, we held 'that a trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant's guilt of the charged offense . . . .' (Id. at p. 72.)" (Hernandez, at p. 1048.) "In Calderon we emphasized the unique prejudice that may ensue if the jury that determines guilt also learns of the defendant's status as a person with one or more prior convictions. 'In fact, the value of bifurcating the determination of the truth of a prior conviction allegation from the determination of guilt of the charged offense has been widely recognized.' (Calderon, supra, 9 Cal.4th at pp. 75-76; see id. at pp. 76-77 [citing the American Bar Association's Standards for Criminal Justice, various decisions and statutes around the country, and the Model Penal Code].) A gang enhancement is different from the prior conviction at issue in Calderon. A prior conviction allegation relates to the defendant's status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]" (Hernandez, at p. 1048.)
In Hernandez, the court noted the Legislature had expressed its concern about the prejudice a defendant may experience when evidence of his or her prior conviction is introduced at trial. "The Legislature itself has specifically recognized the potential for prejudice when a jury deciding guilt hears of a prior conviction. It has provided that if the defendant admits the prior conviction, 'the charge of the prior conviction shall neither be read to the jury nor alluded to during trial, except as otherwise provided by law.' (§ 1025, subd. (e); see Calderon, supra, 9 Cal.4th at p. 73.) Although no statute specifically requires bifurcation when the defendant does not admit the conviction, section 1025 shows the Legislature is concerned with the problem of prejudice when a jury learns of a prior conviction." (Hernandez, supra, 33 Cal.4th at p. 1049.) In contrast, "the Legislature has given no indication of a similar concern regarding enhancements related to the charged offense, such as a street gang enhancement. Nothing in section 186.22 suggests the street gang enhancement should receive special treatment of the kind given prior convictions. [Citations.]" (Hernandez, at p. 1049.)
Nonetheless, the court concluded the trial court has discretion to bifurcate trial of a gang enhancement, especially when the gang evidence has little to do with the substantive offenses or when it is especially prejudicial. "The authorization we found in Calderon, supra, 9 Cal.4th 69, for bifurcation of a prior conviction allegation also permits bifurcation of the gang enhancement. The predicate offenses offered to establish a 'pattern of criminal gang activity' (§ 186.22, subd. (e)) need not be related to the crime, or even the defendant, and evidence of such offenses may be unduly prejudicial, thus warranting bifurcation. Moreover, some of the other gang evidence, even as it relates to the defendant, may be so extraordinarily prejudicial, and of so little relevance to guilt, that it threatens to sway the jury to convict regardless of the defendant's actual guilt." (Hernandez, supra, 33 Cal.4th at p. 1049.)
"But," the court noted, "evidence of gang membership is often relevant to, and admissible regarding, the charged offense. Evidence of the defendant's gang affiliation—including evidence of the gang's territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like—can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime. [Citations.] To the extent the evidence supporting the gang enhancement would be admissible at a trial of guilt, any inference of prejudice would be dispelled, and bifurcation would not be necessary. [Citation.]" (Hernandez, supra, 33 Cal.4th at pp. 1049-1050, italics added.)
As already noted, ante, defendant did not move the trial court in the alternative to sever the substantive gang offense. And on appeal, defendant eschews any claim that the trial court should have severed trial of the substantive gang offense and, instead, tenaciously argues that the trial court had the authority to bifurcate trial on the gang offense and abused its discretion by not doing so. Therefore, we have declined to treat defendant's motion to bifurcate the substantive gang offense as a request to sever it. Because we have already concluded the substantive gang offense was properly joined to the nongang offenses, and a motion to sever would have been properly denied (see, ante, fn. 10), we must likewise conclude the trial court properly denied the motion to bifurcate trial on the gang enhancement. Gang evidence was already cross-admissible to prove the substantive offenses including the properly joined substantive gang offense, so defendant simply cannot show a bifurcated trial of the gang enhancement was necessary to prevent prejudice from the introduction of gang evidence. (Hernandez, supra, 33 Cal.4th at pp. 1049-1050; see Pettie, supra, 16 Cal.App.5th at p. 45 ["Given that [a substantive gang offense] was properly joined with [nongang offenses], defendants cannot show cause for bifurcation of the gang-related enhancements."].)
Although the trial court gave a different reason for denying defendant's bifurcation motion, we may affirm the order if it is correct on any theory. (People v. Brooks (2017) 3 Cal.5th 1, 39.) This is not to suggest the reason given by the trial court is not equally correct, merely that on the facts of this case we need not reach it.
B. The Trial Court Did Not Abuse Its Discretion by Admitting Photographs of a Handgun Retrieved from Defendant's Phone.
Defendant contends the trial court erred by admitting two photographs of a .380-caliber handgun retrieved from his phone. According to defendant, the evidence was not relevant because the handgun used in the murder was never recovered and the gun depicted in the photographs did not exactly match the description of the gun used during the murder. In addition, defendant argues the trial court should have excluded the photographs under Evidence Code section 352 because their probative value was substantially outweighed by their prejudicial impact. We find no abuse of discretion.
1. Additional Background.
Before trial, defendant moved in limine to exclude from evidence photographs taken from his phone. Defendant argued two photographs of a handgun were not relevant to the issues in this case because "[t]he handgun depicted in the photographs is gold plated with a black grip," yet "[t]he only witness that described the handgun allegedly possessed and used by the Defendant described it as having a pearl or white handle." Defendant also argued there was no evidence he ever possessed the gun depicted in the photographs or that he actually took the photographs. Finally, defendant argued any relevance the photographs might have would be substantially outweighed by their prejudicial impact. According to defendant, "Permitting the prosecution to produce a photograph of a handgun extracted from the Defendant's phone would be analogous to permitting the prosecution to use impermissible character evidence against the Defendant."
We assume the description of the handle mentioned in defendant's motion came from the police reports or testimony during the preliminary examination because during the trial itself, Williams was not asked to describe the handgun she saw defendant use to shoot JT.
In its opposition, the prosecutor conceded the handgun depicted in the photographs differed in some respects from the eyewitness's description of the gun used by defendant to shoot JT, and the photographs do not depict defendant actually holding the gun. However, the prosecutor argued the photographs were relevant. "[C]onsidering the caliber of the firearm in the photo[s], as well as the fact that the firearm used in the murder was never recovered, jurors should be allowed to view the photograph[s] of the gun taken from defendant's phone and place on [them] whatever weight they deem appropriate."
During the hearing on defendant's motion in limine, the prosecutor argued the photographs of a .380-caliber handgun were relevant and admissible because the shell casings and bullets recovered in this case were of the same caliber and the gun used in the murder was never recovered. Defense counsel argued there was no foundation that the gold-plated gun depicted in the photographs was in fact the gun used in the crimes. To the contrary, Williams and Jones both described a silver gun. (See, ante, fn. 12.) The prosecutor responded that "witnesses sometimes get descriptions wrong," and the discrepancies between the gun depicted in the photographs and the gun described by the witnesses would go to weight and not to admissibility.
The trial court agreed with the prosecutor that discrepancies between the photographs and the witness testimony went to the weight to be given the evidence and not to its admissibility. "You have the same caliber shell casings that would belong to this particular gun. Certainly we all know that it's not unusual for witnesses to be somewhat inconsistent, especially when it comes to a firearm because of the fear that it might elicit." The court noted the discrepancies were "fodder for cross-examination and whether or not the jury is to believe this is the gun or not." The court found the evidence was relevant and concluded it was more probative than prejudicial. "Certainly not time-consuming. Only a couple of photographs. And certainly is not confusing for the jury. It will be for [the jury] to decide whether or not and what, if any, relevance in their assessment of the case this has."
2. Applicable Law.
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.)
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' The 'prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying Evidence Code section 352, 'prejudicial' is not synonymous with 'damaging.'"' [Citation.]" (People v. Nguyen (2015) 61 Cal.4th 1015, 1035 (Nguyen).)
"'A trial court has "considerable discretion" in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects. [Citation.] An appellate court reviews a court's rulings regarding relevancy and admissibility under Evidence Code section 352 for abuse of discretion. [Citation.] We will not reverse a court's ruling on such matters unless it is shown "'the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citations.]"'" (People v. Jones (2017) 3 Cal.5th 583, 609.)
3. The Trial Court Properly Admitted the Photographs.
Defendant argues evidence that he possessed a weapon not used in the charged crimes is inadmissible. True enough, "When the prosecution relies on evidence regarding a specific type of weapon, it is error to admit evidence that other weapons were found in the defendant's possession, for such evidence tends to show not that he committed the crime, but only that he is the sort of person who carries deadly weapons. [Citations.]" (People v. Barnwell (2007) 41 Cal.4th 1038, 1056.) But there was no evidence in this case that the gun depicted in the photographs taken from defendant's phone was not the murder weapon. Instead, the photographs were admitted into evidence because the gun depicted in them matched the caliber and general description of the gun defendant used to shoot JT and, therefore, the gun in the photographs might have been the murder weapon that was never recovered. That was a proper basis for admitting the photographs. (See People v. Champion (1995) 9 Cal.4th 879, 924, overruled on another ground in People v. Combs (2004) 34 Cal.4th 821, 860 [photographs of both defendants with type of gun used in killing one of the victims were "obviously relevant"]; People v. Sassounian (1986) 182 Cal.App.3d 361, 401-402 [admission of photographs of defendant with weapons resembling weapons used in the case as well as with other weapons was not an abuse of discretion when photographs were probative of witness's testimony supporting special circumstance].)
As the People state in their brief, the photographs are relevant because they tended to show defendant had access to and possessed the same type of weapon used in the murder. All of the shell casings and projectiles recovered in this case were .380-caliber and all were fired from the same gun. The morning after the murder, Jones overheard defendant and Martin discussing the robbery and murder. Defendant specifically mentioned that the gun used was a .380-caliber and that they were going to dispose of it in Lake Perris. The photographs retrieved from defendant's phone depicted a .380-caliber Bersa handgun, and the photographs were taken within a week of the murder. Questions about whether defendant took the photographs himself, whether they were actually taken using his phone, etc., were proper subjects for cross-examination and went to the weight to be given the evidence. (See People v. Landry (2016) 2 Cal.5th 52, 87-88 [fact that conflicting inferences can be drawn about a document's authenticity goes to its weight and not its admissibility].) But clearly, the photographs were relevant evidence.
Nor was the probative value of the photographs outweighed by their prejudicial impact. Like all relevant evidence of guilt, the photographs were harmful and damaging to the defense. (Nguyen, supra, 61 Cal.4th at p. 1035.) But defendant has not shown the evidence was especially prejudicial in that it would have inflamed the jury against him and caused it to find defendant guilty regardless of the strength of the evidence. The photographs of the gun were just two out of many photographs retrieved from defendant's phone that were admitted into evidence.
And the photographs were hardly the strongest evidence of guilt in this case. The testimony in this case established beyond a reasonable doubt that: (1) days before the robbery and murder, defendant and a fellow member of the Black P Stones discussed robbing a man who they had been told had $10,000; (2) on the day of the murder, defendant was overheard saying he was going to get a "strap" to shoot someone during a confrontation, and defendant was actually seen handling a gun; (3) on the evening of the robbery and murder, defendant and two other men were seen taking television sets and other items from JT's residence, placing them into an SUV, and driving away; (4) after JT went to a neighbor's house for assistance and returned home, defendant walked up to JT, fired his gun at JT until he was out of bullets, said "fuck you," and walked away; (5) soon after the murder, defendant and his fellow robbers were seen changing clothes, washing their hands, and cutting their hair; (6) the next morning defendant and Martin were overheard discussing the robbery and the murder, including such details as the caliber of the gun, that they planned to dispose of it, and that defendant regretted not killing the only witness who saw him shoot JT; (7) when arrested, defendant claimed to be in Palm Desert during the robbery and murder, which was disproved by his own cell phone records and by the testimony of a witness who drove defendant to Moreno Valley from Palm Desert earlier on the day of the robbery and murder; and (8) during recorded conversations while he was in custody, defendant discussed who had snitched on him and that his defense was that he was not in town during the robbery and murder. Compared to the other evidence of guilt, especially the eyewitness testimony about the shooting itself, the photographs were only mildly prejudicial, if at all. Therefore, the trial court properly declined to exclude the photographs under Evidence Code section 352.
Even if we were to conclude the photographs should have been excluded under Evidence Code section 352, the overwhelming evidence of guilt we have just recited would lead us to conclude the error was harmless.
C. The Trial Court Properly Instructed the Jury with CALCRIM No. 315 on How to Evaluate Eyewitness Identifications, Including Instructing That One Factor to Consider Is How Certain the Witnesses Were of Their Identification.
Defendant argues the trial court erred in how it instructed the jury on how to evaluate eyewitness identification. The trial court gave the jury CALCRIM No. 315, which read in part: "You have heard eyewitness testimony identifying the defendant. As with any other witness, you must decide whether or not a witness gave truthful and accurate testimony." The instruction listed 15 factors the jury could consider, including, "How certain was the witness when he or she made an identification?" That is the only factor defendant challenges, and he argues the trial court erred by not excising it from the standard instruction.
According to defendant, reams of scientific studies have called into question the validity of "certainty" as a predictor of the accuracy of an eyewitness identification. But defendant never asked the trial court to modify the instruction. In fact, he interposed no objection whatsoever when the trial court proposed instructing the jury with CALCRIM No. 315 on how to evaluate an eyewitness identification. Therefore, defendant forfeited his claim of instructional error. "If defendant had wanted the court to modify the instruction, he should have requested it. The trial court has no sua sponte duty to do so. [Citations.]" (People v. Sánchez (2016) 63 Cal.4th 411, 461 (Sánchez); accord, People v. Ward (2005) 36 Cal.4th 186, 213-214; People v. Sullivan (2007) 151 Cal.App.4th 524, 561.)
Even if we were to conclude defendant has not forfeited his claim of error, we would be duty bound to reject it. Our Supreme Court recently rejected a similar challenge to the "certainty" factor as it was used in CALJIC No. 2.92, the precursor to CALCRIM No. 315. "Studies concluding there is, at best, a weak correlation between witness certainty and accuracy are nothing new. We cited some of them three decades ago to support our holding that the trial court has discretion to admit expert testimony regarding the reliability of eyewitness identification. (People v. McDonald (1984) 37 Cal.3d 351, 369.) In People v. Wright (1988) 45 Cal.3d 1126 . . . , we held 'that a proper instruction on eyewitness identification factors should focus the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.' We specifically approved CALJIC No. 2.92, including its certainty factor. (Wright, at pp. 1144, 1166 [appendix].) We have since reiterated the propriety of including this factor. (People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232 . . . .)" (Sánchez, supra, 63 Cal.4th at p. 462.)
CALJIC No. 2.92 asked jurors to consider "'the extent to which the witness is either certain or uncertain of the identification.'" (See Sánchez, supra, 63 Cal.4th at p. 461 & fn. 7.)
Until our Supreme Court revisits the validity of "certainty" as one of many factors a jury may consider when evaluating eyewitness identifications, we are bound to follow its decisions holding that factor is properly included in the standard jury instruction. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
D. Defendant Suffered No Prejudice from the Trial Court Instructing the Jury That Evidence of Flight May Be Considered Evidence of Guilt.
Last, defendant argues the trial court erred prejudicially by instructing the jury it could consider defendant's flight as evidence of guilt because "there was no evidence of flight by [defendant] as distinguished by the perpetrators of the offenses." Defendant did not object to that instruction on any specific ground in the trial court. Instead, his attorney told the court he would "just make a general objection to it." Despite such a nonspecific objection, "[c]hallenges to the flight instruction given pursuant to section 1127c are cognizable on appeal even in the absence of a contemporaneous objection. [Citations.]" (People v. Rogers (2013) 57 Cal.4th 296, 332, fn. 5; see § 1259.) In any event, even if we were to assume the trial court should not have given the instruction, defendant was not prejudiced by it.
The trial court instructed the jury with a modified 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 the defendant fled cannot prove guilt by itself." "A flight instruction is proper where the evidence shows a defendant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. [Citations.]" (People v. McWhorter (2009) 47 Cal.4th 318, 376.) "The evidentiary basis for [a] flight instruction requires sufficient, not uncontradicted, evidence. [Citation.] Moreover, section 1127c 'makes mandatory the giving of an instruction on flight where evidence of a defendant's flight is relied upon as tending to show guilt, and the giving of such an instruction in appropriate cases repeatedly has been approved.' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1020.)
Section 1127c 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." --------
We need not address defendant's claim that there was insufficient evidence he fled the scene of the crime independent from evidence identifying him as one of the perpetrators. Even if we were to conclude the trial court erred by giving the flight instruction, the error is reversible only if we also were to conclude it resulted in a miscarriage of justice, meaning it is reasonably probable defendant would have fared better absent the error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836; People v. Moye (2009) 47 Cal.4th 537, 555-556.) We find any error was harmless for three reasons.
First, as the People point out in their brief, the prosecutor did not, ultimately, rely on defendant's flight as evidence of guilt during closing arguments, and he did not mention the instruction. It was defense counsel who addressed the instruction during closing arguments, and he attempted to use it to defendant's advantage by suggesting Jones was involved in the crime and arguing she was not a believable witness because she fled to Las Vegas with Martin soon after the murder.
Second, the instruction permissively informed the jury that "if" it concluded defendant fled after committing the crimes, (1) evidence of flight "may" be considered evidence of guilt, (2) the jury was to decide for itself "the meaning and importance" of defendant's flight, and (3) "by itself" flight was not enough to prove guilt. Such a "cautionary instruction . . . benefitted the defense by 'admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory.' [Citation.]" (People v. Streeter (2012) 54 Cal.4th 205, 254.)
Finally, the trial court properly instructed the jury with CALCRIM No. 200, which provided in relevant part: "Some of the instructions may not apply depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I'm suggesting anything about the facts. After you've decided what the facts are, follow the instructions that do apply to the facts as you find them." We must presume the jury understood and properly applied that instruction. (People v. Chism (2014) 58 Cal.4th 1266, 1299 [jury presumed to have followed instruction to disregard inapplicable instructions]; People v. Scott (1988) 200 Cal.App.3d 1090, 1095 [same].) If the jury concluded defendant did not flee, "they would have disregarded the flight instruction as they were . . . instructed. [Citations.]" (People v. Richardson, supra, 43 Cal.4th at p. 1020.) And the fact the jury was instructed to disregard inapplicable instructions mitigated against any prejudice that might have arisen from the trial court incorrectly giving a flight instruction. (People v. Saddler (1979) 24 Cal.3d 671, 684; People v. Vega (2015) 236 Cal.App.4th 484, 503; People v. Lamer (2003) 110 Cal.App.4th 1463, 1472.)
V.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.