Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 08WF0770 Richard W. Stanford, Jr., Judge.
Marta I. Stanton under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorneys General, for Plaintiff and Respondent.
Before Sills, P.J., Moore, J., and Aronson, J.
Defendant appeals his conviction for assaulting his estranged wife Myeshia with a deadly weapon, his car. Angry at her for filing divorce papers, and for refusing to tell him where she and their children currently resided, defendant followed her into a workplace parking lot, and twice rammed his car into the back of hers.
On appeal defendant makes numerous contentions. He complains his rights to due process and a fair trial were violated because the jury was instructed with Judicial Council of California Criminal Jury Instructions (2009–2010) CALRIM No. 372 (Flight), which lowered the burden of proof, and because the instruction was unsupported by sufficient evidence. He further contends his trial counsel rendered him ineffective assistance by failing to request the jury be instructed with CALCRIM No. 316 regarding the limited use of his prior convictions. Lastly, he argues that cumulative error rendered his trial fundamentally unfair, and deprived him of his right to due process.
We find no merit in his contentions and affirm the judgment.
I
Facts and Proceedings
In December 2008, the jury found defendant guilty of assault with a deadly weapon. In a separate proceeding, the court found he suffered a prior serious felony, and a prior prison term. In February 2009, he was sentenced to state prison as a second strike defendant for an aggregate term of 10 years.
Facts
Defendant and his wife Myeshia, with whom he had two young children, were estranged. They separated in August 2007, and were living separately. Sometimes they got along, and most of the time they did not.
In February 2008, Myeshia moved to a new residence with the children. She did not give defendant their new address because of previous problems she had encountered with him. However, she continued to allow him to visit with the children at other locations. In March 2008, Myeshia told him she was filing for divorce and he became upset.
The Assault on April 16, 2008
In the morning of April 16, 2008, defendant called Myeshia on her cell phone while she was dropping off the children at their babysitter on her way to work. He told her he was upset about living in his car; that she would not divulge to him where the family was currently living; and because she had not answered his phone calls from the night before.
Myeshia dropped off the children at their babysitter, and continued on her way to work, while remaining on the phone with defendant. He complained that everyone was treating him like a “dog.” When Myeshia told him he was no longer her responsibility, and did not want to talk about it anymore, defendant became really angry and threatened to ‘“fuck [her] up at her workplace.’” Because defendant had not followed through on previous threats he had made against her, Myeshia did not believe he would do anything and she hung up the phone.
She became frightened however, when defendant called her back and told her, ‘“You dumb ass. You’re so stupid you don’t even realize I am behind you.”’ He pulled alongside her vehicle while she was stopped at a traffic light near her workplace. He then hung up his phone, and gestured for her to “watch” what he was about to do, as he followed her into her workplace parking lot.
As Myeshia drove into the parking lot, defendant rammed her vehicle from behind, and caused her car to move forward. As she continued to drive forward, defendant rammed her vehicle once again, this time causing her to hit the car in front of her. Myeshia pulled her car near to the entrance of her office building, jumped out of her car, and ran screaming for bystanders to call 9-1-1.
Defendant got out of his car and started to walk towards Myeshia’s car. Witness Linda Barfoot, who had heard the first impact, and who had observed the second impact, stood near Myeshia’s car. When the driver of the third car, or the car Myeshia had just hit told Barfoot that his car had been hit also, defendant turned around and walked back to his vehicle. Barfoot yelled to defendant, “You better not leave; I’ve got your license plate.” Defendant did not stop. He got into his car and drove away.
Myeshia’s car sustained damage to the trunk, and along both sides of the rear bumper. After defendant left the scene, he left Myeshia a voice mail which said, “That bullshit dent in your car ain’t shit.” At the direction of the police, Myeshia sent defendant a text message telling him what police station he should turn himself into.
Defendant testified in his own behalf at trial. He said he hit Myeshia’s car by accident. He claimed that when he hit her vehicle the first time, he barely tapped her car because he was traveling less than one mile per hour after having lifted his foot off the brake after stopping. He said Myeshia caused the second impact because she stopped suddenly in front of him. Because of faulty brakes on his vehicle and because of his deformed little toe, he was unable to brake in time to avoid hitting her car.
II
Discussion
A. Instructional Error
The Court Properly Instructed the Jury with CALCRIM No. 372
Defendant contends the trial court improperly instructed the jury with a flight instruction pursuant to CALCRIM No. 372. Defendant contends the instruction should not have been given because it was unconstitutional, i.e., it lowered the burden of proof, and because it was unsupported by sufficient evidence. We disagree.
CALCRIM No. 372, the instruction on “Defendant’s Flight” states: “If the defendant fled immediately after the crime was committed that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
The general rule in a criminal case is that the trial court must instruct on the “principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty ‘to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.’ [Citation.]” (People v. Saddler (1979) 24 Cal.3d 671, 681.)
Thus, when a defendant raises claims of instructional error, “‘we must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys. The test is whether there is a reasonable likelihood that the jury understood the instruction in a manner that violated the defendant’s rights.’ [Citation.] We determine the correctness of the jury instructions from the entire charge of the court, not from considering only parts of an instruction or one particular instruction. [Citation.] The absence of an essential element from one instruction may be cured by another instruction or the instructions taken as a whole. [Citation.] Further, in examining the entire charge we assume that jurors are ‘““‘intelligent persons and capable of understanding and correlating all jury instructions which are given”””” (People v. Smith (2008) 168 Cal.App.4th 7, 13.) When a claim is made which contends that an instruction has violated a defendant’s federal due process rights, the United States Supreme Court applies these same standards. (Estelle v. McGuire (1991) 502 U.S. 62, 72, People v. Smith, supra, 168 Cal.App.4th at pp. 13-14.)
CALCRIM No. 372 Did Not Violate Defendant’s Constitutional Rights
Defendant argues that CALCRIM No. 372 violated his due process and jury trial rights. We disagree. His argument fails because he attempts to distort the overall meaning of this instruction.
For example, he argues the phrase “after the crime was committed” undermines the presumption of innocence and his right to a jury verdict, because it lowers the burden of proof, and tells the jury that a crime was committed. Moreover, he reasons that the conditional term “if” as used in the instruction, applies only to the fact of flight, and the permissive term “may” applies only to the inference to be drawn from the fact, but that neither term applies to the “glaring assertion” that “the crime was committed.”
People v. Paysinger (2009) 174 Cal.App.4th 26, 31, rejects all of the contentions now raised by defendant. In Paysinger,the court was also asked to address whether the wording of CALCRIM No. 372 made it “... reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant’s guilt beyond a reasonable doubt [Citation.]” (Paysinger at p. 30.) The court ultimately concluded that “[e]ven viewing the instruction in isolation, the word ‘if’ in the operative clause – ‘If the defendant fled or tried to flee immediately after the crime was committed’ – does not logically modify only the phrase ‘the defendant fled or tried to flee,’ as defendant contends. Rather, ‘if’ modifies the entire phrase, including the words ‘after the crime was committed.’ Thus, it is highly unlikely a reasonable juror would have understood the instruction as dictating that ‘the crime was committed.’ [Citation.]” (Ibid.)
Defendant also contends the instruction is unconstitutional because it fails to explain how other standard instructions given to the jury “support its [the court’s] conclusion regarding how a jury would interpret CALCRIM No. 372, [or that a] “reasonable jury could have been misled by the flight instruction.”
This argument too was struck down by the court in Paysinger. The jury here, like the one in Paysinger, was also instructed with CALCRIM No. 200; CALCRIM Nos. 220, 222, and 224. These instructions told the jury: (1) ‘“you must decide what the facts are’; (2) ‘It is up to all of you and you alone to decide what happened’; (3) ‘A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt []’; and (4) ‘Remember that you may not convict a defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant’s guilt [] of that crime has been proved beyond a reasonable doubt.”’ (Paysinger, supra, 174 Cal.App.4th at p. 30.)
Because the jury was instructed with a full panoply of instructions, we conclude, as did the court in Paysinger, that it is highly unlikely a reasonable juror would have “... understood the instruction as dictating that ‘the crime was committed.’ [Citation.]” (Ibid.)
Defendant makes the further argument that CALCRIM No. 372 is unconstitutional because its language varies from the wording found in Penal Code section 1127(c), and because the instruction strongly suggests that flight alone is sufficient to show guilt, or that the jury may use evidence of flight to prove guilt.
Penal Code section 1127 (c) provides: 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.”
Again, Paysinger, supra 171 Cal.App.4th at pp. 31-32 proves instructive. In rejecting the same claim, the court advised: “In reviewing an instruction for constitutionality, we do not view it in isolation from the other instructions the court gave and we certainly do not view one part of an instruction in isolation from another part.” (Ibid.) Moreover in conclusion, the court advises the final sentence of the instruction specifically tells the jury “evidence that the defendant fled cannot prove guilt by itself.”
And, to the extent that defendant argues the instruction is unconstitutional because it presumes a crime has been committed, we also refer to Paysinger, which states: “It has long been accepted that if flight is significant at all, it is significant because it may reflect consciousness of guilt, which in turn tends to support a finding of guilt. [Citation.]... That CALCRIM No. 372 tells the jury this does not in any way make the instruction unconstitutional.” (Paysinger, supra, 171 Cal.App.4th at pp 31-32.)
Lastly, defendant urges us not to follow the ruling in Paysinger because it was wrongly decided. We conclude otherwise however, and find its rationale to be persuasive.
Sufficient Evidence Supports the Giving of CALCRIM No. 372
Defendant also challenges the sufficiency of the evidence to warrant giving CALCRIM No. 372. We conclude the giving of the instruction was appropriate to show consciousness of guilt. Here, the prosecution presented a factually strong case as evidenced by the testimony of eyewitness Barfoot who corroborated Myeshia’s testimony that defendant purposely rammed her vehicle twice, and then got in his car and drove away.
Barfoot’s testimony at trial established that after Myeshia stopped her car by the building entrance and ran inside, defendant stopped his car and also approached the entrance. When the driver of the car Myeisha hit walked up to the entrance and told Barfoot that his car had been struck as well, defendant turned around and walked back to his car. To prevent defendant from leaving the scene Barfoot yelled to him, “You better not leave, I’ve got your license plate.” Defendant ignored her, and then drove away.
A reasonable jury could thus conclude from this evidence that defendant fled to avoid being apprehended by the police.
Trial Counsel Did Not Render Defendant Ineffective Assistance
Defendant next contends his trial counsel rendered him ineffective assistance for failing to request the jury be instructed with CALCRIM No. 316. CALCRIM No. 316 limits the consideration of prior crimes evidence to the issue of credibility. (People v. Anderson (2007) 152 Cal.App.4th 919, 940-941.) Defendant contends trial counsel should have requested the instruction because the jury needed to know how to fully and fairly evaluate that portion of his testimony where he admitted he suffered two prior convictions – one in 1996 when he was 17 years of age, and another one in 2004 for being a felon in possession.
CALCRIM No. 316 provides: “If you find that a witness has been convicted of a felony, you may consider that fact [only] in evaluating the credibility of the witness’s testimony. The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable.”
The court has no sua sponte duty to instruct with CALCRIM No. 316. (See People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278 [analogous instruction of CALJIC No. 2.23.]
Establishing ineffective assistance of counsel or “IAC” requires a showing, first, that counsel’s representation fell below an objective standard of reasonableness; and second, that the deficient representation was prejudicial, in that there is a reasonable probability that but for counsel’s failings, the result would have been more favorable, i.e., the jury would have entertained a reasonable doubt. In this context, a reasonable probability is one sufficient to undermine confidence in the outcome. (In re Neely (1993) 6 Cal.4th 901, 908; Strickland v. Washington (1964) 466 U.S. 668, 687, 694-695.)
In considering an ineffective assistance claim “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies...If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,... that course should be followed.” (Strickland, supra, at p. 697; People v. Fairbanks (1997) 16 Cal.4th 1223, 1241.) We follow this approach and therefore turn to whether defendant suffered prejudice from counsel’s failure to ask for the limiting instruction.
Here, we conclude it is not reasonably probable counsel’s alleged error altered the outcome of this case. Myeshia’s testimony that defendant assaulted her was corroborated by Barfoot, a disinterested witness who heard the impact, described as a “crash” from the opposite end of the parking lot. Defendant’s explanation that he gently nudged Myeshia’s car, traveling only one mile per hour when he hit her from the rear, is belied by the fact that the trunk opened at impact. Defendant explained at trial he could not stop his car because of defective brakes and a deformed toe, but failed to mention this to the investigating officer who interviewed him that evening. At trial, defendant testified he “hit the back of her car harder than I anticipated,” but, realizing his slip, corrected “not anticipated, but harder than I thought.” Finally, the prosecutor in closing argument informed the jury defendant’s priors were relevant only in deciding whether to believe defendant’s account. In sum, nothing in the record undermines our confidence in the jury’s verdict. The defendant’s claim that trial counsel rendered him ineffective assistance for failing to request CALCRIM No. 316 fails.
B. There Was No Cumulative Error
Defendant contends the cumulative effect of the alleged instructional errors, and trial counsel’s ineffective assistance combined to deprive him of his right to a fair trial and due process. We have rejected his ineffective assistance claim, and there were no other errors in the case. (People v. Avila (2006) 38 Cal.4th 491, 608; People v. Hill (1998) 17 Cal.4th 800, 844.) Lastly, we note defendant is entitled to a fair trial not a perfect one, and this is what he got. (People v. Mincey (1992) 2 Cal.4th 408, 454.)
III
Disposition
The judgment is affirmed.