Filed 12/9/14 P. v. Valine CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C075411

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F08213)

         v.

DANIEL JOSEPH VALINE,

                   Defendant and Appellant.




         Victim Kelly McClurg was fatally shot at his house, twice in the face and once in
the chest over a dispute about stolen marijuana. Present at the shooting were defendant
Daniel Joseph Valine, defendant’s son Justin Valine, and Kailan James, who was the
boyfriend of defendant’s daughter. The question at trial was who pulled the trigger --
defendant or James.


         The son testified at trial to the following: defendant was the shooter; defendant
emerged from the victim’s house carrying a shotgun and James emerged carrying

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marijuana plants; and defendant fled the scene in a car (in which the son and James were
the passengers).
          Police recorded a conversation between defendant, the son, and a sergeant.
Defendant said he was at the victim’s house when the shots went off “in front of [him].”
James fired the shots. Defendant grabbed the shotgun from James. The son saw
defendant grab the shotgun from James. Defendant fled right afterward.
          The People charged defendant with the victim’s first degree malice murder, and
the jury found him guilty of second degree murder.
          Defendant appeals, raising three contentions: (1) the testimony of his accomplice
son was not sufficiently corroborated; (2) the court abused its discretion in admitting five
inflammatory photographs of the victim’s body; and (3) the consciousness of guilt
instructions allowed the jury to draw irrational inferences of his guilt. We disagree and
affirm.
                                        DISCUSSION
                                               I
            The Testimony Of The Accomplice Son Was Sufficiently Corroborated
          Defendant contends the testimony of his accomplice son was not sufficiently
corroborated. The son testified it was defendant who fatally shot the victim. We
disagree because the corroborating evidence placed defendant at the scene of the crime,
put the murder weapon in his hands moments after the shooting, and showed he fled the
scene.
          “A conviction can be based on an accomplice’s testimony only if other evidence
tending to connect the defendant with the commission of the offense corroborates that
testimony. ([Pen. Code,] § 1111.) The corroborating evidence may be circumstantial or
slight and entitled to little consideration when standing alone, and it must tend to
implicate the defendant by relating to an act that is an element of the crime. The
corroborating evidence need not by itself establish every element of the crime, but it

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must, without aid from the accomplice’s testimony, tend to connect the defendant with
the crime.” (People v. McDermott (2002) 28 Cal.4th 946, 985-986.)
       The corroborating evidence, which came from defendant himself, showed the
following three facts. One, defendant admitted he was in the victim’s house when the
shots went off “in front of [him].” Two, defendant admitted he “grabbed a-hold of [the
gun.]” And three, defendant admitted he fled right after the shooting, i.e., “I went
straight out to the car. I was in that fuckin’ car so fast.” This evidence corroborated the
accomplice son’s testimony that it was defendant who fatally shot the victim. (See
People v. Barillas (1996) 49 Cal.App.4th 1012, 1021 [evidence that the defendant was
where the shooting took place, only a short distance from the victim, and fled after the
shooting is sufficient corroborating evidence].)
                                             II
                          The Court Acted Within Its Discretion
                       To Admit Photographs Of The Victim’s Body
       Defendant contends the court abused its discretion under Evidence Code
section 3521 when it admitted five photographs of the victim’s body that defendant
claims “had no probative value; the only purpose served . . . was to inflame the jury.”
Not so.
       The probative value of the photographs was to show the location of the gunshots
and manner of killing, which was relevant to the degree of murder. Namely, the
photographs were probative of whether defendant was guilty of first degree malice
murder. Under this theory, the People had to prove defendant either unlawfully intended




1      Evidence Code section 352 states as follows: “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.”

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to kill (express malice) or the natural and probable consequences of defendant’s act were
dangerous to human life (implied malice). The at-issue photographs showed the victim’s
body and face bloodied and disfigured from the gunshots. The location of the shots (to
the chest and the face) and the manner of shooting (close range) tended to show both an
unlawful intent to kill and acts dangerous to human life.
       Contrasted with the probative value of the photographs, the prejudicial effect was
minimized by the court limiting the number of photographs to five (out of the eight
originally proffered by the People). As the court noted, those five were not cumulative
because they “show[ed] different perspectives of the victim’s injuries both close-up and
at various angles.”
       Giving this appropriate weighing of the probative value against the prejudicial
effect of the photographs, the trial court was well within its discretion to admit the five
photographs. (See People v. Wilson (1992) 3 Cal.4th 926, 938 [where the record reflects
the trial court weighed the probative value of the photographs against their potential
prejudicial effect before admitting them, it properly exercised its discretion].)
                                             III
                         The Consciousness Of Guilt Instructions
              Did Not Permit Irrational Inferences About Defendant’s Guilt
       Defendant contends the consciousness of guilt instructions given here relating to
false statements (CALCRIM No. 362), fabrication of evidence (CALCRIM No. 371) and
flight (CALCRIM No. 372) allowed the jury to draw irrational inferences of guilt in
violation of his right to due process of law.2 Not so.



2       CALCRIM No. 362, as given here, reads as follows: “If the defendant made a
false or misleading statement before this trial relating to the charged crime knowing the
statement was false or intending to mislead, that conduct may show he was aware of his
guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude
the defendant made the statement it is up to you to decide its meaning and importance.

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       Defendant acknowledges our Supreme Court has repeatedly approved
consciousness of guilt instructions. (E.g., People v. Howard (2008) 42 Cal.4th 1000,
1020-1021 [CALJIC No. 2.52 & CALCRIM No. 372 (flight)]; 1024-1025 [CALJIC No.
2.03 & CALCRIM No. 362 (false statements)]; People v. Coffman and Marlow (2004) 34
Cal.4th 1, 101-102 [CALJIC Nos. 2.04 (fabricating evidence) & 2.06 (suppressing
evidence)].)
       Defendant contends, however, that unlike their CALJIC counterparts, the
CALCRIM instructions here used the phrase “aware of his guilt.” Thus, he reasons, the
instructions go beyond telling jurors that false statements, fabrication of evidence or
flight may be considered as indicative of guilt. They tell jurors that such conduct may
show the defendant was “aware of his guilt.” The Court of Appeal for the Fifth Appellate
District rejected this claim in People v. Hernández Ríos (2007) 151 Cal.App.4th 1154.
(See also People v. Paysinger (2009) 174 Cal.App.4th 26, 29-32.) As the Fifth District
explained, the use of the term “aware of his guilt” in the CALCRIM consciousness of
guilt instructions does not create an inference any different from that permitted by their
CALJIC predecessors. (Hernández Ríos, at pp. 1158-1159.) We agree with Hernández




However, evidence that the defendant made such a statement cannot prove guilt by
itself.”

       CALCRIM No. 371, as given here, reads as follows: “If the defendant tried to
obtain false testimony, that conduct may show that he was aware of his guilt. If you
conclude that the defendant made such an attempt, it is up to you to decide its meaning
and importance. [¶] However, evidence of such an attempt cannot prove guilt by itself.”

       CALCRIM No. 372, as given here, reads 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 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.”

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Ríos, follow the lead of the California Supreme in rejecting challenges to the predecessor
instructions, and reject defendant’s contention.
                                      DISPOSITION
       The judgment is affirmed.



                                                       ROBIE                , J.



We concur:



      RAYE                  , P. J.



      DUARTE                , J.




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