Filed 6/9/15 P. v. Gosal 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                                                  C074473

                   Plaintiff and Respondent,                                                 C075458

         v.                                                                      (Super. Ct. No. 08F07142)

GURPREET SINGH GOSAL,

                   Defendant and Appellant.




         Based upon defendant Gurpreet Singh Gosal’s involvement in a shooting at a Sikh
festival being held in Sacramento, he was convicted by a jury of the second degree
murder of Parmjit Poma Singh (Poma) with a finding that he used a firearm in the killing,
but was acquitted of the attempted murder of Sahibjeet Singh. Defendant was sentenced
to 35 years to life in prison.
         On appeal, defendant contends the trial court prejudicially erred by instructing the
jury per CALCRIM No. 3472 (one may not invoke self-defense if he or she provoked a
fight or quarrel as an excuse to use force) because the evidence was insufficient to
support the instruction. Defendant also contends that the court prejudicially erred in
instructing the jury per CALCRIM No. 371 (consciousness of guilt from defendant’s

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attempt to hide evidence) and CALCRIM No. 372 (consciousness of guilt from
defendant’s fleeing the crime scene) because each instruction “embod[ies] irrational
permissive inferences in violation of due process.” Lastly, defendant contends that if the
foregoing errors were not singularly prejudicial, their cumulative effect was so. We
reject the contentions.
                              STATEMENT OF THE FACTS
         On the weekend of August 30 and 31, 2008, a festival was held at the Bradshaw
Sikh Temple in Sacramento, which was attended by several hundred people. The festival
provided for games of field hockey, basketball, track and field, and cricket in nearby
areas.
         Defendant testified that in 2004 he lived in Elk Grove, which is where he became
friends with Amandeep Dhami (Dhami). In 2006 defendant moved to Indiana. While in
Indiana, defendant received threatening telephone calls from one Lahdi in California
because defendant had refused to help Lahdi’s friends in a criminal matter. Defendant
stayed in touch with Dhami and was aware that Dhami was having problems with Poma,
who knew Lahdi. Defendant learned that there was to be a meeting between Dhami and
Poma on Saturday, August 30. Thinking this would be a good opportunity talk things
over, defendant flew to Sacramento on that Saturday with a scheduled return flight for the
following day around noon.
         Dhami and his friend Navi picked up defendant at the airport Saturday evening
and, after making a few short stops, they drove to the Gun Room, where Navi was to buy
ammunition. However, because Navi did not have identification defendant bought the
ammunition, which consisted of a large quantity of bullets of various calibers. The
meeting with Poma did not take place so defendant went to a motel room with Dhami and
others where they hung out.
         The next day, defendant’s ride to the airport failed to show and he missed his
scheduled flight. Dhami eventually picked defendant up and the two decided to go to the

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festival. Defendant put his duffle bag in the passenger seat of Dhami’s sport utility
vehicle (SUV) and saw a black backpack behind the seat. The two drove to the festival,
parked, and walked to a drink stand. Defendant denied that either he or Dhami took
anything out of the SUV and he denied having a gun or seeing Dhami with one. About
20 or 30 minutes later, while Dhami and defendant were walking to talk to some men,
someone yelled Dhami’s nickname and 15 to 20 men, among whom was Alvinder
Khangura (Alvinder), were looking at them. Defendant recognized some of the men as
the ones giving Dhami trouble.
       As the men walked toward Dhami and defendant, Dhami said to Alvinder,
“[W]hat’s up bro?” Alvinder replied, “[N]o, bro,” and punched Dhami in the face, and
the men continued to advance toward defendant and Dhami. Dhami pulled a gun and the
men with Alvinder backed up a few steps. A man in a white shirt pulled a gun, Alvinder
hit Dhami again, the men started toward Dhami. Defendant heard three or four shots and
the men started hitting Dhami and defendant. Someone struck defendant on the back of
his head, causing him to stumble into Dhami who then handed defendant a second gun.
Defendant tried to persuade the men not to fight, but they continued to beat him.
Defendant backed up, fired about three shots into the ground, and then ran for the parking
lot. As he ran, he threw away the gun and the keys to the SUV. Defendant was caught
and beaten some more after which he was taken back to the festival area where he was
held and later arrested.
       The prosecution’s evidence regarding the shooting was considerably different than
defendant’s version. Tajinder Uppal testified that he was at the festival on Sunday, about
1:00 p.m., and was returning to his truck to stow his gear after having played field hockey
when he saw defendant drive into the parking lot in Dhami’s SUV. Defendant and
Dhami got out of the SUV, opened both rear passenger doors, and appeared to get
something from the vehicle. As defendant and Dhami walked toward the fields, Uppal



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did not see anything in their hands. Uppal started walking toward the temple when he
heard gunshots and saw people chasing defendant.
      Manwinder Singh Mavi (Mavi) testified that he was at the festival with his friends
Sahibjeet Singh, Alvinder, and Poma watching a cricket match when he saw defendant
and Dhami come through the main entrance and walk toward them. When defendant and
Dhami were about 10 feet from Mavi’s group, Dhami angrily and loudly cursed Poma
and Poma’s sister. Neither Poma nor anyone else argued back. Mavi saw Dhami and
defendant each pull out a gun and start shooting in the direction of Mavi’s group. Dhami
fired several shots, ran out of ammunition, and tried to pull out another gun. After Dhami
and defendant ran out of ammunition they ran but were caught by some of the men.
Dhami was able to get into a car and escape. Defendant was caught, beaten, and then
held for the arrival of law enforcement. Poma was fatally shot and died at the scene, and
Sahibjeet Singh was seriously wounded.
      Law enforcement agents searched the festival area. Beneath a Camry in the
parking lot they found a .44-caliber revolver and a black backpack. The backpack
contained five boxes of various calibers of ammunition, each of which bore a price
sticker indicating it was purchased from the Gun Room. The revolver was loaded with
.41-caliber bullets whose head stamps matched the head stamps of a box of .41-caliber
head stamps found in the backpack.
                                     DISCUSSION
                                            I
      The defense was self-defense, defendant admitting he fired several shots into the
ground, but only after he and Dhami were being assaulted with clubs and hockey sticks.
The trial court instructed the jury on self-defense and with CALCRIM No. 3472, which
provides: “A person does not have the right to self-defense if he provokes a fight or
quarrel with the intent to create an excuse to use force.” Defendant contends there was
insufficient evidence to support the instruction. We disagree.

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       “ ‘ “[I]n criminal cases, even in the absence of a request, the trial court must
instruct on the general principles of law relevant to the issues raised by the evidence.
[Citations.] The general principles of law governing the case are those principles closely
and openly connected with the facts before the court, and which are necessary for the
jury’s understanding of the case.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
“ ‘It is an elementary principle of law that before a jury can be instructed that it may draw
a particular inference, evidence must appear in the record which, if believed by the jury,
will support the suggested inference. [Citation.]’ [Citation.]” (People v. Saddler (1979)
24 Cal.3d 671, 681.) The facts supporting an instruction do not need to be conclusively
established before the instruction can be given; instead, “ ‘there need only be some
evidence in the record that, if believed by the jury, would sufficiently support the
suggested inference. [Citations.]’ ” (People v. Alexander (2010) 49 Cal.4th 846, 921.)
Stated another way, “[W]e do not consider the credibility of a witness’s testimony in
determining whether the record holds substantial evidence to warrant a particular jury
instruction.” (People v. Dowdell (2014) 227 Cal.App.4th 1388, 1419.)
       Evidence supporting the instruction is as follows. Defendant flew to Sacramento
purportedly to take advantage of an opportunity for him and Dhami to talk over their
respective problems with Poma and Lahdi; however, shortly after Dhami and Navi picked
defendant up at the airport they went to the Gun Room where defendant purchased a
large amount of ammunition of varying calibers, an act hardly consistent with talking
things over. The next day, defendant put his duffle bag in Dhami’s SUV, saw a black
backpack behind the passenger seat, and they drove to the festival.
       Defendant and Dhami were seen pulling into the parking lot in Dhami’s SUV,
getting out, and appeared to be taking something out and then walking toward the fields.
Shortly thereafter, gunshots were heard and people were running from the area toward
which defendant and Dhami had been walking. After the shooting, the backpack and a



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loaded gun were found under a car in the parking lot, the gun and backpack contained
ammunition purchased from the Gun Room.
         Mavi testified he was with Poma and other friends watching a cricket match when
he saw Dhami and defendant enter the area, walk to within 10 to 12 feet of Mavi and
Poma. Instead of trying to talk things over with Poma, Dhami started cursing at Poma
and Poma’s sister. Dhami then and asked Poma, “[N]ow where do you want to go,”
meaning what are you going to do about it. When neither Poma nor anyone else in
Mavi’s group responded or argued back, Dhami and defendant each pulled out a gun,
which meant the guns were hidden on them, and began shooting toward Mavi and his
group.
         From this evidence, the jury could reasonably infer defendant and Dhami had gone
to the festival with the intention of shooting Poma. Instead of immediately shooting
Poma, with guns hidden, Dhami insulted and challenged Poma, suggesting that Dhami
and defendant were trying to get Poma and/or the group he was with to initiate an assault
upon them. This, in turn, would afford Dhami and defendant the benefit of claiming self-
defense. Accordingly, there was sufficient evidence to support the CALCRIM No. 3472
instruction.
         Defendant sees the circumstances of the present case as indistinguishable in its
circumstances from those in People v. Conkling (1896) 111 Cal. 616 (Conkling).
Defendant is wrong.
         In Conkling, the victim put up a fence to stop neighborhood residents from
crossing his land on their way to the post office. When the defendant attempted to cross
the victim’s land, the defendant was confronted by the victim who, after a heated
argument, would not permit the defendant to continue. Days later the defendant armed
himself with a rifle and, in the victim’s absence, tore down the fence. Yet a few days
later, the defendant, again armed with the rifle, was returning from the post office across
the victim’s land when the victim confronted him. Trouble arose between the two and

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the defendant fatally shot the victim. Other than the defendant, there were no witnesses
to the shooting. (Conkling, supra, 111 Cal. at pp. 619-621)
       The defendant was charged with murder and claimed self-defense. Part of the trial
court’s instructions to the jury on self-defense stated the jury could infer that if, prior to
the shooting, the defendant provoked a quarrel or was the cause of a danger he had
brought upon himself, such conduct would forfeit his right to a claim self-defense.
(Conkling, supra, 111 Cal. at pp. 624-625.) The Supreme Court found the instruction
was reversible error because there was no evidence to show defendant initiated a quarrel
or had brought danger upon himself; accordingly, there was no evidence to support the
instruction. (Id. at pp. 625-626, 628.)
       Defendant argues the present case comes within the scope of Conkling because
“[t]he prosecution presented no direct evidence that [he] and [Dhami] went to the festival
to provoke a fight with the intent to create an excuse to use force,” and there was only
circumstantial evidence that Dhami intended to provoke a fight, or that defendant knew
of the weapons in Dhami’s backpack. What defendant fails to grasp is that the facts
giving rise to the giving of an instruction need not be conclusively established, but
instead, “ ‘there need only be some evidence in the record that, if believed by the jury,
would sufficiently support the suggested inference.’ [Citations.]” (People v. Alexander,
supra, 49 Cal.4th at p. 921.) Indeed, Mavi’s testimony that when none of his group
responded to Dhami’s verbal assault upon and challenge to Poma, Dhami and defendant
pulled out guns and started shooting, constitutes evidence that Dhami and defendant were
the initial aggressors. Accordingly, Conkling is factually distinguishable.
       Counsel argues that People v. Ramirez (2015) 233 Cal.App.4th 940 (Ramirez)
states that CALCRIM No. 3472 is not a correct statement of the law. Ramirez is
inapposite because it dealt with whether or not it was applicable to the circumstances of
that case.



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                                                II
       As given to the jury, CALCRIM No. 371 stated: “If the defendant tried to hide
evidence, 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
stated: “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.”
       Defendant argues these instructions violated his right to due process because they
“permitted the jury to infer one fact, guilt, from other facts, i.e., alleged false evidence
and flight.” The instructions do no such thing.
       “As the United States Supreme Court has observed: ‘. . . A permissive inference
violates the Due Process Clause only if the suggested conclusion is not one that reason
and common sense justify in light of the proven facts before the jury. [Citation.]’ ”
(People v. Mendoza (2000) 24 Cal.4th 130, 180.) And an “inference of consciousness of
guilt from . . . fabrication or suppression of evidence is one supported by common sense,
which many jurors are likely to indulge even without an instruction.” (People v.
Holloway (2004) 33 Cal.4th 96, 142.)
       Each instruction informs the jury that if they find the predicate conduct then such
conduct “may show that he was aware of his guilt.” But each instruction further states
that such a finding “cannot prove guilt by itself,” thereby prohibiting the jury from basing
a finding of guilt on defendant’s hiding evidence or his fleeing the scene. Consequently,
the instructions do not have the effect attributed to them by defendant.
       Defendant further argues that “[t]he language of CALCRIM No. 371 is akin to that
found constitutionally invalid in United States v. Di Stefano (2d Cir. 1977) 555 F.2d
1094.” To the contrary, CALCRIM No. 371 conforms to the instruction approved by the

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appellate court in Di Stefano. In Di Stefano, the trial court instructed the jury:
“ ‘Evidence has been introduced that the defendant in this case, Linda Di Stefano, made
certain exculpatory statements or claimed statements outside of this courtroom,
explaining her actions. [¶] If the jury finds such statements were untrue and the
defendant made them with knowledge of their falsity, the jury may consider them as
circumstantial evidence of the defendant’s guilt.’ ” (United States v. Di Stefano, supra,
555 F.2d at p. 1104 (Di Stefano), italics omitted.)
       In finding the instruction “incorrect,” Di Stefano stated: “It is clear that this was
incorrect. False exculpatory statements are not admissible as evidence of guilt, but rather
as evidence of consciousness of guilt.” (Di Stefano, supra, 555 F.2d at p. 1104.) We do
not see CALCRIM No. 371 as “akin” to the challenged instruction in Di Stefano.
       CALCRIM No. 372 does not suffer from the purported defect in the instruction as
seen by the court in Di Stefano, to wit, that the evidence of knowing false statements are
not admissible “as evidence of guilt” but are only admissible “as evidence of
consciousness of guilt.” CALCRIM No. 372 states that the act of fleeing “may show that
he was aware of his guilt.” In People v. Hernandez Rios (2007) 151 Cal.App.4th 1154
(Hernandez Rios), the court compared “ ‘awareness of guilt’ ” with “ ‘consciousness of
guilt’ ” and determined they were essentially the same statement of a defendant’s state of
mind. (Id. at pp. 1158-1159.)1 Because CALCRIM No. 372 states the evidence of flight



1  Hernandez Rios, supra, 151 Cal.App.4th at pages 1158 through 1159, reasoned as
follows: “Our short etymological analysis of Rios’s argument begins with a dictionary
definition of the word ‘aware’: ‘Having knowledge or cognizance.’ (American Heritage
Dict. (4th ed. 2000) p. 125.) In reliance on the dictionary’s list of synonyms that include
the word ‘aware,’ Rios argues that word ‘implies knowledge gained through one’s own
perceptions or by means of information.’ (Italics omitted; see ibid.) ‘Conscious,’ another
word on the list, ‘emphasizes the recognition of something sensed or felt’ (id., at p. 125,
italics omitted), which, of course, focuses on the acquisition of knowledge not by
‘information’ but by ‘perceptions.’ (Ibid.) Since the dictionary defines ‘consciousness’
as ‘[s]pecial awareness or sensitivity: class consciousness; race consciousness’ (id. at

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may show “awareness of guilt,” which is the same as “consciousness of guilt,” which was
approved by the Di Stefano court, defendant has no reason to complain.2
                                             III
       Defendant contends that if we find that no single error by the trial court is
sufficient to establish prejudice, the combination of the errors does so. We have found
that there was no error as argued, so there could be no combination of errors. We have
also noted that even if there was error its effect was utterly minimal given the
overwhelming evidence of defendant’s guilt.
                                      DISPOSITION
       The judgment is affirmed.




                                             BLEASE                     , Acting P. J.


We concur:


         MURRAY                    , J.


         RENNER                    , J.




p. 391, italics omitted), ipso facto the special awareness that [People v.] Mendoza [(2000)
24 Cal.4th 130] allows a jury to infer from a flight instruction is ‘guilt consciousness (in
the syntax of the dictionary) or ‘consciousness of guilt’ (in the syntax of the California
Supreme Court). (Compare American Heritage Dict., supra, at p. 391 (italics omitted)
with Mendoza, supra, 24 Cal.4th at p. 180.) As the inference in Mendoza passes
constitutional muster, so does the inference here.”
2 Given our resolution of issues raised, we need not address the People’s claim that
defendant has forfeited challenges to the instructions.

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