Filed 8/29/16 P. v. Thomas CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069865
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F14902852)
                   v.

MICHAEL SHAY THOMAS,                                                                     OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. John F. Vogt,
Judge.
         Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
          Michael Shay Thomas (defendant) stands convicted, following a jury trial, of
attempted murder involving the personal and intentional discharge of a firearm that
proximately caused great bodily injury (Pen. Code,1 §§ 187, subd. (a), 664, 12022.53,
subd. (d); count 1), assault with a firearm involving the personal use of a firearm and
personal infliction of great bodily injury (§§ 245, subd. (a)(2), 12022.5, subd. (a),
12022.7, subd. (a); count 2), and possession of a firearm by a felon (§ 29800,
subd. (a)(1); count 3). Following a bifurcated court trial, defendant was found to have
suffered two prior serious felony convictions (§ 667, subd. (a)(1)) that were also strikes
(§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and as to each of which he served a
separate prison term (§ 667.5, subd. (a)). His request to strike one of his prior
convictions was denied, and he was sentenced to prison for a total unstayed term of
10 years plus 52 years to life, and ordered to pay restitution and various fees, fines, and
assessments.
          On appeal, we hold defendant was not entitled to an instruction on attempted
voluntary manslaughter, and the trial court did not err by instructing on flight. We
affirm.
                                            FACTS
          As of March 24, 2014, Steven Thomas (Thomas), defendant’s brother, resided in
an apartment complex on Saginaw, in Fresno.2 Defendant and the brothers’ mother lived
in different apartments in the complex. Defendant drove a white Chevrolet Caprice. At
trial, Thomas denied having a disagreement with defendant, in the days leading up to
March 24, about a white paint transfer on Thomas’s girlfriend’s car. Thomas also denied
having any disagreement with defendant about how defendant was disrespecting their



1         All statutory references are to the Penal Code.
2         Unspecified references to dates in the statement of facts are to the year 2014.


                                                2.
mother, although they had had such a discussion in the past. Thomas denied getting into
an altercation with defendant a day or so before March 24; they merely had “an issue.”
       Around 6:00 a.m. on March 24, Thomas heard a knock at his apartment door. He
did not see who it was. He went outside and saw “a random person” and asked if he had
knocked, but the person said no, and so Thomas went back inside. He subsequently took
out his trash. Because he threw away something he needed to retrieve, he came out
twice. The first time, he saw defendant sitting outside defendant’s apartment. The
second time, Thomas did not see defendant. He saw some men, but they were too far
away for him to identify. None called out to him, and no words were exchanged. He
turned away, then felt something hit him. At the same time, he heard gunshots. He ran
without looking back. He was struck in the back and both legs.3
       Thomas made it as far as the medical center on Dakota, “a pretty good block or
two” from his apartment. There, he sat down. People came to help him, but he
“blank[ed] out” a bit. He did not recall what he said, other than that he had been shot and
was in a lot of pain. When he was talking, he did not lie about what had happened.
       On March 24, Eric Munoz was a security officer at the Sierra Community Health
Center on Dakota. Around 7:20 or 7:25 a.m., he came in contact with Thomas, who was
near the health center entrance. Thomas’s leg was bleeding and members of the medical
staff were assisting him.
       In response to Munoz’s questions, Thomas gave his name, said he had been shot
by his brother (whose name he also gave), and told where it had happened. He said he
and his brother were arguing because his brother was cussing at their mother. When the
argument went nowhere, Thomas walked away. That was when he got shot with a .38


3      Three expended cartridge casings were found at the apartment complex. Two of
the shell casings were stamped “.45 auto,” meaning they were .45-caliber ammunition.
The third casing appeared to be the same caliber. There were no fingerprints on the
casings.


                                            3.
caliber handgun. A police officer and emergency personnel then arrived; Munoz turned
the information over to the officer, and Thomas was transported to Fresno Community
Regional Medical Center (CRMC) in Fresno.
       Fresno Police Officer Garza followed Thomas to CRMC and spoke with him
about 20 to 30 minutes after arrival. Although Thomas had an IV in his arm and was
complaining about pain, his eyes were open and he appeared to respond coherently to
Garza’s questions. Thomas was alert and angry.
       When Garza asked what happened, Thomas said his brother Michael shot him.4
Thomas said they had been arguing over the last couple of days. He thought defendant
was disrespecting their mother, calling her names and things, and he told him to stop
doing that. Thomas said the night before, they got into a wrestling-type fight. Nobody
threw a punch; they were just on the floor, wrestling.
       Thomas told Garza that he was in his apartment around 6:00 that morning when
defendant knocked on the front door. Thomas ignored him. Between 7:00 and 7:30 a.m.,
Thomas walked out of the apartment to discard the trash. As he was walking away from
the trash cans, defendant came up and said he had been waiting up all night for Thomas.
Defendant then pulled a gun that Thomas thought was a .38- or .40-caliber, and pointed it
at Thomas. Thomas was shocked. He was not sure what to do, but then decided to turn
around and run away. As he was running, he heard several gunshots and felt bullets
striking his body.
       Fresno Police Detective Miranda and his partner, Detective Fenstermaker,
responded to the hospital around 10:00 a.m., after being briefed by officers on scene at


4      At trial, Thomas stated that when he spoke to Garza, he was traumatized and on
medication. He assumed it was defendant who shot him because of past arguments they
had had. Months earlier, they had argued over defendant borrowing a little money on
occasion and Thomas wanting it back. Also, defendant had shot Thomas in the toe in
1992. Defendant did not shoot him on March 24, however.


                                            4.
the apartment complex. Miranda spoke with Thomas, who was being treated in the
emergency room. Thomas was upset, angry, and in a lot of pain. He was, however, very
coherent.
       During the interview (an audio recording of which was played for the jury),
Thomas said what happened was the “same shit” as happened 15 years earlier, with
defendant disrespecting people and their mother, and Thomas asking defendant to “chill
out” a little. Thomas said he did not think defendant was trying “to do it,” but was just
trying to scare him.5 Thomas related that the day before, Thomas’s girlfriend’s car was
hit. Thomas asked defendant about it; defendant said he did not care. Thomas thought
defendant did it.
       Thomas related that at about 7:15 that morning, he saw defendant walking away.
Thomas already knew what was happening. He thought maybe, if he went outside with
defendant, defendant would “chill out.”6 He decided to take out his trash on the way.
When Thomas reached the gate by his apartment, defendant started walking toward him.
They exchanged words, and Thomas laughed about it. Thomas felt defendant was trying
to make his mind up to do what he needed to do. Defendant pulled out a revolver
Thomas believed was .38-caliber. When Thomas saw the pistol, he turned around and
ran. He felt shots and kept running. He did not know if defendant got into a car, as he
did not look back. Defendant did have a white Caprice, however.
       At the conclusion of the interview, Miranda returned to the police department and
printed out a photograph of defendant. He returned to the hospital about 11:15 a.m.
Thomas was at the same location and seemed the same physically and in terms of being
coherent. During Miranda’s second interview of Thomas (an audio recording of which


5      Miranda believed Thomas was referring to the earlier shooting.
6     Thomas explained that defendant had threatened him, but Thomas felt all
defendant had to do was leave their mother alone, and they could “still be cool.”


                                             5.
was played for the jury), Thomas identified the photograph as being defendant, whom he
described as “[t]rip pin [sic] off what happened” the day before. Thomas confirmed they
had been arguing about defendant disrespecting their mother, but said he did not believe
he got the best of defendant and did not hurt him.
       Fresno Police Detective Harrell was assigned to look for defendant’s white
Chevrolet Caprice. There were several locations in Fresno to which police thought the
vehicle might go. One of the addresses, at which defendant previously had been
contacted, was in the 3900 block of East Woodward.
       At 10:30 a.m., Officer Potts contacted Harrell and said he had located the vehicle
in the parking lot at that location. When Harrell arrived, he began surveillance to see if
defendant arrived or left or if the vehicle left. Harrell also kept an eye on apartments 201
and 202. He saw a man, who resembled defendant, and a woman walk into the parking
lot, then toward the stairwell that led to those apartments. There was another man
outside, and the three appeared to have a conversation. The man who resembled
defendant and the woman then went up the stairs toward one of the two apartments.
       A short time later, Harrell used the loud speaker from a police car to identify
himself as a police officer and to call defendant by name to step out of the apartment.
This went on for some time with no contact, but finally the person Harrell had seen
earlier on the stairwell in front of apartment 202, walked out with a baby in his arms. He
came downstairs as directed, and was contacted and detained. Defendant then came out
as directed. He cooperated with police and was taken into custody. He was unarmed.
This was at least 30 minutes after the car was identified.7


7      No gun was found at the crime scene, in the Caprice, or in the apartment at which
defendant was located. Miranda, who was the lead detective in this case, was notified at
2:00 p.m. that defendant was in custody. Fenstermaker requested that a gunshot residue
(GSR) test be conducted on defendant. Scott West, a supervisor in the Fresno Police
Department’s Crime Scene Investigation Bureau, collected a GSR kit around 4:40 that
afternoon, but did not know it was ever tested. As far as Miranda knew, no gunshot

                                             6.
       In the two weeks following March 24, Thomas telephoned Miranda four to five
times a week and also sent him text messages with questions about the case. He also
thanked Miranda a couple of times for helping him with the arrest. He was upset and said
he could not believe his brother had tried to kill him.
                                       DISCUSSION
                                               I
        FAILURE TO INSTRUCT ON ATTEMPTED VOLUNTARY MANSLAUGHTER
       Defense counsel originally requested that the court instruct on attempted voluntary
manslaughter, based on sudden quarrel/heat of passion and on imperfect self-defense, as a
lesser included offense of attempted murder, as charged in count 1. During the
instructional conference, the trial court stated it saw no basis for instructing on any form
of self-defense; however, there was some basis for heat of passion in Thomas’s
testimony. Defense counsel agreed. The prosecutor stated he did not know, but
“tend[ed] to agree.” After discussion of unrelated issues, the following occurred:

              “[DEFENSE COUNSEL]: Your Honor, if I did request lessers I am
       withdrawing my request. Obviously, the court can do it sua sponte, but I’m
       not requesting lessers, at least felony lessers. [¶] . . . [¶] . . . [I]n terms of
       what the evidence shows, . . . I believe there is enough to allow for an
       instruction on voluntary under, as we stated previously, under a theory of
       heat of passion. However, I’m not specifically asking for it. [¶] . . . [¶] . . .
       In other words, the court can do it sua sponte but I’m not asking for it
       because, frankly, any one felony will expose my client to life exposure. I
       don’t want to give them more felonies to consider.”
       Defendant now contends the trial court erred by failing to instruct sua sponte on
attempted voluntary manslaughter, based on sudden quarrel/heat of passion, as a lesser
included offense of attempted murder. He says the failure to do so violated his state and
federal due process rights to a fair trial and to present a defense, and created incomplete

residue was found. West explained that the ability to find GSR diminishes as time
passes; hence, no residue being found did not necessarily mean the person tested did not
fire a gun.


                                               7.
instructions on the mens rea of attempted murder. Alternatively, defendant claims,
defense counsel was ineffective for failing to request such an instruction.
       We conclude an instruction on attempted voluntary manslaughter was not
warranted by the evidence. Accordingly, we need not determine whether the doctrine of
invited error applies. Nor do we need to address defendant’s claim of ineffective
assistance of counsel, since it necessarily follows that defendant cannot establish he was
prejudiced by counsel’s omission. (See People v. Avila (2009) 46 Cal.4th 680, 705;
People v. Dennis (1998) 17 Cal.4th 468, 540-541; People v. Daniels (1991) 52 Cal.3d
815, 868.)
       “[A] trial court must, sua sponte, or on its own initiative, instruct the jury on lesser
included offenses ‘when the evidence raises a question as to whether all of the elements
of the charged offense were present [citation], but not when there is no evidence that the
offense was less than that charged.’ [Citation.]” (People v. Barton (1995) 12 Cal.4th
186, 194-195, fn. omitted.) “[T]he existence of ‘any evidence, no matter how weak’ will
not justify instructions on a lesser included offense, but such instructions are required
whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial
enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this
context is ‘ “evidence from which a jury composed of reasonable [persons] could . . .
conclude[]” ’ that the lesser offense, but not the greater, was committed. [Citations.]”
(People v. Breverman (1998) 19 Cal.4th 142, 162.) “ ‘[S]peculation is not evidence, less
still substantial evidence. [Citation.]’ [Citation.]” (People v. Dennis, supra, 17 Cal.4th
at p. 508.)
       “In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury. [Citation.] Moreover,
. . . the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct
on mere defenses, arises even against the defendant’s wishes, and regardless of the trial
theories or tactics the defendant has actually pursued. Hence, substantial evidence to

                                              8.
support instructions on a lesser included offense may exist even in the face of
inconsistencies presented by the defense itself.” (People v. Breverman, supra, 19 Cal.4th
at pp. 162-163, fn. omitted.) “This means that substantial evidence of heat of passion and
unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore
arise, even when the defendant claims that the killing was accidental, or that the states of
mind on which these theories depend were absent.” (Id. at p. 163, fn. 10.) Doubts as to
the sufficiency of the evidence to warrant such instructions are resolved in favor of the
accused. (People v. Flannel (1979) 25 Cal.3d 668, 685, fn. 12, superseded by statute on
another point as stated in In re Christian S. (1994) 7 Cal.4th 768, 777.)
       “[O]n appeal we employ a de novo standard of review and independently
determine whether an instruction on [a] lesser included offense . . . should have been
given. [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 584.) “Whether or not
to give any particular instruction in any particular case entails the resolution of a mixed
question of law and fact that . . . is . . . predominantly legal. As such, it should be
examined without deference.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)8
       “[T]he offense of attempted murder is reduced to the lesser included offense of
attempted voluntary manslaughter when the defendant acted upon a sudden quarrel or in
the heat of passion. [Citations.]” (People v. Millbrook (2014) 222 Cal.App.4th 1122,
1137; accord, People v. Van Ronk (1985) 171 Cal.App.3d 818, 824-825.)9 “An

8      Defendant challenges the Attorney General’s ability to claim, on appeal, that there
was no evidence to support an instruction on attempted voluntary manslaughter, since the
prosecutor never disputed the issue at trial. We question defendant’s claim of forfeiture.
(See People v. Koontz (2002) 27 Cal.4th 1041, 1075-1076, fn. 4; but see In re Stier
(2007) 152 Cal.App.4th 63, 74.) In any event, neither the trial court’s nor the
prosecutor’s assessment of the issue constrains us in independently determining whether
an instruction on a lesser included offense should have been given. (See People v. Steele
(2002) 27 Cal.4th 1230, 1251, 1253-1254.)
9      We rely on cases involving the reduction of murder to voluntary manslaughter for
the applicable legal principles. For our purposes, there is no meaningful difference
between the completed crime and an attempt, although we recognize attempted voluntary

                                              9.
intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ [citation],
and is thus voluntary manslaughter [citation], if the killer’s reason was actually obscured
as the result of a strong passion aroused by a ‘provocation’ sufficient to cause an
‘ “ordinary [person] of average disposition . . . to act rashly or without due deliberation
and reflection, and from this passion rather than from judgment.” ’ [Citations.]” (People
v. Breverman, supra, 19 Cal.4th at p. 163.) “[T]he passion aroused need not be anger or
rage, but can be any ‘ “ ‘[v]iolent, intense, high-wrought or enthusiastic emotion’ ” ’
[citation] other than revenge [citation].” (Ibid.)
       “Although section 192, subdivision (a), refers to ‘sudden quarrel or heat of
passion,’ the factor which distinguishes the ‘heat of passion’ form of voluntary
manslaughter from murder is provocation. The provocation which incites the defendant
to homicidal conduct in the heat of passion must be caused by the victim [citation], or be
conduct reasonably believed by the defendant to have been engaged in by the victim.
[Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59 (plur. opn. of Baxter, J.).) The
victim’s provocative conduct may be physical or verbal (ibid.), and “provocation can
arise as a result of a series of events over time” (People v. Kanawyer (2003) 113
Cal.App.4th 1233, 1245).
       “The heat of passion requirement for manslaughter has both an objective and a
subjective component. [Citation.] The defendant must actually, subjectively, kill under
the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion
are also viewed objectively. As [the California Supreme Court] explained long ago in
interpreting the same language of section 192, ‘this heat of passion must be such a


manslaughter, unlike voluntary manslaughter, requires an intent to kill. (Compare People
v. Lasko (2000) 23 Cal.4th 101, 108 with People v. Montes (2003) 112 Cal.App.4th 1543,
1546-1547.) Because of this requirement, defendant’s suggestion the injuries inflicted in
this case support the inference he lacked the intent to kill and so were more consistent
with attempted voluntary manslaughter than attempted murder, is based on a legally
erroneous premise.


                                             10.
passion as would naturally be aroused in the mind of an ordinarily reasonable person
under the given facts and circumstances,’ because ‘no defendant may set up his own
standard of conduct and justify or excuse himself because in fact his passions were
aroused, unless further the jury believe that the facts and circumstances were sufficient to
arouse the passions of the ordinarily reasonable man.’ [Citation.]” (People v. Steele,
supra, 27 Cal.4th at pp. 1252-1253.) In other words, the victim’s conduct “must be
sufficiently provocative that it would cause an ordinary person of average disposition to
act rashly or without due deliberation and reflection. [Citations.]” (People v. Lee, supra,
20 Cal.4th at p. 59 (plur. opn. of Baxter, J.).)10
       Examining the evidence presented at trial in the light most favorable to the giving
of an instruction on attempted voluntary manslaughter (see People v. King (1978) 22
Cal.3d 12, 15-16), we find that even assuming a reasonable juror could conclude the
subjective component of the heat of passion requirement was shown, there was no
evidence from which it could be concluded the objective component was shown. At
most, the evidence showed defendant may have hit Thomas’s girlfriend’s car with his
own vehicle not long before the shooting; defendant and Thomas argued months earlier
about money defendant owed Thomas; they argued about defendant disrespecting their
mother over the course of several days before, and the morning of, the shooting; they had
a wrestling-type fight, in which no punches were thrown, the night before the shooting;
and Thomas ignored defendant when defendant knocked on his door the morning of the
shooting. Neither these sorts of arguments or this kind of minor physical tussle rise to the
level of provocation necessary to support an instruction on attempted voluntary
manslaughter. (Compare People v. Gutierrez (2009) 45 Cal.4th 789, 826-827 [verbal
argument in which the defendant and victim cursed at each other, followed by scratching

10     There is no additional requirement that an ordinary person of average disposition
“would act rashly in a particular manner, namely, by killing.” (People v. Beltran (2013)
56 Cal.4th 935, 942.)


                                              11.
and kicking, insufficient] & People v. Bloyd (1987) 43 Cal.3d 333, 350 [the defendant
and victim quarreled over course of evening and into early morning; “totality of those
verbal assaults” did not constitute evidence of provocation sufficient to reduce homicide
to manslaughter] with People v. Elmore (1914) 167 Cal. 205, 207-209, 211 [evidence at
most proved manslaughter where fatal wound inflicted solely as result of sudden heat of
passion excited in the defendant by unprovoked attack and violent blows struck by
victim, which included grabbing the defendant by the throat and whirling him around] &
People v. Thomas (2013) 218 Cal.App.4th 630, 645-646 [jury should have been
instructed on voluntary manslaughter due to sudden quarrel or heat of passion where just
before shooting, the defendant was involved in heated argument and physical altercation
with victim and victim’s two companions; the defendant lost the fight and may have been
dragged across parking lot].) Although we may speculate the interactions between
defendant and Thomas were more heated or physical than Thomas admitted,
“[s]peculation is an insufficient basis upon which to require the giving of an instruction
on a lesser offense. [Citations.]” (People v. Wilson (1992) 3 Cal.4th 926, 941; accord,
People v. Rogers (2009) 46 Cal.4th 1136, 1169.)
       Defendant says the absence of an instruction on attempted voluntary manslaughter
created incomplete instructions on the mens rea of attempted murder, in that the jury was
not adequately instructed that the prosecution bore the burden of proving the absence of
heat of passion beyond a reasonable doubt. The prosecution must, of course, prove all
elements of the charged offense beyond a reasonable doubt (Sullivan v. Louisiana (1993)
508 U.S. 275, 277-278), and jury instructions relieving the prosecution of this burden
violate a defendant’s due process rights (Carella v. California (1989) 491 U.S. 263, 265).
Accordingly, the due process clause “requires the prosecution to prove beyond a
reasonable doubt the absence of the heat of passion on sudden provocation when the issue
is properly presented in a homicide case.” (Mullaney v. Wilbur (1975) 421 U.S. 684,
704, italics added; accord, People v. Rios (2000) 23 Cal.4th 450, 462.) The issue is not

                                            12.
“properly presented,” however, where, as here, the evidence was insufficient to entitle
defendant to an instruction on attempted voluntary manslaughter because it did not raise a
reasonable doubt as to whether the attempted homicide was malicious. (People v. Najera
(2006) 138 Cal.App.4th 212, 225; People v. Brooks (1986) 185 Cal.App.3d 687, 696;
People v. Hyde (1985) 166 Cal.App.3d 463, 473-475; see People v. Moye (2009) 47
Cal.4th 537, 563-564 (dis. opn. of Kennard, J.); People v. Breverman, supra, 19 Cal.4th
at pp. 187, 189-190 (dis. opn. of Kennard, J.).)
                                              II
                                   FLIGHT INSTRUCTION
       The People requested that the court instruct on flight, pursuant to CALCRIM
No. 372. Defense counsel objected, arguing the instruction was not supported by the
evidence and presupposed defendant was present at the shooting. The court noted
counsel was free to argue defendant was never there, but the instruction told jurors what
to do if they found he was present and went to another location. It subsequently
instructed the jury:

              “If the defendant fled immediately after the crime was committed or
       after he was accused of committing the crime, that conduct may show that
       he was aware of his guilt. If you conclude that the defendant fled, 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 now contends the giving of CALCRIM No. 372 undermined his state
and federal due process rights to a fair trial. He says the evidence did not support an
inference he fled, and giving the instruction suggested facts not in evidence — that
defendant fled because he was the shooter. Defendant claims that without the instruction,
a rational juror would have realized Thomas’s original statements did not match the
physical evidence. We conclude the trial court did not err by giving the instruction.
       “ ‘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


                                             13.
the jury, will support the suggested inference.’ [Citation.]” (People v. Valdez (2004) 32
Cal.4th 73, 137.) “Instruction on an entirely permissive inference is invalid as a matter of
due process only if there is no rational way the jury could draw the permitted inference.
[Citations.]” (People v. Pensinger (1991) 52 Cal.3d 1210, 1243-1244.)
       “In general, a flight instruction ‘is proper where the evidence shows that the
defendant departed the crime scene under circumstances suggesting that his movement
was motivated by a consciousness of guilt.’ [Citations.] ‘ “[F]light requires neither the
physical act of running nor the reaching of a far-away haven. [Citation.] Flight
manifestly does require, however, a purpose to avoid being observed or arrested.” ’
[Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Evidence a defendant
merely left the scene is not sufficient, standing alone. (People v. Boyce (2014) 59 Cal.4th
672, 690; People v. Bonilla (2007) 41 Cal.4th 313, 328.)
       Whenever the prosecution relies on evidence of a defendant’s flight as tending to
show guilt, an instruction on flight must be given. (§ 1127c.)11 “To obtain the
instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the
scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer
a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla, supra, 41
Cal.4th at p. 328.) The evidence of flight need not be uncontradicted. (People v.
Richardson (2008) 43 Cal.4th 959, 1020.)
       In the present case, evidence was presented that defendant lived in the apartment
complex at which the shooting took place, and was on foot at the time of the shooting.


11      That the United States Supreme Court has recognized there may be reasons for
flight apart from consciousness of guilt (e.g., Illinois v. Wardlow (2000) 528 U.S. 119,
125; Wong Sun v. United States (1963) 371 U.S. 471, 483, fn. 10) does not change this
fact. 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. [Citations.]”
(People v. Cannady (1972) 8 Cal.3d 379, 391-392, fn. omitted.)


                                             14.
He and his car were not found until several hours later. They were some distance from
the scene. Once found, defendant refused, for a significant period of time, to exit the
apartment in which he was located, even though he was repeatedly ordered to do so by
the police. There was no evidence he attempted to aid Thomas or call for assistance after
the shooting, or even attempted to check on Thomas’s well-being.
       Under the circumstances, the jury could have concluded defendant left the scene to
avoid being observed or arrested. (See, e.g., People v. Abilez (2007) 41 Cal.4th 472, 522;
People v. Bonilla, supra, 41 Cal.4th at p. 329; People v. Forsythe (1884) 65 Cal. 101,
104; People v. Mendias (1993) 17 Cal.App.4th 195, 202; cf. People v. Green (1980) 27
Cal.3d 1, 36-37, overruled on another ground in People v. Martinez (1999) 20 Cal.4th
225, 234-237, 239, & disapproved on another ground in People v. Hall (1986) 41 Cal.3d
826, 834, fn. 3; People v. Watson (1977) 75 Cal.App.3d 384, 403.) Consequently, there
was sufficient evidentiary support to warrant the instruction, even though jurors could
have attributed an innocent explanation to defendant’s conduct or rejected Thomas’s
statements to police and so concluded defendant was not even at the scene. (See People
v. Bonilla, supra, 41 Cal.4th at p. 329; People v. Shea (1995) 39 Cal.App.4th 1257, 1270;
People v. Mendias, supra, 17 Cal.App.4th at p. 202.)
       The flight instruction is a cautionary one that benefits the defense “ ‘by
“admonishing the jury to circumspection regarding evidence that might otherwise be
considered decisively inculpatory.” [Citation.]’ [Citation.]” (People v. Leon (2015) 61
Cal.4th 569, 608.) It is neither argumentative nor irrational. (Ibid.) As given in this
case, the instruction assumed neither that flight was established nor that defendant fled;
rather, both existence and significance were left to the jury (People v. Carter (2005) 36
Cal.4th 1114, 1182-1183; People v. Crandell (1988) 46 Cal.3d 833, 870, overruled on
another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365), as was the
determination whether defendant was even present at the shooting (see People v.
Cannady, supra, 8 Cal.3d at p. 392). “The instruction . . . did not presuppose the

                                            15.
commission of the crime charged [citation]; it assumed neither the guilt nor flight of the
defendant [citation]; nor did it withdraw [consideration of] defendant’s [argument
concerning discrepancies between Thomas’s original statements and the physical
evidence] from consideration by the jury.” (People v. Daener (1950) 96 Cal.App.2d 827,
833.) If jurors found defendant was not present at the shooting or that his flight was not
shown, “they would have disregarded the flight instruction as they were also instructed.
[Citations.]” (People v. Richardson, supra, 43 Cal.4th at p. 1020.)12
       The trial court did not err by giving CALCRIM No. 372.
                                     DISPOSITION
       The judgment is affirmed.



                                                                _____________________
                                                                          DETJEN, J.
WE CONCUR:


 _____________________
 GOMES, Acting P.J.


 _____________________
 FRANSON, J.




12     Pursuant to CALCRIM No. 200, jurors were told: “Some of these 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 am in any way suggesting anything about
the facts or the findings you make. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.” (Italics added.)


                                            16.
