Filed 3/8/16 P. v. Chun CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA

THE PEOPLE,                                                         D067858

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD258555)

WILLIAM CHUN,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, David M.

Rubin, Judge. Affirmed.


         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G.

McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and

Respondent.
       A jury convicted William Chun of possession of methamphetamine (Health & Saf.

Code, § 11377, count 1),1 and possession of a firearm by a felon (Pen. Code, § 29800,

subd. (a)(1), count 2.) The trial court gave Chun credit for time served on count 1 and

sentenced him to a term of four years in state prison on count 2. Chun appeals,

contending (1) there was insufficient evidence to support the convictions under both

counts, and (2) the trial court committed prejudicial error in giving a jury instruction on

flight. We affirm.

                     FACTUAL AND PROCEDURAL BACKGROUND

A.     Prosecution's Case

       Early on the morning of September 11, 2014, law enforcement officers executed a

search warrant on the residence of Kristian Childs, a friend of Chun's, who had been

arrested the day before on drug-related offenses. Chun, a convicted felon, did not live at

the house, but frequently stayed there.

       When officers arrived, they knocked on the front door and announced their

presence. No one answered, but a person inside ran across the room toward the side of

the house. As officers entered the front door, there was a commotion at the side of the

house and Chun and another person, Karen O'Leary, rushed out of a side door. One

officer yelled for them to stop, but they continued walking until two officers detained and

handcuffed them.




1      Possession of methamphetamine was a lesser included offense in the count 1
charge of possession of a firearm by a person who possessed a controlled substance
(Health & Saf. Code, § 11370.1, subd. (a).)
                                            2
       After detaining all present occupants, the officers searched the house. In the

kitchen, officers discovered a backpack containing a .22 caliber gun, three bottles of

prescription medication in Chun's name, ammunition, a torch lighter commonly used for

smoking methamphetamine, and other miscellaneous items. In the living room, officers

found a usable amount of methamphetamine inside a pack of Camel cigarettes, which

was sitting on top of Chun's wallet. After the search, an officer interviewed Chun and he

admitted to smoking cigarettes, but only when other people provided them.

B.     Defense Case

       At trial, the defense contended that Chun did not own the backpack, firearm or

methamphetamine, noting that the items were found in places easily accessible to all

occupants of the house.

       Childs testified that the backpack containing the firearm belonged to Adrian

Roberts, another resident of the house, because he had seen the backpack in Roberts's

truck multiple times. Childs also testified that Chun's prescription medications are

normally stored on the kitchen counter where O'Leary, Roberts's girlfriend, was cleaning

the day before the search, making it easy for her to move the bottles into the backpack.

Furthermore, the backpack also contained female costume jewelry, suggesting the

backpack and firearm belonged to a female.

                                      DISCUSSION

                                  I. Sufficiency of Evidence

       Chun contends there was insufficient evidence to support his convictions for

possession of methamphetamine and felon in possession of a firearm. We disagree.

Substantial evidence supported the convictions on both counts.
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A.     Legal standards for establishing sufficiency of the evidence for possession

       When considering a challenge to the sufficiency of the evidence, we review the

entire record in the light most favorable to the judgment to determine whether the record

contains substantial evidence from which any rational trier of fact could find the essential

elements of the crime beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th

327, 357; People v. Johnson (1980) 26 Cal.3d 557, 576.) We do not reweigh evidence or

reassess a witness's credibility, and we presume the existence of every fact the trier of

fact could reasonably deduce from the evidence. (People v. Lindberg (2008) 45 Cal.4th

1, 27.) Even if the circumstances might also be reasonably reconciled with a contrary

finding, we do not reverse as long as the evidence reasonably justifies the jury's findings.

(People v. Nelson (2011) 51 Cal.4th 198, 210.) This standard applies whether direct or

circumstantial evidence is involved. (People v. Prince (2007) 40 Cal.4th 1179, 1251.)

       To prove a defendant guilty of possession of methamphetamine, the prosecution

must show: "(1) defendant exercised control over or the right to control an amount of

methamphetamine; (2) defendant knew of its presence; (3) defendant knew of its nature

as a controlled substance; and (4) the substance was in an amount usable for

consumption." (People v. Tripp (2007) 151 Cal.App.4th 951, 956, italics omitted.)

Exclusive possession is not necessary and each of the elements may be proven by

circumstantial evidence. (People v. Busch (2010) 187 Cal.App.4th 150, 161; People v.

Palaschak (1995) 9 Cal.4th 1236, 1242.)




                                              4
        The crime of felon in possession of a firearm requires "conviction of a felony and

ownership or knowing possession, custody, or control of a firearm." (People v. Blakely

(2014) 225 Cal.App.4th 1042, 1052.) "Possession may be either actual or constructive as

long as it is intentional." (People v. Spirilin (2000) 81 Cal.App.4th 119, 130.) Exclusive

possession is not required and such possession may be proven through circumstantial

evidence. (People v. Williams (2009) 170 Cal.App.4th 587, 625; People v. Nieto (1966)

247 Cal.App.2d 364, 368.)

B.      Sufficient evidence supported both possession convictions

        Chun argues there was insufficient evidence to show he possessed either the

methamphetamine or the firearm. Chun primarily relies on Childs's testimony that the

backpack belonged to Roberts. He asserts that O'Leary, while cleaning the kitchen the

day before the search, likely moved the three prescription bottles from their usual place

on the kitchen counter into the backpack. Chun further argues the female costume

jewelry inside the backpack shows someone else owned the backpack. He also contends

that the methamphetamine and firearm were located in common areas of the house

readily accessible to all occupants.

        Chun's arguments, however, merely present an alternate interpretation of the facts

and ignore evidence supporting the convictions. Essentially, Chun asks us to reweigh the

evidence. This we cannot do. (People v. Lindberg, supra, 45 Cal.4th 1, 27.) Simply put,

Chun's contentions do not overcome the substantial evidence of guilt that was presented

at trial.




                                             5
       On this record, the jury, as finder of fact, reasonably rejected Chun's evidence. At

trial, the prosecution questioned Childs's credibility as a witness by showing he had

previously untruthfully asserted that drugs that were actually his belonged to Roberts.

The jury could properly disregard Childs's testimony regarding the backpack and instead

rely on officer testimony. (See People v. Blassingill (1988) 199 Cal.App.3d 1413, 1419.)

Further, the jury could have viewed the female costume jewelry as irrelevant because the

backpack contained random "junk" that Chun could have easily obtained cleaning out

houses, a job he occasionally performed for Childs's mother. Finally, it is

inconsequential that the drugs and firearm were found in common areas of the house

because exclusive control is not required to determine Chun possessed both items.

       Beyond that, there was substantial evidence affirmatively connecting Chun to the

methamphetamine and the firearm. Because the methamphetamine was in a pack of

cigarettes that was sitting on top of Chun's wallet, and because he admitted to smoking

cigarettes, the jury reasonably found that the drugs belonged to Chun. Likewise, because

the backpack contained three bottles of prescription medication in Chun's name, the jury

reasonably inferred that the firearm in the backpack was also his. In addition, both the

methamphetamine and firearm were found in a house where Chun frequently slept, kept

his daily medication, and was present on the day of the search. Although Chun denied he

was a permanent resident, he was not a mere visitor. (See People v. Glaser (1995) 11

Cal.4th 354, 368; People v. Hannah (1996) 51 Cal.App.4th 1335, 1347 [recognizing

more protection for "mere visitors" during a search].) Lastly, Chun attempted to leave

the house when officers arrived for the search, suggesting a consciousness of guilt. The

evidence was sufficient to justify the jury's convictions.
                                              6
                                      II. Flight Instruction

       Chun next contends that the trial court committed prejudicial error in providing the

standard jury instruction on flight, CALCRIM No. 372. We disagree. The flight

instruction was not given in error; and even if it was error, it was not prejudicial.

A.     Legal standard for flight instruction

       CALCRIM No. 372, given to the jury in this case, states "If the defendant fled or

tried to flee 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 trial court has a statutory obligation to instruct the jury

on flight whenever the prosecution relies on evidence of flight as tending to show guilt.

(Pen. Code, § 1127c; People v. Mendoza (2000) 24 Cal.4th 130, 179.)

       "[F]light requires neither the physical act of running nor the reaching of a far-away

haven." (People v. Bradford (1997) 14 Cal.4th 1005, 1055, internal quotation marks

omitted.) It does require a purpose to "avoid being observed or arrested." (Ibid.) "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." (People v. Bonilla (2007)

41 Cal.4th 313, 328.) On appeal, a reviewing court determines whether there was

sufficient evidence from which a jury could have reasonably inferred that the defendant

fled. (People v. Lutz (1980) 109 Cal.App.3d 489, 498.)




                                               7
        Further, we apply the harmless error standard in reviewing an instructional

error for prejudice. (People v. Watson (1956) 46 Cal.2d 818, 835-836; People v. Silva

(1988) 45 Cal.3d 604, 628.) That is, an appellant must show a reasonable probability

a result more favorable to him would have been reached absent the instruction. (Pool

v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)

B.      There was no error in giving the flight instruction

        Chun argues there was insufficient evidence of flight on the day of the search

because he and O'Leary were walking, not running, out of the house's side door and they

immediately stopped when told to stop.2 Regardless of these facts, which were

contested, there was other evidence from which the jury could reasonably infer that Chun

fled.

        The officers announced their presence by knocking on the front door and rather

than answer the door, someone inside ran across the room. As officers entered through

the front door, there was a commotion at the side of the house and then Chun and

O'Leary exited through a side door. An officer yelled for them to stop, subsequently

detaining and handcuffing them. Even assuming the two were walking and

immediately stopped after the officer's command, the jury could reasonably infer from

the evidence that Chun was leaving the house through the side door to avoid police

detection. The trial court did not err in giving the flight instruction.




2    On cross examination, the testifying officer was unsure whether Chun and O'Leary
immediately stopped or continued walking after he commanded them to stop.
                                           8
C.     Even assuming the instruction was error, it was not prejudicial

       Chun argues the instruction was prejudicial because, given the closeness of the

case, "the flight instruction could very easily have tipped the balance where the evidence

was otherwise equal." We disagree.

       CALCRIM No. 372 does not assume the flight of the defendant, or that any such

flight, if established, indicates guilt. The very terms of the instruction require the jury

first to decide whether it believed the defendant actually fled. Only if the jury makes that

preliminary finding does it proceed to decide the significance of that conduct. Further,

the instruction benefits a defendant by cautioning the jury that flight, alone, cannot prove

guilt. (See People v. Boyette (2002) 29 Cal.4th 381, 438 ["The cautionary nature of the

instruction[ ] benefits the defense, admonishing the jury to circumspection regarding

evidence that might otherwise be considered decisively inculpatory."].) Given the

permissive and cautionary nature of the instruction and the significant evidence of Chun's

guilt, Chun has not demonstrated a reasonable probability that he would have obtained a

more favorable verdict absent that instruction.




                                              9
                                     DISPOSITION

      The judgment is affirmed.


                                                                           PRAGER, J.*

WE CONCUR:


HUFFMAN, Acting P. J.


HALLER, J.




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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