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People v. Durango4/2/2003
ant's conviction.
The Trial Court Properly Gave the Flight Instruction, CALJIC No. 2.52
Defendant next argues the evidence of his "post-offense conduct" did not support instructing the jury with CALJIC No. 2.52.
CALJIC No. 2.52, commonly known as the "flight" instruction, provides: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which such circumstance is entitled is a matter for you to decide."
The 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.]" (People v. Ray (1996) 13 Cal.4th 313, 345.) " 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." (People v. Crandell (1988) 46 Cal.3d 833, 869, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Here, the evidence at trial supported the instruction. Young initially tried to call 911, but defendant grabbed the phone away from her. Before he returned the phone to her, he told her she could call anyone she wanted once he left. He also admitted he took his clothes and stayed with his brother after he left Young's house, even though he told Young she knew where to find him. Lastly, he admitted that he moved back into his own residence only after he learned the police had no pending case against him. Defendant's post-offense activities were consistent with a person seeking to avoid detection or arrest and justified the court instructing the jury on flight.
The Trial Court Did Not Commit Prejudicial Error When It Denied the Defense Request for Instructions on Assault and Battery
Defendant argues the court erroneously denied his request for jury instructions on the lesser included offenses of assault and battery. (Pen. Code, §§ 240, 242.) He suggests the jurors may have convicted him of rape by intoxication because they believed he did something, but had no option of conviction of any lesser offense. He argues the jury was presented with an "unwarranted all-or-nothing choice" that resulted in his conviction. (See People v. Wickersham (1982) 32 Cal.3d 307, 324.)
The court denied the request for instructions on assault and battery because "to instruct on those would be basically inconsistent with the defense, which was that . . . he alleged victim consented to the act so there was no crime at all. Not any lesser and not a greater." Relying on People v. Breverman (1998) 19 Cal.4th 142, 162, the court opined there was no need to instruct on the lesser included offenses because the instant case "truly was an all or nothing situation. If the People's version is believed, then defendant is guilty of the crimes charged. And if the defense is believed, the defendant is not guilty of any crimes."
Breverman, summarizing a long line of cases held "the 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 offe
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