APPEAL from a judgment of the Superior Court of Sacramento County, Troy L. Nunley, Judge. Affirmed as modified. (Super. Ct. No. 07F09069).
The opinion of the court was delivered by: Robie , J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Convicted of second degree robbery and placed on five years‟ probation, defendant Tacare Desean Paysinger appeals, arguing: (1) the flight instruction the trial court gave (CALCRIM No. 372) was unconstitutional and not supported by substantial evidence; (2) his conviction must be reduced to grand theft because that was all the actual perpetrator (co-defendant Pham) was convicted of; and (3) the weapons and gang conditions of his probation are unconstitutionally vague and/or overbroad.
In the published portion of our opinion, we reject defendant‟s challenge to the constitutionality of CALCRIM No. 372. In the unpublished portion of our opinion, we agree with some of defendant‟s arguments regarding his probation conditions and will modify those conditions accordingly; otherwise, we reject defendant‟s arguments and will therefore affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
On a late afternoon in September 2007, Mary Harris was in her car, which was parked near the Gottschalks store at El Camino and Watt Avenues in Sacramento. As she was waiting for a call on her cell phone, she saw two men about 20 feet away "kind of wandering in the general direction of [her] car." One of the men was an African-American, about 17 or 18 years old, wearing a dark "hoodie." The African-American man moved toward the passenger side of her car while she lost sight of the other man. As she reached to start the car, a man whom Harris believed to be the other man she had seen walking toward her car appeared at her window with his hand under his shirt and said, "give me your purse, bitch." Harris "kind of froze for just a second," and the man said, "give me your [purse] or I‟ll kill you," as he tapped a gun on the car window. Harris handed him her purse, and he turned and ran back in the direction from which he had come.
A witness in a nearby pickup truck saw the two men walking together, then heard, faintly, "give me your purse." He then saw two men running away, one holding a purse.
Another witness saw defendant, wearing a dark hooded sweatshirt, walking in the parking lot. She later saw defendant and another man, whom she identified as co-defendant Pham, running; defendant was holding a purse, which he shoved under his shirt. They ran around the other side of a van, and when the van drove away, the men were gone, so she assumed they had jumped inside. As the witness was later driving away from the mall, she spotted the van again. The witness called 911 and followed the van. As she did so, she saw defendant and Pham pulling items out of the purse. The witness continued following the van on El Camino Avenue and then on Fulton Avenue until the van pulled into a parking lot and was surrounded by police cars. Two people, one of whom was a Black male wearing a black hooded sweatshirt, jumped out of the van and ran toward a nearby business called Goore‟s.
An employee of Goore‟s saw a person with a black "hoodie" in the store. After hearing from a co-worker that the person had gone into the bathroom, the employee checked the bathroom and found the hoodie hidden under the trash bag in the trash can.
Upon receiving information that a Black male had left Goore‟s and gone to a nearby Burger King, the police found defendant there and arrested him.
Defendant, Pham, and another individual were charged with robbery, and it was alleged that a handgun was used in the commission of the crime. Defendant and Pham were tried together using separate juries. Pham‟s jury found him not guilty of robbery but guilty of the lesser offense of grand theft.
The jury also found the firearm allegation was not true. Defendant‟s jury found him guilty of second degree robbery and found the firearm allegation was true. The trial court suspended imposition of sentence and placed defendant on five years‟ probation subject to various conditions. Defendant filed a timely notice of appeal.
I. CALCRIM No. 372 -- The Flight Instruction
The trial court instructed the jury with CALCRIM No. 372, as follows: "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 or tried to flee, it is up to you to decide the meaning and importance of that conduct. [¶] However, evidence that the defendant fled or tried to flee cannot prove guilt by itself."
On appeal, defendant contends "CALCRIM No. 372 is unconstitutional because it deprives a defendant of the presumption of innocence and the rights to a jury trial and proof beyond a reasonable doubt." He also contends the instruction should not have been given because ...