IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
August 30, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ARTHUR OCHOA, DEFENDANT AND APPELLANT.
(Super. Ct. No. 094672)
The opinion of the court was delivered by: Robie , J.
P. v. Ochoa
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Arthur Ochoa guilty of willful infliction of corporal injury on a cohabitant and false imprisonment with force and violence. The trial court sentenced him to a total of six years in prison.
Defendant appeals, contending that the trial court erred in instructing the jury on flight and the error was prejudicial. Finding no prejudice, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and Belinda Humackich, who prefers to go by Pridemore, were a couple in a sexual relationship and had been living together for about two months prior to October 3, 2009. One morning, defendant awoke in the living room and began "yelling" about "crazy things." The couple yelled at each other and the argument "escalated, and it got heated, and it got worse." Defendant and Pridemore "wrestled around" and defendant wrapped his hand in a shirt and punched Pridemore in the face. As a result, Pridemore suffered a "fat lip." Defendant prevented Pridemore from leaving the apartment by "barricad[ing]" her in. Pridemore attempted to leave when defendant went to the bathroom, but defendant caught up to her in the driveway and "yanked [her] back [into the house] by [her] hair." Defendant "proceeded to throw [Pridemore's] stuff out of the house, and then he shut the door and wouldn't let [her] leave."
At some point, defendant left in his van to his father's house, and Pridemore approached her neighbor, Bernard Kanowsky and asked him to call the police. He made the call. Kanowsky said he saw defendant yelling, throwing items, and raising a fist but not actually punching Pridemore outside.
Pridemore tried to collect her things, but defendant returned, "threw" Pridemore and her belongings in a dumpster, "and then he took off again."
When responding West Sacramento Police Officer Josh Carruth arrived, Pridemore was in the dumpster recovering her property and defendant was not there. Pridemore was "a little distraught" and "[c]rying a little bit." She had a "small abrasion to her mouth area approximately the size of a dime." About 10 minutes after the officer arrived, defendant returned, and the officer placed him under arrest.
Defendant's ex-wife, Susan Mills, testified she had married defendant in April 2000 and divorced him in 2003. The couple divorced after an incident during which defendant "got really physically abusive" toward Mills. After the incident, Mills went to the police with "visible injuries" and had defendant arrested.
Defendant did not testify.
The Flight Instruction
Over objection by defendant, the trial court included the following instruction to the jury: "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." (CALCRIM 372.) Defendant contends the flight instruction was not proper because there was insufficient evidence of flight and the error in giving the instruction was prejudicial.
"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."' [Citations.] 'Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.'" (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Even if there were an error in giving the flight instruction, however, the jury's verdict must stand unless "it is not reasonably probable a result more favorable to [the] defendant would have been reached absent such an error." (People v. Silva (1988) 45 Cal.3d 604, 628, citing People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant contends there was "no evidence" he was aware "Ms. [Pridemore] had any intention of calling the police" and therefore "his leaving was not motivated by a desire to avoid observation or arrest." He further argues that "the inference of flight becomes nonsensical" here because he established a "pattern" of "leaving and return[ing]," which precludes any inference that he was avoiding "'observ[ation] or arrest.'" Defendant contends his actions did not demonstrate consciousness of guilt, but rather "a perverse sense of entitlement which permeates so many domestic disputes."
We need not decide whether the trial court erred in giving the flight instruction, because even if the court erred, the error was not prejudicial because it is not "reasonably probable that a result more favorable to defendant would have been reached absent [the] error." (People v. Silva, supra, 45 Cal.3d at p. 628.) This is the case because, on the evidence here, a reasonable jury would not have concluded that there was flight and also "[t]he instruction did not figure in the prosecutor's closing argument . . . ." (People v. Crandell (1988) 46 Cal.3d 833, 870.)
The primary issue for the jury to decide here was not whether defendant fled, but rather whether he: (1) willfully inflicted corporal injury on a cohabitant; and (2) falsely imprisoned her with force and violence. In deciding this, the jury was aware of the following facts: Pridemore testified defendant punched her in the face, dragged her inside by her hair, forced her to stay inside the house, threw her belongings outside, threw her in a dumpster, and drove away and returned twice. Kanowsky testified he called the police and witnessed some fighting in the driveway. Officer Carruth testified Pridemore was in the dumpster retrieving her belongings when he arrived, there was "an abrasion" on Pridemore's face, and defendant was not at the scene when he arrived. Last, Mills testified defendant was abusive in her relationship with him.
Defendant has not persuaded us the result of the case would have been more favorable to him absent the flight instruction. Defendant argues "there was no evidence to corroborate [Pridemore's] testimony regarding count two, false imprisonment." To support this contention, defendant labels Pridemore a "suspect witness" and apparently believes the flight instruction prejudiced the jury to believe Pridemore's testimony pertaining to her false imprisonment. Defendant believes the result of this prejudice is the jury's guilty verdict for false imprisonment. We disagree.
The flight instruction advised the jury, "[i]f you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct[,]" leaving it to the jury to decide whether flight occurred. Additionally, the jury was instructed "[s]ome of these instructions may not apply." Notably, "instructions are not considered in isolation. Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury." (People v. Holt (1997) 15 Cal.4th 619, 677.) Accordingly, the jury was charged with weighing the evidence that defendant left and returned to the scene as it saw fit. By defendant's own argument, it would have been "nonsensical" for the jury to conclude he fled because there is no evidence of flight. We agree that, on the facts here, a reasonable jury would not have concluded that by twice leaving the scene of his crimes, but then returning to the scene both times, defendant was trying to avoid being observed or arrested.
Moreover, the People did not "figure" flight into the closing argument. (See People v. Crandell, supra, 46 Cal.3d at p. 870.) In fact, the People never argued flight. Because flight was never argued and only first mentioned in the instructions, it is most likely the jury would have decided that the instruction did "not apply" pursuant to other instructions it received.
We believe the most reasonable conclusion here is that the jury disregarded the flight instruction because there was no evidence or argument pertaining to flight and, therefore, the instruction could not have been prejudicial. There was ample testimony for the jury to weigh and substantial instruction on how to do so. That testimony amply supports the verdict rendered. It is not "reasonably probable" that the flight instruction was, as defendant contends, "the straw that broke the camel's back" because we believe the jury would have reached the same conclusion had the flight instruction not been given. (People v. Silva, supra, 45 Cal.3d at p. 628.)
The judgment is affirmed.
We concur: NICHOLSON , Acting P. J. DUARTE , J.
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