Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. LA010427, Kathryne A. Stoltz, Judge.
Ralph H. Goldsen for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
FLIER, J.
Otoniel Chavez appeals from a judgment of conviction of second degree murder. Appellant contends that he was deprived of the continuous and exclusive assistance of an interpreter so as to deny him the right to counsel under the Sixth Amendment and that the trial court erred in giving an unmodified jury instruction that flight may reflect consciousness of guilt. We disagree and therefore affirm.
PROCEDURAL HISTORY
An information charged appellant with murder and alleged appellant personally used a dangerous weapon, a butcher knife, in commission of the murder. A jury found appellant guilty of murder in the second degree and the weapon allegation true. Appellant was sentenced to 16 years to life in state prison. Appellant filed a timely notice of appeal. Appellant’s retained counsel failed to file an opening brief, however, and his appeal was dismissed. Upon motion, this court recalled the remittitur and reinstated appellant’s appeal.
FACTS
On March 22, 1992, the Ortiz family had a small party at their apartment to celebrate the one-year birthday of their son. Appellant and his friend, Luis Acosta, were guests at the party along with the victim, Fausto Leyva. During the party, Acosta and Leyva got into a heated verbal argument in the kitchen. In the midst of the argument, appellant walked into the kitchen, picked up a knife used to slice the birthday cake from the kitchen table and stabbed Leyva once in the upper chest or shoulder. Appellant grasped the knife in a fist and raised it above his shoulder before striking downward. The knife stroke severed Leyva’s lung, punctured his artery and vein and mortally wounded him. He died at the hospital shortly afterwards.
Having stabbed Leyva, appellant ran out of the house with the knife. Once outside, appellant discarded the knife at the foot of the stairway and fled the scene.
The witnesses to the incident informed the police that appellant was the perpetrator, and a warrant was issued for his arrest. But, efforts to find appellant went unsuccessful. In 1999, appellant was located in Guatemala. He was arrested and eventually extradited to the United States to stand trial in 2006.
During the time appellant was at large, a number of witnesses had retired, died or moved. However, two persons who had attended the party and witnessed appellant stabbing Leyva remained available and testified at trial that appellant was the perpetrator.
Appellant did not offer any evidence in defense.
DISCUSSION
1. Deprivation of Continuous and Exclusive Assistance of Interpreter
Appellant contends he was deprived of the effective assistance of an interpreter to such an extent that he was denied his Sixth Amendment right to counsel. Specifically, appellant argues that on the third day of trial his interpreter was “borrowed” in order to assist two Spanish speaking witnesses. We disagree.
The clerk’s minute order indicates Andrea Alba was present as a court interpreter on the third day of trial to assist the witnesses. The reporter’s transcript for that same day shows that Carmen Bellas was present as a court interpreter to assist appellant. When the prosecutor stated witness Raul Ortiz would need the assistance of an interpreter, the court inquired: “The interpreters [plural] know that, don’t you, that the witness needs an interpreter?” The record shows that witness Ortiz, and later witness Miguel Catalan, were assisted by a Spanish-speaking interpreter. Thus, two court interpreters were present in the courtroom that day, and, although the record is not without ambiguity, we infer that one interpreter was present to assist appellant and one interpreter was present to assist the witness.
A person who is unable to understand English and is charged with a crime has a right to an interpreter throughout the proceedings against him. (People v. Aguilar (1984) 35 Cal.3d 785, 790.) The right to an interpreter derives from a defendant’s state and federal constitutional rights, including the right of due process, to confrontation, to effective assistance of counsel and to be present at trial. (People v. Rodriguez (1986) 42 Cal.3d 1005, 1011.) A violation of these rights may result when an interpreter is wrongfully withheld. (Ibid.) The burden is on the defendant to demonstrate the denial of effective assistance of an interpreter prejudiced his case or denied him a fair and impartial trial. (Id. at p. 1012.)
The denial of an interpreter may range from the complete failure to provide an interpreter to a momentary absence of an interpreter at an insignificant moment in the proceedings. (People v. Rodriguez, supra, 42 Cal.3d at p. 1012.) Accordingly, the appropriate test to apply when a defendant claims denial of an interpreter is whether “the appellate court is ‘able to declare a belief that it was harmless beyond a reasonable doubt.’” (Ibid., quoting Chapman v. California (1967) 386 U.S. 18, 24; see also People v. Chavez (1991) 231 Cal.App.3d 1471, 1477-1478 [deprivation of individual interpreter during reading of jury instructions found harmless beyond reasonable doubt]; People v. Baez (1987) 195 Cal.App.3d 1431, 1433, 1435 [Chapman harmless error standard applied to trial court’s error in borrowing defendant’s interpreter to act as interpreter for prosecution and defense witnesses].) Prejudice must be apparent from the record, and “[t]he test is whether an actual material interference with the defendant’s rights has been shown or even asserted.” (People v. Rodriguez, supra, 42 Cal.3d at p. 1014, fn. 6.)
Here, the record fails to affirmatively show that appellant was not assisted by an interpreter during the testimony of two witnesses on the third day of trial. Appellant points to discrepancies in the clerk’s transcript and reporter’s transcript, such as conflicting references to an interpreter (singular) or interpreters (plural) on that day. However, the record supports the inference there was more than one interpreter present that day. The clerk’s transcript states that Alba was present as court interpreter, and the reporter’s transcript reflects that Bellas was present to assist appellant as an interpreter. The trial court also referred to “interpreters” when informed a witness required an interpreter.
Appellant does not allege in his brief that he failed to understand any of the proceedings. There is nothing in the record showing he had difficulty communicating with his counsel or the court. He had ample opportunity during the trial to make known any deficiencies, but the record is silent in this regard. Moreover, appellant does not appear to allege any actual inability to communicate with his trial counsel during the testimony of these two witnesses. Appellant does not allege in his opening brief he failed to understand any of the proceedings during such testimony.
To the extent appellant raises an inability to communicate with his counsel, the issue more properly should be addressed by a writ of habeas corpus in which appellant may offer “any relevant evidence not appearing on the face of the record.” (People v. Rodriguez, supra, 42 Cal.3d at p. 1016.)
On this record, there is no showing of any error with respect to the provision of a Spanish language interpreter to appellant, nor has appellant shown prejudice even assuming any such error occurred.
2. Flight Instruction
After the conclusion of testimony and closing arguments, the trial court instructed the jury in accordance with CALCRIM No. 372, as follows: “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.”
Appellant contends it was error under the circumstances for the trial court to give an unmodified pattern instruction that flight may reflect consciousness of guilt and his counsel was ineffective for failing to object to the given instruction. We disagree.
In general, a flight instruction is proper when the evidence shows that the defendant leaves the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) A defendant’s mere return to familiar environs from a crime scene does not warrant an inference of a consciousness of guilt, “‘but the circumstances of departure from the crime scene may sometimes do so.’ [Citations.]” (Ibid.) A flight instruction may be given if there is sufficient evidence from which a jury could infer the defendant fled out of guilty knowledge. (People v. Lucas (1995) 12 Cal.4th 415, 471.) A proper instruction leaves for the jury to determine whether flight occurred, what weight to give the evidence, and whether there was an alternative explanation for the defendant’s leaving. (People v. Bradford, supra, 14 Cal.4th at p. 1055; People v. Crandell (1988) 46 Cal.3d 833, 870, overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.)
Appellant asserts the trial court should have modified the flight instruction sua sponte. Appellant asserts that the problem with giving the pattern instruction in unmodified form is that it assumes the defendant has been correctly identified; yet, counsel’s cross-examination and argument suggested the 15-year lapse between the charged offense and trial raised “substantial” issues concerning the accuracy of the current identifications of appellant. Relying on an admittedly overruled line of authority beginning with People v. Anjell (1979) 100 Cal.App.3d 189, 199-201, overruled in People v. Mason (1991) 52 Cal.3d 909, 943, footnote 13, appellant contends it was error for the court to give the unmodified flight instruction because identification was the only issue in this case. That is not the appropriate standard.
Appellant argues the modification should have stated in substance: “You cannot consider evidence of flight until you have concluded beyond a reasonable doubt that defendant has been correctly identified. Evidence of flight is not evidence of the reliability of an identification.”
In instances when identity is at issue, a flight instruction is proper when there is substantial evidence of flight by the defendant, apart from his identification as the perpetrator, from which the jury reasonably could infer a consciousness of guilt. (People v. Pensinger (1991) 52 Cal.3d 1210, 1245.) The evidence of flight need not be distinct from evidence of identity. (Ibid.) “If there is evidence identifying the person who fled as the defendant, and if such evidence ‘is relied upon as tending to show guilt, ’ then it is proper to instruct on flight.” (People v. Mason, supra, 52 Cal.3d at p. 943.) For such instruction, the prosecution need not prove the defendant in fact fled, but 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 ; see People v. Mendoza (2000) 24 Cal.4th 130, 180-181 [jury properly instructed it may consider flight in connection with all other proven facts, giving fact of flight weight it deems appropriate].)
The evidence in this case overwhelmingly pointed to appellant as the perpetrator, and the lapse of time did not affect the witnesses’ identification of appellant. Both of the eyewitnesses testified they saw appellant wielding the knife and striking the victim. Both witnesses picked out appellant from a photographic “six pack” shortly after the crime. Witness Ortiz stated at trial he knew appellant and witnessed him commit the crime. Witness Catalan stated his recollection of the events was accurate and the incident had been “engraved” in his mind. Despite appellant’s contention that Ortiz and Catalan had “pronounced weaknesses” in their trial accounts, they were certain of their identification of appellant. As the evidence showed appellant fled the scene after stabbing Leyva and, ultimately, was apprehended and extradited from Guatemala, the trial court did not err in giving the unmodified flight instruction. (People v. Pensinger, supra, 52 Cal.3d at p. 1245; People v. Mason, supra, 52 Cal.3d at p. 943.)
Appellant had been arrested shortly before this incident, and the police had a recent mug shot of appellant available for the photographic lineup, even if appellant himself was at large.
Moreover, there was nothing in the court’s instruction mandating that the jury consider flight as evidence of appellant’s guilt. As the instruction plainly explained, the meaning and importance of appellant’s conduct was for the jury to decide. There was substantial evidence of defendant’s flight apart from his identification as the perpetrator from which the jury could reasonably infer a consciousness of guilt.
DISPOSITION
The judgment is affirmed.
We concur: BIGELOW, P. J. GRIMES, J.