Opinion
G044944
05-11-2012
THE PEOPLE, Plaintiff and Respondent, v. SCOTT JOHN HENDERSON, Defendant and Appellant.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10CF1780)
OPINION
Appeal from a judgment of the Superior Court of Orange County, John Conley, Judge. Affirmed.
David McNeil Morse, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Nguyen Tran, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury convicted John Scott Henderson of one count of second degree robbery. (Pen. Code, §§ 211, 212.5, subd. (c).) After Henderson admitted two prior strike allegations, the trial court sentenced him to a total of nine years in prison.
Henderson raises a single ground for reversal: He argues the trial court erred by instructing the jury with CALCRIM No. 372 (the flight instruction). We conclude any error in giving the flight instruction was harmless and therefore affirm.
II.
FACTS
On Friday, July 2, 2010, at about 5:45 p.m., Tyron Jackson pulled his car into the parking lot of a liquor store at the intersection of Williams Street and McFadden Avenue. Both streets and the parking lot were busy with foot and motor traffic. As Jackson stepped out of his car, a man wearing shorts and a yellow sleeveless shirt, later identified as Henderson, approached and asked Jackson for directions. Jackson, who was holding a cell phone in one hand, stepped toward the rear of his car to assist Henderson. Jackson did not feel threatened at that point; Henderson was behaving in a friendly manner, it was broad daylight, and Jackson often was asked for directions.
Jackson started to become suspicious, however, when Henderson asked him if he wanted to make some "extra money." Henderson came closer to Jackson, who now could smell alcohol on Henderson's breath. Henderson suddenly changed his demeanor from friendly to serious. He grabbed an object in the right side pocket of his shorts and told Jackson, "[g]ive me your wallet." Not knowing whether the object was a gun, Jackson was afraid and did not want to get hurt, so he handed his wallet to Henderson, who snatched the wallet out of Jackson's hand and walked away toward McFadden Avenue. Jackson ran back to his car and drove off.
After driving a short distance, Jackson stopped, dialed 911, and told the 911 operator he had been robbed by a black man wearing a yellow shirt. While Jackson was speaking with the 911 operator, he saw Henderson, holding what appeared to be a new pack of cigarettes, walking down the street from the liquor store. Jackson screamed at Henderson, "you stole my wallet and I'm calling the cops on you." Henderson replied, "I didn't steal nothing. . . . I don't know what you're talking about," and continued walking.
Henderson tossed an object on the ground as he disappeared into an apartment complex. Jackson retrieved the object, which turned out to be his wallet. He inspected the wallet and noticed his ATM card and cash were missing.
Tustin Police Officers Brian Miali and Gordon Marguiles, in separate patrol cars, appeared at the scene in response to the 911 call. Officer Miali spoke with Jackson and obtained a description of Henderson, while Marguiles, who had obtained a description from the dispatcher, proceeded directly to the apartment complex. Officer Marguiles entered the apartment complex with another police officer and saw Henderson walking with another man. The officers detained Henderson, and Jackson identified him as the robber.
III.
DISCUSSION
Over Henderson's objection, the trial court instructed the jury with CALCRIM No. 372, as follows: "Flight. If the defendant fled or tried to flee immediately after the crime was committed that conduct may show 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."
Henderson argues the trial court erred by giving the flight instruction because there was insufficient evidence to establish he left the crime scene under circumstances suggesting he was motivated by consciousness of guilt. (See People v. Bradford (1997) 14 Cal.4th 1005, 1055.) We do not resolve whether the evidence was sufficient to support giving the flight instruction because if the flight instruction were given in error, the error was harmless.
Instructional error, such as error in giving the flight instruction, is reviewed for prejudice under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Silva (1988) 45 Cal.3d 604, 628; People v. Mendias (1993) 17 Cal.App.4th 195, 202.) Thus, reversal is required only if we determine a result more favorable to Henderson would have been reasonably probable if the trial court had not given the flight instruction. (People v. Watson, supra, 46 Cal.2d at p. 836.)
The evidence of Henderson's guilt was overwhelming. Robbery is the felonious taking of personal property from a person against his or her will, "accomplished by means of force or fear." (Pen. Code, § 211.) Jackson testified that Henderson, who was much larger than he was, demanded his wallet while grabbing an object in his pocket which might have been a gun. Jackson did not willingly give his wallet to Henderson, and testified he was afraid and did not want to be hurt. There was no question of identity: Jackson had a good look a Henderson, described him to the 911 operator, and identified him after he was apprehended by the police. A result more favorable to Henderson would not have been reasonably probable if the trial court had not given the flight instruction.
In addition, the flight instruction informed the jury it could infer consciousness of guilt only if it first concluded Henderson fled the crime scene immediately after commission of the crime. The flight instruction left to the jury the decision whether Henderson had, in fact, fled. "[T]he instruction did not assume that flight was established, leaving that factual determination and its significance to the jury." (People v. Visciotti (1992) 2 Cal.4th 1, 61 [CALJIC No. 2.52].)
IV.
DISPOSITION
The judgment is affirmed.
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FYBEL, J.
WE CONCUR:
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BEDSWORTH, ACTING P. J.
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IKOLA, J.