Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR-196068.
Dondero, J.
Defendant’s motion to suppress evidence was denied and he was convicted following a jury trial of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). In this appeal, defendant renews his objection to the seizure of cocaine, claims that the prosecutor improperly excused a potential juror for reasons related to race, objects to the flight instruction given by the trial court, and asserts that the prosecutor committed misconduct. We find that the cocaine was not seized as the result of an unlawful detention of defendant. We also conclude that the challenged juror was challenged for race-neutral reasons, the flight instruction was warranted, and no prosecutorial misconduct was committed. We therefore affirm the judgment.
STATEMENT OF FACTS
Late in the afternoon on February 9, 2008, Vallejo Police Officers Jason Potts and Sanjay Ramrakha were on patrol in the “Country Club Crest” neighborhood of Vallejo, a residential “high crime area” known for “lots of arrests for drug violations.” The officers were in a black Ford Crown Victoria vehicle which was unmarked, but equipped with visible spot lamps on both front doors, an overhead red signal light, emergency lights inside the grill, strobe lights and siren. The officers were wearing blue police shirts with “Vallejo Police” patches in large bold letters on the sides and back, badges, blue jeans and black boots. One of the officers was also wearing a “balaclava” over his head as part of a undercover drug operation.
As the officers turned from Mark Street onto Leonard Avenue and proceeded southbound, they observed a group of “eight to nine subjects” standing on the sidewalk next to a garage. The officers believed the subjects “were loitering,” so they stopped the car to “investigate their activity.” They did not activate any lights or siren, and did not draw their weapons or yell at anyone in the group. As the officers left the vehicle a few members of the group began to “walk off” or move away northbound. The officers observed defendant “take off running westbound” away from the rest of the group, then jump a fence or gate into the backyard of a house on the corner. Officer Potts pursued defendant through a yard and “tried to tase him,” but missed, as he jumped another fence. Defendant tripped as he “jumped the second fence,” and officer Kevin McCarthy apprehended him.
Officer McCarthy and his trained “drug-sniffing dog” then followed the path defendant took as he ran from the officers. The dog alerted the officers to a milk crate, next to a garbage can, about six feet into the side yard of the corner house defendant passed through after he jumped the first fence. Officer Potts testified that he chased defendant right past the milk crate before he turned left and jumped over the second fence. The officer did not observe defendant throw anything into the milk crate. In plain view on the milk crate, on top of an old newspaper, was a plastic baggie that contained 13 individually packaged rocks of “what appeared to be cocaine base.” Officer Potts offered expert opinion testimony that the 13 pieces of crack cocaine were “possessed for sale.”
The defense offered testimony from friends of defendant who observed the incident that resulted in defendant’s apprehension and presented a very different version of the incident. From the nearby residence at 107 Mark Street in Vallejo, they noticed that defendant was “hanging out” with a group of “Black males” on the sidewalk near the garage of a house at the corner of Mark Street and Leonard Avenue. A marked police vehicle drove past but “kept on going,” followed by a blue car, then a third dark or olive green vehicle which sped toward the crowd in which defendant was standing. People in the group, including defendant, began to run away and scatter to avoid being struck by the green car. At least two men wearing “face ski masks,” who turned out to be police officers, jumped out of the green car with guns drawn. Defendant ran from the men and jumped a fence before he was shot with a taser and fell. Defendant then put his hands up and was arrested at gunpoint.
DISCUSSION
I. The Denial of the Motion to Suppress.
Defendant claims that the cocaine found on the milk crate was seized as the result of an unlawful detention. He argues that the officers did not have adequate cause to detain him based only on the reputed “high crime area” in which they suspected “that the men were loitering.” Defendant points out that he was “merely observed visiting with a group of people,” which did not give the officers reasonable suspicion to “to chase and detain” him.
“The standard of appellate review of a trial court’s ruling on a motion to suppress evidence is well established. We defer to the trial court’s factual findings, express or implied, if supported by substantial evidence, with all presumptions favoring the trial court’s exercise of its power to judge the credibility of the witnesses, resolve conflicts in the testimony, weigh the evidence and draw factual inferences. [Citations.] However, in determining whether on the facts so found the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. McHugh (2004) 119 Cal.App.4th 202, 209.) “Further, we examine the legal issues surrounding the potential suppression of evidence derived from a police search and seizure by applying federal constitutional standards.” (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183,1195.) “Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution.” (People v. Banks (1993) 6 Cal.4th 926, 934.) We defer to the trial court’s findings of fact, but measure those facts against federal constitutional standards of reasonableness. (People v. Miller (2004) 124 Cal.App.4th 216, 221.)
The determinative inquiry in the present case is when a detention of defendant occurred. “A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person’s liberty [citations]; the police conduct communicates to a reasonable innocent person that the person is not free to decline the officer’s request or otherwise terminate the encounter [citation]; and the person actually submits to that authority [citation] for reasons not ‘independent’ of the official show of authority [citation]. Admittedly, the application of this test to particular circumstances is sometimes more an art than a science. [Citation.] As the high court has emphasized, ‘for the most part per se rules are inappropriate in the Fourth Amendment context. The proper inquiry necessitates a consideration of “all the circumstances surrounding the encounter.” ’ [Citations.]” (People v. Brendlin (2006) 38 Cal.4th 1107, 1118.) “ ‘ “A person has been ‘seized’ within the meaning of the Fourth Amendment”... “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.” ’ [Citation.] The high court later made clear that this test ‘states a necessary, but not a sufficient, condition for seizure.’ [Citation.] In order for there to be a seizure under the Fourth Amendment there must also be an arrest, by the application of physical force or by submission to the assertion of authority.” (People v. Hoyos (2007) 41 Cal.4th 872, 893, italics omitted.)
“ ‘Although there is no “bright-line” distinction between a consensual encounter and a detention... “the police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” ’ [Citations.] ‘ “The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” ’ [Citation.] ‘The officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.’ [Citation.]” (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a realistic assessment of appellant’s encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) “What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs.” (People v. Ross (1990) 217 Cal.App.3d 879, 884.) “Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
No detention or seizure occurred when the officers parked their vehicle and began to approach the group assembled on the sidewalk. (People v. Turner (1994) 8 Cal.4th 137, 179–180; People v. Menifee (1979) 100 Cal.App.3d 235, 238–239.) The established rule is “ ‘that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.]’ [Citation.]” (People v. Colt (2004) 118 Cal.App.4th 1404, 1411.) “An officer has every right to talk to anyone he encounters while regularly performing his duties.... Until the officer asserts some restraint on the contact’s freedom to move, no detention occurs.” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954–955.)
“[T]here must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. [Citation.] [The United States Supreme Court] has also cautioned against an undue focus on the fact that government action caused some restriction on an individual’s freedom of movement: ‘ “a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement..., nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement..., but only when there is a governmental termination of freedom of movement through means intentionally applied.” ’ [Citations.]” (People v. Brendlin, supra, 38 Cal.4th 1107, 1115–1116.) Here, the officers did not use sirens or flashing lights, made no command to halt nor any use of the police vehicle to block defendant or the others in the group, and did not exert any physical force, draw a weapon, display a badge, or otherwise signify that defendant was compelled to stay. (In re Manuel G., supra, 16 Cal.4th 805, 821–822; People v. Terrell (1999) 69 Cal.App.4th 1246, 1254.) In short, no assertion of authority or manifestation of restraint was made that would have communicated to defendant that he was not free to leave. (In re Manuel G., supra, at p. 822.)
In fact, in his argument that the flight instruction was improper defendant acknowledges that at the time he ran from the scene “the police had done absolutely nothing from which he might have concluded that he was not free to leave.”
Before the interaction resulted in any greater restraint, defendant fled. As a result, no detention occurred thereafter. The present case is unequivocally governed by the decision in California v. Hodari D. (1991) 499 U.S. 621, 626 (Hodari), where the United States Supreme Court articulated the rule that a seizure “requires either physical force... or, where that is absent, submission to the assertion of authority.” (Italics in original; see also People v. Hoyos, supra, 41 Cal.4th 872, 893; People v. Turner, supra, 8 Cal.4th 137, 180.) In Hodari, as in the case before us, the defendant and other young men were observed standing on the street by officers in a passing police vehicle. (Hodari, supra, at pp. 622–623.) When the officers approached the group, the defendant and a companion ran through an alley; the officers gave chase. (Id. at p. 623.) Hodari was observed by one of the pursuing officers as he “tossed away what appeared to be a small rock.” (Ibid.) He was then tackled by an officer, and “the rock he had discarded was found to be crack cocaine.” (Ibid.) The court held that absent any use of physical force by the officer or submission to the assertion of authority the defendant “was not seized until he was tackled. The cocaine abandoned while he was running was in this case not the fruit of a seizure, and his motion to exclude evidence of it was properly denied.” (Id. at p. 629; see also People v. Turner, supra, at pp. 180–181; People v. Siegenthaler (1972) 7 Cal.3d 465, 469.)
Thus, even when defendant fled and was pursued by the officer the episode did not escalate from a consensual encounter into a Fourth Amendment seizure. (Hodari, supra, 499 U.S. 621, 626–628; U.S. v. Santamaria-Hernandez (9th Cir. 1992) 968 F.2d 980, 983; People v. Turner, supra, 8 Cal.4th 137, 180–181; In re Baraka H. (1992) 6 Cal.App.4th 1039, 1047–1048; People v. Johnson (1991) 231 Cal.App.3d l, 11; People v. Arangure (1991) 230 Cal.App.3d 1302, 1307.) “To have a completed seizure, the suspect must also have submitted to the policeman’s authority.” (U.S. v. Wilson (4th Cir. 1991) 953 F.2d 116, 122; see also People v. Green (1994) 25 Cal.App.4th 1107, 1110–1111.) In any event, the officer’s testimony that defendant was observed in a group congregated in a reputed “high crime area” notorious for “lots of arrests for drug violations,” coupled with defendant’s unprovoked flight when he noticed the presence of police officers, provided the requisite reasonable suspicion to justify a detention. (Illinois v. Wardlow (2000) 528 U.S. 119, 124; People v. Souza (1994) 9 Cal.4th 224, 240–242.)
The evidence supports the inference that defendant dropped the baggie while fleeing from the police in an effort to evade apprehension and prevent discovery of the cocaine, and thus lost any reasonable expectation of privacy in its contents. (People v. Brown (1990) 216 Cal.App.3d 1442, 1451.) “It is, of course, well established that property is abandoned when a defendant voluntarily discards it in the face of police observation, or imminent lawful detention or arrest, to avoid incrimination.” (People v. Daggs (2005) 133 Cal.App.4th 361, 365.) We conclude that the discovery of evidence of the cocaine abandoned by defendant and observed in plain view by the officer was not the product of an unlawful threatened or actual detention, and defendant’s motion to suppress this evidence was therefore properly denied. (People v. Turner, supra, 8 Cal.4th 137, 181.)
II. The Denial of Defendant’s Batson/Wheeler Motion.
We turn to defendant’s contention that the prosecution excused a potential juror for impermissible “race-based” reasons. He complains that “Juror Number Six, an apparently African-American woman,” was peremptorily challenged by the prosecution “based on group bias” in violation of decisions in “Batson v. Kentucky (1986) 476 U.S. 79 [Batson], and People v. Wheeler (1978) 22 Cal.3d 258 [Wheeler].”
The record shows that when the prosecutor challenged Juror Number Six the defense objected. When the prosecutor was asked for the reasons for the challenge of Juror Number Six, he explained: “Multiple fold. The first and most importantly, when I asked the jurors if they had any bad experience with the police, she raised her hand up quite quickly and vigorously. She’s also very young [had] and very limited life experience, no children, and I don’t think she is married.” The court found that the challenge was “reasonable,” and denied the Wheeler motion. In his challenge on appeal to the prosecution’s expressed race-neutral reason for excusing Juror Number Six, defendant submits that “a number of jurors” indicated they had bad experiences with the police, and “four apparently Caucasian jurors who appeared similarly youthful” to the excused juror, and had “no children or demonstration of greater life experiences,” were seated by the prosecution. He claims that denial of his Wheeler motion was therefore erroneous and “requires reversal” of the judgment.
“It is well settled that ‘[a] prosecutor’s use of peremptory challenges to strike prospective jurors on the basis of group bias – that is, bias against “members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds” – violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution. [Citations.] Such a practice also violates the defendant’s right to equal protection under the Fourteenth Amendment to the United States Constitution. [Citations.]’ [Citation.]” (People v. Hamilton (2009) 45 Cal.4th 863, 898; see also People v. Avila (2006) 38 Cal.4th 491, 541; People v. Hutchins (2007) 147 Cal.App.4th 992, 996.)
“In a recent decision, the United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide... whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ [Citation.]” (People v. Cornwell (2005) 37 Cal.4th 50, 66–67; see also People v. Davis (2008) 164 Cal.App.4th 305, 309–310.)
We need not examine the first stage of the Batson/Wheeler inquiry, as the trial court implicitly found that defendant made a prima facie case of a possibility of discriminatory exclusion by inviting the prosecutor to explain the basis for exclusion of the juror. (See People v. Ervin (2000) 22 Cal.4th 48, 75; People v. Sims (1993) 5 Cal.4th 405, 428.) We proceed to an examination of the prosecutor’s stated reasons for the challenge of the juror at issue. “A prosecutor asked to explain his conduct must provide a ‘ “clear and reasonably specific” explanation of his “legitimate reasons” for exercising the challenges.’ [Citation.] ‘The justification need not support a challenge for cause, and even a “trivial” reason, if genuine and neutral, will suffice.’ [Citation.]” (People v. Lenix (2008) 44 Cal.4th 602, 613, italics omitted.) Even a “reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection.” (People v. Guerra (2006) 37 Cal.4th 1067, 1101.)
“In order to make a prima facie showing, ‘a litigant must raise the issue in a timely fashion, make as complete a record as feasible, [and] establish that the persons excluded are members of a cognizable class.’ [Citation.] The high court recently explained that ‘a defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ [Citation.]” (People v. Gray (2005) 37 Cal.4th 168, 186.) The Attorney General has not challenged the trial court’s finding that the totality of the facts presented by the defense gave rise to an inference of discriminatory purpose.
The prosecutor in the present case offered specific reasons for the challenge of Juror Number Six, which leads us to the third step of the Batson/Wheeler analysis, a review of the trial court’s finding of no purposeful discrimination. (People v. Adanandus (2007) 157 Cal.App.4th 496, 505.) “At this stage, ‘[t]he proper focus... is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.’ [Citation.]” (Id. at p. 506, italics omitted.) “ ‘[T]he critical question in determining whether [a party] has proved purposeful discrimination at step three is the persuasiveness of the prosecutor’s justification for his peremptory strike.’ [Citation.]” (People v. Hamilton, supra, 45 Cal.4th 863, 900.) “At the third stage of the Wheeler/Batson inquiry, ‘the issue comes down to whether the trial court finds the prosecutor’s race-neutral explanations to be credible. Credibility can be measured by, among other factors, the prosecutor’s demeanor; by how reasonable, or how improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.’ [Citation.] In assessing credibility, the court draws upon its contemporaneous observations of the voir dire. It may also rely on the court’s own experiences as a lawyer and bench officer in the community, and even the common practices of the advocate and the office that employs him or her.” (People v. Lenix, supra, 44 Cal.4th 602, 613, fn. omitted.)
“The existence or nonexistence of purposeful racial discrimination is a question of fact. [Citation.] We review the decision of the trial court under the substantial evidence standard, according deference to the trial court’s ruling when the court has made a sincere and reasoned effort to evaluate each of the stated reasons for a challenge to a particular juror.” (People v. Hamilton, supra, 45 Cal.4th 863, 900–901, fn. omitted.) “ ‘We review a trial court’s determination regarding the sufficiency of a prosecutor’s justifications for exercising peremptory challenges “ ‘with great restraint.’ ” [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th 602, 613–614.) “ ‘ “ ‘If the record “suggests grounds upon which the prosecutor might reasonably have challenged” the jurors in question, we affirm.’ ” ’ [Citation.]” (People v. Adanandus, supra, 157 Cal.App.4th 496, 501.)
We agree with the trial court that the reasons offered by the prosecution for removal of Juror Number Six were genuine and race-neutral. The prosecutor’s apprehension that the juror fervently expressed a prior negative experience with law enforcement was a justifiable reason for the challenge, especially where the credibility of police officer testimony was crucial in the case. (People v. Avila, supra, 38 Cal.4th 491, 554–555; People v. Roldan (2005) 35 Cal.4th 646, 702–703; People v. Adanandus, supra, 157 Cal.App.4th 496, 504; People v. Douglas (1995) 36 Cal.App.4th 1681, 1690.) We also cannot discount the prosecutor’s assessment that Juror Number Six was young, unmarried, and without children or significant life experiences. The prosecutor may have legitimately discerned that due to her youth and inexperience, coupled with a disapproving view of law enforcement, the juror would not assess the People’s case comprehensively and supportively, particularly where the defendant was a youthful offender. (See People v. Farnam (2002) 28 Cal.4th 107, 138; People v. Sims, supra, 5 Cal.4th 405, 430.) “Youth and a corresponding lack of life experience can be a valid race-neutral basis for a peremptory challenge. (People v. Sims (1993) 5 Cal.4th 405, 430 [20 Cal.Rptr.2d 537, 853 P.2d 992] [‘youthful college student with insufficient maturity to accept the responsibility involved in serving on a death-penalty case’ and a juror who was ‘very young and appeared immature’]; People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [35 Cal.Rptr.2d 103] [single college students without significant life experience]; U.S. v. Ferguson (7th Cir.1991) 935 F.2d 862, 865 [young and unemployed].)” (People v. Gonzales (2008) 165 Cal.App.4th 620, 631.) “A prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons.” (People v. Lenix, supra, 44 Cal.4th 602, 613.) “ ‘ “[E]ven ‘arbitrary’ exclusion is permissible, so long as the reasons are not based on impermissible group bias.” ’ [Citation.]” (People v. Hamilton, supra, 45 Cal.4th 863, 901.) “As a general proposition, an honestly held belief that a prospective juror will be unable to understand the case is a legitimate basis for a peremptory challenge. And a prosecutor’s peremptory challenges are presumed to be exercised in a constitutional manner.” (People v. Muhammad (2003) 108 Cal.App.4th 313, 322.)
Further, we find nothing in the record to suggest that the prosecutor’s articulation of reasons lacked credibility. As we view the record before us, the trial court made a sincere and reasoned evaluation of the prosecutor’s explanation for the challenge, and properly found them genuine. (People v. Ervin, supra, 22 Cal.4th 48, 76.) We must defer to the trial court’s assessment. (Id. at p. 77.)
Defendant seeks to have us undertake some form of comparative juror analysis of the prosecutor’s challenges in the case by claiming that “three apparently Caucasian women and one apparently Caucasian man were included on the jury” who “shared the same characteristics that the prosecutor cited in peremptorily removing” Juror Number Six. To the extent a comparative juror analysis is feasible on the present record, purposeful discrimination is not demonstrated. We are cognizant of the rule that, “ ‘If a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson’s third step.’ [Citation.]” (People v. Lenix, supra, 44 Cal.4th 602, 621.) “Thus, evidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.” (Id. at p. 622, italics added.) In the present appeal, however, we do not have before us a record of jury questionnaires or any information obtained during voir dire which comprehensively indicates the race or background of the potential jurors, or even the racial composition or marital status of the jury members as ultimately empanelled. Without a record that is adequate for review, we cannot conduct a meaningful comparative analysis of excused and unexcused jurors. To the degree the record may be reviewed, it fails to prove purposeful discrimination in light of the remaining evidence. We conclude that the record provides substantial support for the trial court’s conclusion that the prosecutor exercised the peremptory challenge of potential Juror Number Six in a constitutional manner.
We have only the argument of defense counsel in the motion for new trial that “a number of jurors besides” Juror Number Six indicated by raising their hands that they had bad experiences with the police, and that “three apparently white female jurors were eventually seated” who “appeared to be youthful, had no children, and did not provide any other information to suggest they had any wealth of life experiences more than” Juror Number Six.
III. The Flight Instruction.
We turn to defendant’s claim that the trial court erred by giving an instruction on flight in the terms of CALCRIM No. 372, which reads: “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.” Defendant asserts that the “facts of this case simply do not support a finding that [he] ‘fled,’ ” but rather merely that he “tried to exercise his right to leave.”
“Section 1127c requires a trial court in any criminal proceeding to instruct as to flight where evidence of flight is relied upon as tending to show guilt.” (People v. Carter (2005) 36 Cal.4th 1114, 1182.) A “ ‘flight instruction is proper whenever evidence of the circumstances of defendant’s departure from the crime scene or his usual environs,... logically permits an inference that his movement was motivated by guilty knowledge.’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 470; see also People v. Crandell (1988) 46 Cal.3d 833, 869.) “In general, an instruction advising the jury that evidence of flight alone is insufficient to establish guilt but may be considered with other proven facts in determining guilt ‘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.’ [Citation.]” (People v. Roybal (1998) 19 Cal.4th 481, 517.) “ ‘ “ ‘[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.” [Citation.]’ [Citation.]” (People v. Smithey (1999) 20 Cal.4th 936, 982.)
While defendant was not detained before he ran from the officers, we find that under the facts presented his flight demonstrated a consciousness of guilt – that is, a consciousness that he unlawfully possessed cocaine base. A strong inference from the evidence is that defendant was aware he was being approached by police officers. The black Ford Crown Victoria in which the officers appeared was unmarked, but was conspicuously equipped with the accessories of a police vehicle: visible spot lamps on the front doors, an overhead red signal light, emergency lights, strobe lights and a siren. As the officers exited the vehicle they were wearing blue police shirts with “Vallejo Police” patches in large bold letters on the sides and back, badges, blue jeans and black boots. When defendant observed the officers, he immediately ran, then jumped over two fences before he was apprehended. The evidence also strongly supports the inference that defendant discarded the cocaine during his flight. Defendant’s flight upon the approach of the police officers was evidence of his consciousness of guilt. (People v. Southard (2007) 152 Cal.App.4th 1079, 1090–1091.) The instruction did not assume that flight was established, but instead properly permitted the jury to make that factual determination and to decide the degree of weight to accord it. (People v. Carter, supra 36 Cal.4th 1114, 1182–1183.) The flight instruction was warranted by the evidence.
IV. The Claims of Prosecutorial Misconduct.
Defendant’s final contention is that the prosecutor committed “several instances of misconduct.” Defendant complains that during closing argument the prosecutor improperly suggested that “defense evidence was fabricated,” and “vouched for the credibility of police witnesses.”
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” ’ ” [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation.] ‘[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citation.]” (People v. Smithey, supra, 20 Cal.4th 936, 960; see also People v. Prieto (2003) 30 Cal.4th 226, 260.) We review the “trial court’s ruling on prosecutorial misconduct for abuse of discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 213.)
A. The Reference to the Defense Argument.
Defendant objects, as he did at trial, to the following comment on the defense case by the prosecutor in the course of his discussion of the conflicting versions of the incident offered by the police officers and the defense witnesses: “The bottom line – and what is interesting about this whole thing is that this story that the defense has come up with is necessary because they need to somehow explain [defense objection overruled] – Their story basically is to – is designed to explain why the defendant ran, and they need to explain that because they know that the defendant running is very strong evidence [another defense objection overruled].” Defendant maintains that the prosecutor’s comment was an expression of belief that the “defense was fabricated” and “improperly sought to shift the burden of proof” to the defense to concoct a reason that he “left the scene” of his interaction with the police.
We acknowledge the established rule that it “is misconduct for the prosecutor in argument to impugn the integrity of defense counsel or to suggest defense counsel has fabricated a defense. [Citations.] Counsel may not state or assume facts in argument that are not in evidence. [Citation.] That said, we accord counsel great latitude at argument to urge whatever conclusions counsel believes can properly be drawn from the evidence.” (People v. Cash (2002) 28 Cal.4th 703, 732.) “A prosecutor’s suggestion or insinuation that defense counsel fabricated the defense is misconduct only when there is ‘no evidence to support that claim.’ [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 862; see also People v. Rundle (2008) 43 Cal.4th 76, 163–164.) “ ‘The prosecutor is permitted to urge, in colorful terms, that defense witnesses are not entitled to credence,... [and] to argue on the basis of inference from the evidence that a defense is fabricated....’ (People v. Pinholster [(1992)] 1 Cal.4th [865,] 948; accord, People v. Wilson (2005) 36 Cal.4th 309, 338 [no impropriety in asserting that the defendant, who had provided conflicting versions of the events, was lying].)” (People v. Tafoya (2007) 42 Cal.4th 147, 182.)
We agree with the trial court that the prosecutor’s comments did not constitute an impermissible accusation of fabrication of a defense. The context of the prosecutor’s comment on the defense argument was an explanation of the entirely disparate versions of the incident offered by the prosecution and defense witnesses. To support the prosecutor’s position that the police officers rather than defendant’s friends were testifying truthfully, the prosecutor merely suggested that the defense evidence was borne of the necessity of accounting for defendant’s flight. The prosecutor’s argument to the jury was proper comment on the state of the evidence, not an unsupported implication that counsel fabricated a defense. (People v. Carpenter (1999) 21 Cal.4th 1016, 1057; People v. Earp, supra, 20 Cal.4th 826, 863; People v. Thomas (1992) 2 Cal.4th 489, 526.) Given the conflicting accounts of the incident, the prosecutor was permitted to argue that the defense witnesses were less than truthful with their testimony. (People v. Boyette (2002) 29 Cal.4th 381, 433.) The argument was offered without impugning defense counsel’s honesty and integrity, and was entirely appropriate. (See People v. Farnam, supra, 28 Cal.4th 107, 171; People v. Bemore (2000) 22 Cal.4th 809, 846.)
Nor do we find that the effect of the prosecutor’s argument was to inappropriately shift the burden of proof to the defense. We are not persuaded that the jury understood the statements as suggesting the defense bore the burden to establish his lack of guilt. Instead, the prosecutor was commenting on the basis of the defense and the unconvincing nature of it. (People v. Boyette, supra, 29 Cal.4th 381, 434; People v. Osband (1996) 13 Cal.4th 622, 697.)
B. Vouching for the Credibility of the Prosecution Witnesses.
We turn to defendant’s claim that the prosecutor “improperly vouched” for the credibility of the testimony offered by the police officers by stating that they had been with the Vallejo Police Department for years, investigated numerous cases, were experts in drug offenses, had no motive to lie, and would not risk their careers by falsifying evidence in a comparatively minor drug case. The prosecutor added: “That is how honest these officers are. They knew that the dope was his, but they were comfortable enough to tell you that, you know, ‘We searched the area. He ran and we found the dope.’ ” Defendant complains that in addition to giving “personal assurances of the veracity of his witnesses,” the prosecutor committed misconduct by expressing his “personal belief” of defendant’s guilt.
“A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness’s truthfulness at trial. [Citation.] However, so long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ her comments cannot be characterized as improper vouching.” (People v. Frye (1998) 18 Cal.4th 894, 971.)
Here, the prosecutor’s assertions that the police officers testified truthfully were offered in the framework of an evaluation of the evidence and the case before the jury. “Although a prosecutor may not personally vouch for the credibility of a witness, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case.” (People v. Boyette, supra, 29 Cal.4th 381, 433.) The argument that the officers “knew that the dope was his,” referring to defendant, was also based on the evidence presented – that is, the officers’ observations as witnesses at the scene – rather than any facts outside the record or the prosecutor’s purported personal knowledge or belief. (See People v. Ochoa (2001) 26 Cal.4th 398, 443; People v. Medina (1995) 11 Cal.4th 694, 757.) No misconduct was committed. (People v. Stansbury (1993) 4 Cal.4th 1017, 1059.)
Accordingly, the judgment is affirmed.
We concur: Marchiano, P. J., Banke, J.