People v. London

• Court: California Court of Appeals
• Writing for the Court: BRAUER; AGLIANO, P.J., and ELIA
• Citation: People v. London, 254 Cal.Rptr. 59, 206 Cal.App.3d 896 (Cal. App. 1988)
• Decision Date: 19 December 1988
• Docket Number: No. H003572,H003572
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Kent LONDON, Defendant and Appellant.

Page 59

254 Cal.Rptr. 59

206 Cal.App.3d 896

The PEOPLE of the State of California, Plaintiff and Respondent, v. Kent LONDON, Defendant and Appellant.

No. H003572.

Court of Appeal, Sixth District, California.

Dec. 19, 1988.

As Modified Jan. 9, 1989.

Review Denied March 30, 1989.

John A.W. Halley, San Mateo, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Sup. Deputy Atty. Gen., Blair W. Hoffman, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

BRAUER, Associate Justice.

A jury convicted defendant Kent L. London of one count of receiving stolen property and three counts of conspiracy to commit forgery. Because his preimprisonment credit exceeded the sixteen-month sentence, the court released him from custody and ordered him to report to his parole officer.

London contends on appeal that the court erred in instructing the jury and in limiting closing argument. He also contends that he was entitled to be released without any parole obligation. Finding no error in the trial or the sentence, we affirm.

I. FACTS

The People charged London by information with one count of receiving stolen property, two counts of robbery, one count of forgery, and three counts of conspiracy to commit forgery. The jury convicted him only of receiving stolen property (Count 1) and conspiracy to commit forgery (Counts 5, 6, and 7). It failed to reach a verdict on the remaining counts, which the court later dismissed under Penal Code section 1382, subdivision (b).

Because the robbery counts have been dismissed there is no need to set out in detail the facts which underlay them. The robberies are pertinent only because their proceeds included the checkbooks, credit cards, and identification papers that came into London's possession and which he and others used to commit forgeries. Thus, it is necessary to know only that Rebekah Stites, Sandra Tate, and a black male robbed Marsha and Emily Vargas of these items at gunpoint on February 14, 1986.

On February 15, the day after the robbery, London, Stites, and Tate went on a spending spree. They used the stolen checks and identification papers to make purchases at Sears, the Athletic Attic, and Macy's. These incidents supported the charges of conspiracy to commit forgery and possession of stolen property. The prosecution established its case primarily through the testimony of Stites and Tate, who testified pursuant to plea bargains, and through the testimony of employees of the three businesses. Because all but one of the issues on appeal relate in some way to identity, we focus our attention on the evidence relevant to that issue.

The forgeries began at Sears in Vallco, a shopping mall in Cupertino. Stites forged a check on Emily Vargas' account to pay for a video cassette recorder. David Distefano, the sales clerk who participated in the transaction, identified Stites in a photographic line-up as the woman who had written the check. Distefano identified someone other than London, however, as the man who had accompanied Stites.

After leaving Sears the three went to the Athletic Attic, a store in the same mall. At that store Stites wrote a second check to pay for two pairs of men's tennis shoes and a man's sweat suit. Two sales clerks were involved in the transaction: Stephanie Simpson and Alexandre Hiroshnichenko. Simpson identified Stites in a photographic lineup but did not identify anyone in court. Hiroshnichenko identified London in court.

The three next drove to Valley Fair, a mall in San Jose. They encountered difficulties at Macy's, where Stites forged a third check to buy a gold neck chain for London. When Cindy Hintz, the sales clerk, called the store's credit department for approval, Stites and Tate became scared and walked toward the door, leaving Vargas' identification behind. London stayed at the counter. A few minutes later Hintz told London that Macy's would not accept the check. London took the check and walked toward the door, tearing up the check as he went.

Scott Emery, a security agent for Macy's, had observed the transaction. Outside Macy's, he and three other agents confronted London, Stites, and Tate in the parking lot near their car. London became nervous and walked across the street and out of sight behind a service station. Emery and Michelle Degmetich followed. After a few minutes London reappeared and told the agents that he would talk with them. Together they walked back to the mall's parking lot, where London asked one of his companions for the keys to the car. When she refused to part with them he fled across the street through moving traffic. By the time the traffic had cleared sufficiently for the security agents to follow, London was out of sight.

Meanwhile, Tate permitted security agents to search the car. The search revealed more checks, credit cards, and other property taken in the robbery.

The events at Macy's produced identifications of London in court by four eyewitnesses: Hintz, the sales clerk, and Emery, Elizabeth Williams, and Donna Galletti, three of the security agents who had seen London in the parking lot. Hintz also identified London in a photographic line-up.

Stites and Tate testified that London was the person who had accompanied them during the forgeries.

To cast doubt upon these identifications the defense called Kenneth McDonald, who was Stites' boyfriend and in jail at the time the offenses occurred. The defense hoped to prove that the man who had accompanied Stites and Tate was Stites' husband, not the defendant. McDonald testified that Stites telephoned him a few days after February 14. She told him that she had been in police custody because she, Rebekah Tate, and her husband had committed a robbery on February 14 and attempted to use stolen checks the next day. McDonald did not know Tate's husband's name. In her own testimony Stites denied that she had been with her husband on February 14 or 15.

II. DISCUSSION

We do not accept London's claims of instructional error. One claim, concerning the instruction on flight, we discuss in detail; recent decisions of the Supreme Court dispose of the others. We hold that the trial court did not abuse its discretion by limiting closing argument. The Penal Code does not support London's claim to a parole-free release. Finally, since we find no error, there is no reason to address the subject of cumulative error.

A. Jury Instructions on Flight (CALJIC No. 2.52) and Destruction of Evidence (No. 2.06)

The trial court instructed the jurors that the law permitted them to consider London's flight from Macy's security agents and his attempt to destroy a forged check as facts relevant to his guilt or innocence. (CALJIC No. 2.52 [flight], No. 2.06 [destruction of evidence].) London contends that these instructions are always erroneous when identity is an issue in the case. We disagree.

The two instructions raise similar considerations. We consider first the instruction on flight, CALJIC No. 2.52:

"The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding the question of his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine." ¹

To be sure, if identity is the only issue in a case, evidence of flight is irrelevant and the instruction is improper. (People v. Parrish (1986) 185 Cal.App.3d 942, 948, 230 Cal.Rptr. 118.) The reason is clear. Flight supports an inference that the actor was conscious of guilt. (People v. Mulqueen (1970) 9 Cal.App.3d 532, 543, 88 Cal.Rptr. 235.) But that a certain person was observed fleeing from, say, the scene of a robbery and thereby manifested a consciousness of guilt is of no consequence unless the person fleeing was the defendant. On the other hand, if consciousness of guilt is relevant to an issue in the case (and if there is substantial evidence of flight) the instruction must be given. (Pen.Code, § 1127c; Use Note to CALJIC No. 2.52.)

This, essentially, is what we held in People v. Scott (1988) 200 Cal.App.3d 1090, 1094-1095, 246 Cal.Rptr. 406. But London's argument finds support in holdings that a trial court should not instruct on flight if identity is "an issue in the case" or "the main issue." (People v. Jackson (1986) 187 Cal.App.3d 499, 511, 231 Cal.Rptr. 889; People v. Malgren (1983) 139 Cal.App.3d 234, 242, 188 Cal.Rptr. 569; People v. Moringlane (1982) 127 Cal.App.3d 811, 821-822, 179 Cal.Rptr. 726; People v. Salazar (1980) 108 Cal.App.3d 992, 998, 167 Cal.Rptr. 38; People v. Anjell (1979) 100 Cal.App.3d 189, 199-200, 160 Cal.Rptr. 669.)

London argues that such a rule is necessary to prevent the jury from misapplying irrelevant evidence of flight to the issue of identity. But the rule goes too far. If the People rely upon evidence of flight to show consciousness of guilt, then CALJIC No. 2.52 is proper. The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. (Pen.Code, § 1127c.) The jury's need to know these things does not change just because identity is also an issue. Instead, such a case requires the jury to proceed logically by deciding first whether the suspect was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.

If there is reason to be concerned that evidence of flight will confuse the jury in its deliberations on identity, then the solution to that problem is to instruct more precisely--not to withhold the needed instruction on flight. For example, the court might at defendant's request instruct the jury in this...