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Court of Appeal, Second District, Division 5, California.

The PEOPLE, Plaintiff and Respondent, v. Patricia June GARDNER, Defendant and Appellant.

Cr. 31546.

Decided: December 19, 1978

Paul Halvonik, State Public Defender, under appointment by the Court of Appeal, and Charles M. Sevilla, Chief Asst. State Public Defender, Jonathan B. Steiner, Russell I. Lynn, Deputy State Public Defenders, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., William R. Pounders, Lawrence P. Scherb II, Deputy Attys. Gen., for plaintiff and respondent.

Defendant appeals from a conviction of first degree murder. (Pen.Code, ss 187, 189.) The appeal raises three issues: First, whether the trial court erred in refusing to give requested instructions on self-defense and justifiable homicide; second, whether the court correctly instructed the jury on evidence of defendant's flight; and third, whether the court abused its discretion by admitting into evidence certain gruesome photographs of the victim.


Defendant, a prostitute and heroin addict, had known George Whitmore, the victim, for about two months. During that time they became friends and defendant periodically borrowed money from him.

In the early evening of January 31, 1977, Whitmore called defendant at her residence, apparently to request her services. Although during the course of the day defendant had drunk heavily and had injected heroin, she was in need of money for another “fix” and consented to visit Whitmore at his residence. Together with one Betty Willis1 she arrived there about a half hour later.

Willis testified that after some preliminary drinking, defendant suggested that Whitmore accompany her to the bedroom. Willis herself remained in the living room. While in the bedroom, defendant and Whitmore engaged in a heated argument over the amount of money to be paid. At some point, Willis heard defendant call out her name, and when she responded by going into the bedroom she found defendant, half clad, being choked around the neck by Whitmore while he pinned her to the bed with his body.

A scuffle ensued, during which the two younger women beat the older Whitmore with their fists, and perhaps a lamp, and inflicted severe and bloody wounds. Defendant kicked Whitmore, demanded more money, and when he refused, proceeded to ransack the bedroom and remove his wallet.

At some point during the affray, Willis left the room to tend to a gash she received from a broken lamp thrown at her by Whitmore. According to her testimony, when she returned Whitmore was stretched out on the floor with his ankles and perhaps wrists bound, and the bedroom in flames. Defendant stood silently in the doorway and simply watched while Willis vainly attempted to drag the bound Whitmore from the room.

Defendant testified in her own defense. On the day in question she had been drinking and injected heroin. She went to Whitmore's house to exchange sex for money. Willis came along, but Whitmore objected to her presence. Whitmore gave defendant $10, but told her he was not going to give her the rest of the money they had agreed on. He knocked her against a closet. Willis then entered the room and fought with Whitmore. At Willis' direction, defendant then went into the bathroom to get dressed. While she was in the bathroom, she heard Willis scream for help, claiming that Whitmore was trying to get a gun. She returned to the bedroom, where Willis and Whitmore were struggling. She tripped and fell on top of Whitmore. Blood was everywhere. She tried to raise the mattress to see whether there was a gun under it. The mattress fell against Willis and Whitmore. She never did see Whitmore's feet bound. Willis then threw her out of the room and threw a lit match into the bedroom. Defendant denied participating in beating Whitmore. She asked one Gonzalez to throw away her bloodstained clothes.

The medical evidence concerning the cause of Whitmore's death will be discussed in connection with defendant's first contention on appeal.


As noted, defendant claims that the trial court should have given requested instructions on self-defense and justifiable homicide. We disagree. We lay aside the fact that any error in instructing on self-defense would have been prejudicial only because it is not this court's province to disagree with People v Modesto (1963) 59 Cal.2d 722, 729, 31 Cal.Rptr. 225, 382 P.2d 33, and that a reversal in this case might put too heavy a strain on the Modesto rule. The plain fact is, simply, that the record contains no evidence that Whitmore died from any cause other than the fire.2 While, admittedly, the testimony of the deputy coroner is somewhat confusing, when read as a whole it leaves no doubt on the point.

The doctor first unequivocally stated that “(d)eath was caused in initial instance due to inhalation of hot fumes of combustion; that could be determined by the finding of soot in the throat and the fact that the lining of the wind pipe was charred and there was considerable fluid collected in the lungs, which is characteristic of burning of the lungs.” He added that while carbon monoxide “played its part” the amount found in the victim's blood was not “lethal in itself but that number (15.7%) indicates that the burning of the lungs stopped the process of respiration so no more gas of any type was absorbed.” The prosecutor then had him describe the physical trauma suffered by the deceased in some detail. The following then ensued:

“Q Doctor, do you have an opinion based upon your examination of the nature and extent of these injuries as a result of the assault alone as to whether or not the assault in and of itself could have caused this decedent's death, apart from any fire?

“A The assault in and of itself could have caused the death, not only in this decedent but in an average healthy individual, and this decedent was not a young man and he did not have a perfectly healthy heart.

“I would expect that he would be able to withstand shock with less ease than a younger individual.

“Q And would you anticipate as a result of the nature and extent of these injuries that the decedent would have suffered shock?

“A Oh, yes, yes, that is almost synonymous.

“Q And in your opinion, it would have been sufficient to kill him, apart from any fire?

“A Yes.”

While it might have been nice if the prosecutor had followed up this series of questions by just one more, the answer of which would have made it clear that the trauma suffered by the victim could have, but in this case did not actually cause death, it is impossible to interpret the record as suggesting anything else. If the doctor had intended to say that this decedent actually did die as a result of the trauma, it is inconceivable that he would not have attempted to explain his initial finding and if anyone had reasonably understood him to so testify, that he would not have been asked to explain it. The fact is, of course, that the witness only spoke in terms of “could have” and “would have” and never said “did.”

Besides the findings concerning the victim's throat, wind pipe and lungs being uncontradicted, it seems impossible to write a plausible scenario under which the victim died as a result of physical trauma suffered in a fight, yet was able to inhale the hot fumes which reached and burned his lungs.

Defendant contends the trial court erred in giving the jury CALJIC 2.52,3 which permits the jury to consider defendant's flight as evidence of guilt. While she admits, as she must, that some flight instruction was appropriate, she argues that the trial court was under a duty to tailor its instruction “to the facts and fully explain the variety of logical innocent motives which might prompt flight.” Her argument lacks merit.

We recognize that certain foreign jurisdictions have embraced the argument that flight instructions “should be accompanied by a (full) explanation by the judge of the variety of motives which might prompt flight, and thus of the caution which a jury should use before making the inference of guilt from the fact of flight.” (Austin v. United States (1969) 134 U.S.App.D.C. 259, 261, 414 F.2d 1155, 1157.) In 1929, however, our Legislature rejected just such a rule when it enacted Penal Code section 1127c4 which makes the giving of a certain flight instruction mandatory where evidence of a defendant's flight is relied upon to prove guilt, and then provides: “No further instruction on the subject of flight need be given.”

Accordingly, we are left only to determine whether the court acted properly in light of People v. Cannady (1972) 8 Cal.3d 379, 105 Cal.Rptr. 129, 503 P.2d 585, which cautions that flight instructions are called for only where the jury can “reasonably infer that defendant(‘s) flight reflected consciousness of guilt.” (Id., at p. 391, 105 Cal.Rptr. at p. 137, 503 P.2d at p. 593.)

We find substantial evidence to support the court's decision. Not only did defendant leave the scene of the crime without attempting to render assistance, but by her own admission she drove past Whitmore's residence later that evening intending to “visit” him but decided not to stop when she spotted fire and police vehicles present.

Of course, the instruction, by its terms, hardly compels the jury to assume defendant's guilt. Nothing precludes the defendant from trying to explain away the apparent significance of her flight by pointing to facts indicating her actions were equally or more consistent with some other innocent concern. (See Wigmore on Evidence, s 276(e).) We simply hold that since the jury could reasonably infer that defendant's flight reflected a consciousness of guilt, and since Penal Code section 1127c makes it clear that no further instruction is required, the trial court did not err.

Finally, the defendant contends that the trial court abused its discretion by receiving into evidence five photographs variously depicting the charred body of the victim, his bound ankles, and bloody rags. She argues that because the photographs are gruesome, cumulative, and without probative value their admission was prejudicial and served only to arouse the passions of the jury.

There is no dispute that the court did in fact determine their admissibility in accordance with Evidence Code section 352; indeed, the record so reflects. (See People v. Ford (1964) 60 Cal.2d 772, 801, 36 Cal.Rptr. 620, 388 P.2d 892.) We find no abuse of discretion.

In assessing the probative value of physical evidence, it must be remembered that this was not a case where the prosecution invited implicit belief in the testimony of its star witness, Willis. In fact the prosecutor suggested expressly that Willis and defendant were accomplices.5 It was, therefore, a case where, in view of the unreliability of the witnesses, the pictures had an enhanced probative value. The pictures in question are People's 2, 4, 5, 6 and 7. Of these 4, 5 and 6 can be immediately eliminated. Essentially they show blood stained rags found on or near the victim's body although one “object” in the corner of exhibit 5 does appear to be a portion of his legs. Exhibit 7 is a rather pale color shot of decedent's legs, showing them bound together by a cloth. There is nothing particularly gruesome about it. That statement, however, can definitely not be made about Exhibit 2, which shows the charred and burned remains of the victim lying next to the burned mattress, again clearly depicting the tying together of his legs. We note, however, that the general effect is subdued the colors are quite muted and possibly a good deal less gruesome than the imagination of the jurors who had heard the testimony concerning the position and condition of the body. We think there was no abuse of discretion.

In addition we point out that objection to the introduction of the photographs was not made until the very end of the trial when the prosecutor moved for their admission. Yet at least some of these pictures had been freely used during the examination of the People's arson expert, Carl Rasmusson, much earlier in the trial. Although they apparently were not shown to the jury at the time, the proper time to object to the pictures would have been when the prosecution used them to make a witness' testimony intelligible. Basically, however, we simply cannot find that the admission of the photographs was, under all of the circumstances an abuse of discretion.

The judgment is affirmed.


1.  Willis was originally charged as a codefendant, however, she was permitted to plead guilty to involuntary manslaughter in return for her testimony on behalf of the People.

2.  Appellant does not contend that the setting of the fire was a legitimate act of self-defense.

3.  CALJIC 2.52 states: “The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, 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.”

4.  Penal Code section 1127c states: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: (P) The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. (P) No further instruction on the subject of flight need be given.”

5.  “I don't care who lit the match. Each one of the two women in that house was as guilty as the other for what occurred there.”

KAUS, Presiding Justice.

STEPHENS and ASHBY, JJ., concur.