THE PEOPLE v. ERROL ALEXANDER BOWEN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Errol Alexander Bowen appeals from the judgment entered following his convictions by jury on two counts of assault with a firearm (Pen.Code, § 245, subd. (a)(2);  counts 1 & 3) with firearm use (Pen.Code, § 12022.5, subd. (a)) and on count 4– discharging a firearm at an inhabited dwelling house (Pen.Code, § 246).   The court sentenced appellant to prison for 16 years 4 months.   We affirm the judgment.¹

FACTUAL SUMMARY

1. People's Evidence.

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993)

6 Cal.4th 1199, 1206), the evidence established that on April 24, 2008, Victoria Elder was the manager of an apartment building at 6400 West Boulevard in Los Angeles.   About 10:00 a.m., she saw appellant standing outside her apartment door.   She knew appellant because his girlfriend, Camille, was a tenant.   Camille and Elder's son, Nathaniel Ricks, were friends, although they did not have a romantic relationship.

Elder asked appellant what he was doing in front of Elder's door.   Appellant eventually indicated he wanted to apologize to Ricks in connection with an incident that had occurred the previous night and during which appellant had approached Ricks.   Elder testified she and appellant discussed “the relationship with Camille” and “about jealousy and how it tends to stir up anger.”   Appellant agreed with Elder.   Elder testified that, at one point, appellant “was saying he shouldn't have had a gun, and that it basically should have never happened.”   Elder also testified, concerning the gun, that she told appellant that if he had an anger problem he should not be carrying a weapon, and someone might get hurt.

While Elder was talking with appellant, Ricks approached.   Ricks became angry when he saw appellant.   Appellant told Ricks that appellant had come to apologize, and appellant reached to shake Ricks's hand.   Ricks approached appellant and, using profanity, rejected appellant's apology.   The two argued and later exited the building.   Appellant and Ricks continued arguing.   Jonathan, a friend of Ricks, approached and said something to Ricks or appellant.   Ricks challenged appellant to fight.   Appellant became angry but indicated he did not want to fight.

At some point, Elder saw appellant's hand move towards his waist.   Elder asked appellant what he was doing.   Elder testified “[appellant] said it was falling, and he was pulling it up.”   She also testified appellant “put the gun back in his waist part.”   Elder just saw the gun's handle.   Ricks, who had become more angry, told appellant to put the gun down and “let's go head to head.”   Elder and Ricks were standing near a glass door, which was the front entrance to the building.   There were stairs between the sidewalk and glass door.   Appellant backed away from the stairs, gestured for Elder to move, and stood on the sidewalk.   According to Elder, appellant began shooting.

Derrick Jackson, who lived in the building, was returning from a store and saw appellant and Ricks arguing.   Jackson was on the sidewalk and heading north towards the building's entrance.   Jackson saw appellant holding a black and silver semiautomatic handgun by his side.   Jackson walked back towards the store.   Jackson did not see a weapon in Ricks's hands.

Jackson saw appellant begin shooting while Jackson was standing perhaps 20 to 30 feet from Elder and Ricks.   Jackson heard probably four shots.   After the second shot, Jackson turned and saw appellant shooting towards the front entrance of the building (count 1 (alleging Ricks as the victim) and count 4).   Three bullets struck the glass door, and one shattered its glass.

Jackson then saw appellant turn towards Jackson and fire a shot at him (count 3).   Jackson testified the bullet “whizzed” past his head and came “pretty close.”   Jackson also testified that, after appellant shot at him, appellant ran to his car and drove off.   Police recovered from the scene four spent .40–caliber casings fired from a semiautomatic weapon, but found no bullets.   A videotape of the incident was played to the jury and admitted into evidence.

2. Defense Evidence.

In defense, appellant testified as follows.   About April 10, 2008, gang members including Ricks and Jackson “jumped” appellant because they wanted him to join their gang.   After that day, appellant carried a gun.   During cross-examination, appellant testified that on April 24, 2008, he was at the apartment building to apologize for the fact that, two or three days before, he had pulled a gun on Ricks.

On April 24, 2008, Ricks and Jonathan wanted to fight appellant and said “we're going to F you up.”   Appellant asked them to leave him alone and pled for his life.   Ricks challenged appellant to fight and approached him.   Appellant testified he thought “they” were going to kill appellant.   Jackson was with Ricks and Jonathan.

Appellant did not load the gun he possessed;  his cousin gave him the loaded gun.   Appellant had never loaded a gun and did not know how to operate the gun.   At some point Jonathan lifted his shirt and appellant assumed Jonathan had a weapon.   Appellant did not have a lot of experience firing weapons and had never fired a gun before.   Appellant drew the gun and tried to flee.   Prior to shooting the gun, appellant never saw anyone other than appellant with a weapon and no one touched him.

When appellant fired the gun, he was trying to aim at the ground and intended to frighten the group so he could escape.   The gun was an automatic so he pulled the trigger once, held it, the gun recoiled, and it fired four rounds.

Appellant acknowledged the videotape depicted him walking from the sidewalk and towards the front door before he fired the first shot, and that he was therefore walking closer to what he was claiming at trial had been a threatening person(s).  Appellant also acknowledged the videotape depicted him standing with outstretched arms, looking in a southerly direction on West Boulevard, and holding a gun sideways.   According to appellant, he did not shoot at Jackson, but just turned in that direction.   However, appellant also testified he shot in that direction because Jackson was standing there and appellant was afraid of him.   Appellant later testified that he thought Jackson was standing at a specified location when appellant “turned and shot at him,” and that everything happened quickly.

A detective testified appellant was arrested on June 1, 2008.   Appellant testified that the day after his arrest, police searched his mother's house.   Appellant also testified during cross-examination that he was unaware that, during the search, police recovered a 9–millimeter semiautomatic handgun from under a mattress in appellant's room.

The following then occurred:  “Q ․ So you would have no idea, I suppose, where that gun came from or why it was there?  [¶] A No, sir.   I'm not saying that I didn't know about no gun.   First of all, it wasn't a complete gun.   I live in the attic and I found a bag— it was a gun that was in pieces.   It wasn't a complete gun, it was just a frame, just a metal, not a gun.  [¶] ․ [¶] A It wasn't a gun at all.  [¶] Q And whatever this thing is that was recovered that you say is not a gun, you do admit that it was under your mattress in your room, in your mother's house on June 2nd?  [¶] A Yeah. I found it.”

ISSUES

Appellant claims (1) the trial court erroneously admitted evidence of a gun found under his mattress, (2) the trial court erroneously instructed on flight and on false and misleading statements, and (3) cumulative prejudicial error occurred.

DISCUSSION

1. The Trial Court Did Not Prejudicially Err by Admitting Evidence of a Gun Found by Police.

a. Pertinent Facts.

At sidebar during the cross-examination of appellant, the prosecutor represented as follows.   Appellant had testified he was not a “gun person.”   Appellant had created the impression “this is the first time” he had begun carrying a gun and he was unfamiliar with guns and how to operate them.   On “June 2,” police searched appellant's apartment, i.e., his mother's house, and recovered a loaded 9–millimeter handgun from under a mattress in appellant's room.   The handgun was not the gun used in the shooting.

The prosecutor proffered evidence of the gun as relevant to appellant's credibility and to negate the false impression he had created that he was not a “gun person” and had possessed for protection the gun involved in the shooting.   Appellant objected to the proffered evidence on the grounds, inter alia, it was irrelevant and prejudicial.

The court overruled appellant's objection and indicated the prosecutor could ask appellant about whether he kept a gun under the mattress, the type of gun it was, and why it was there.   The court noted appellant had not merely testified he did not know anything about the gun used on April 24, 2008, but had broadly indicated he was ignorant about guns generally.   Appellant subsequently testified concerning the search as indicated in the last two paragraphs of the Factual Summary.   There is no dispute that, other than as discussed above, the People presented no evidence at trial that on June 2, 2008, appellant possessed a gun, loaded or otherwise, under his mattress.   During jury argument, the parties disputed whether appellant fired in self-defense.²  Appellant also argued he shot at the ground, was not shooting to kill, but was “shooting to flee.”

b. Analysis.

Appellant claims the trial court erred by admitting evidence of a gun found under his mattress, because the evidence was irrelevant and excludable under Evidence Code section 352.   There is no need to decide the issue.

At the outset, we note no clear evidence was admitted that a gun was found under appellant's mattress.   Appellant denied he was aware that police recovered a 9–millimeter semiautomatic handgun from under a mattress in his room.   He testified it was not a complete gun, it was a gun in pieces, and it was “just a frame, just a metal, not a gun.”   Appellant essentially testified, not that a gun was under his mattress, but that parts of a gun were under his mattress.   There is no dispute the People did not present evidence that appellant possessed an operable gun, loaded or otherwise, under his mattress.   The burden is on appellant to demonstrate error on appeal;  error will not be presumed.  (In re Kathy P. (1979) 25 Cal.3d 91, 102;  People v. Garcia (1987) 195 Cal.App.3d 191, 198.)   Appellant has failed to demonstrate that evidence was admitted that a gun was found under his mattress.

Even if the trial court erroneously admitted evidence that a gun was found under appellant's mattress, it does not follow that we must reverse the judgment.   As mentioned, no clear evidence was received that police found a gun under appellant's mattress.   The jury heard appellant's exculpatory explanation that the item found under his mattress “was in pieces” and “was just a frame, just a metal, not a gun.”   Appellant's testimony on that issue was brief and only a small part of the evidence presented in this case.³

To the extent the prosecutor's cross-examination questions suggested police found a gun under appellant's mattress, the court, using CALCRIM No. 222, instructed the jury that nothing attorneys said, and none of their questions, were evidence, and that the jury was not to assume something was true simply because an attorney's question suggested it was true.   The jury is presumed to have followed the court's instructions.  (People v. Sanchez (2001) 26 Cal.4th 834, 852.)

Moreover, there was no evidence that anyone but appellant had a gun on April 24, 2008.   The testimony of Elder and Jackson, and the videotape of the incident, provided strong evidence of appellant's guilt.

At one point appellant testified that when, on April 24, 2008, he shot the gun used during the present incident, he was trying to aim at the ground, intending only to frighten the group so he could escape.   According to appellant, the gun was an automatic so he pulled the trigger once, held it, the gun recoiled, and it fired four rounds.   Appellant claimed he did not have a lot of experience firing weapons and had never fired a gun before.

In essence, appellant thereby implied he was unfamiliar with guns and how to operate them, and, therefore, although the initial discharge of the gun on April 24, 2008, was intentional, the gun recoiled and the additional discharges of the gun, and any shots fired towards persons or the apartment building, were accidental.   Appellant argued to the jury that he fired in self-defense.

Appellant's jury argument that he fired in self-defense was inconsistent with the defense evidence implying that the discharges of the gun after the initial discharge, and any shots fired towards persons or the building, were accidental.  (Cf. People v. Villanueva (2008) 169 Cal.App.4th 41, 50–51;  People v. Slater (1943) 60 Cal.App.2d 358, 367.)   As to the charge that appellant violated Penal Code section 246 in particular, the jury necessarily found that appellant's discharge of the gun at the building not only was not accidental, or done as part of an act of self-defense, but was willful and even malicious.⁴

In sum, even if evidence was erroneously admitted that appellant had a gun under his mattress on June 2, 2008, i.e., several weeks after the April 24, 2008 shootings, the error was not prejudicial.  (Cf. People v. Watson (1956) 46 Cal.2d 818, 836 (Watson ).)   Nor did the admission of the challenged alleged gun evidence render appellant's trial fundamentally unfair.  (See People v. Partida (2005) 37 Cal.4th 428, 439.)

2. The Trial Court Properly Gave CALCRIM Former Nos. 362 and 372.

a. The Court Properly Gave CALCRIM Former No. 362.

During discussions concerning proposed jury instructions, the prosecutor indicated the parties agreed the giving of CALCRIM former No. 362 concerning false or misleading statements ⁵ “[was] not called for” because it tended to apply when defendants made admissions during police interrogations, and appellant made no such admissions.   Appellant agreed and indicated CALCRIM former No. 362 applied to “admission or interrogation type situations, admissions and confessions” and not to testimony;  therefore, the court should not give CALCRIM former No. 362.   The court stated,

“․ I regard that as a sua sponte instruction and which includes the defendant's testimony.”   The court gave CALCRIM No. former 362 to the jury.

Appellant claims the trial court erred by giving the instruction, because, according to him, it applies only to false or misleading pretrial statements, not to false or misleading testimony, and appellant made no false or misleading pretrial statements.⁶

There is no need to decide whether CALCRIM former No. 362 properly applied only to false or misleading pretrial statements.   Even if it did, Elder testified she saw appellant's hand move towards his waist and asked him what he was doing.   Elder also testified “[appellant] said it was falling, and he was pulling it up.”   She further testified appellant “put the gun back in his waist part.”

Elder's testimony that appellant said “it was falling, and he was pulling it up” reasonably may be construed to mean appellant said the gun was falling in his pants and he was pulling it back up.   Appellant, in his opening brief, so construes Elder's above quoted testimony.

Therefore, there was substantial evidence appellant effectively made a pretrial statement that his hand moved towards his waist simply because the gun was falling in his pants and he was pulling it back up.   Moreover, based on all the other evidence in this case, including the fact that shortly after appellant allegedly pulled the gun back up, he began shooting, the jury reasonably could have concluded this pretrial statement was false and misleading, and that, in fact, appellant moved his hand towards his waist to handle the gun in preparation of shooting it.   Accordingly, even assuming CALCRIM former No. 362 properly applies only to false or misleading pretrial statements, there was sufficient evidence appellant made the requisite “false or misleading statement relating to the charged crime” for purposes of CALCRIM former No. 362 and satisfied the instruction's requirements;  therefore, the trial court did not err, constitutionally or otherwise, by giving it.

Finally, even if the giving of the instruction was error, it does not follow that we must reverse the judgment.   There was strong evidence of appellant's guilt and, whether or not the court gave CALCRIM former No. 362, the jury reasonably could have concluded that any defense evidence that appellant fired in self-defense, and/or intentionally or unintentionally fired his gun but accidentally shot towards persons and/or the building, was a fabrication.   Accordingly, any trial court error in giving CALCRIM former No. 362 was not prejudicial.  (Cf. Watson, supra, 46 Cal.2d at p. 836;  People v. Beyah (2009) 170 Cal.App.4th 1241, 1248–1250.)

b. The Court Properly Gave CALCRIM Former No. 372.

The court, using CALCRIM former No. 372, instructed without objection on flight.⁷  Appellant claims the trial court erred by giving the instruction, because there was no evidence appellant fled the scene and, instead, he left the scene to avoid being assaulted.   The claim is unavailing.   Appellant waived the issue by failing to object to the instruction.  (Cf. People v. Valdez (2004) 32 Cal.4th 73, 137.)

Even if the issue was not waived, a flight instruction is proper whenever evidence of the circumstances of a defendant's departure from the crime scene logically permits an inference that the defendant's movement was motivated by guilty knowledge.  (People v. Abilez (2007) 41 Cal.4th 472, 522 (Abilez ).)   A flight instruction may be given despite a lack of evidence of the physical act of running, but the giving of such an instruction is error absent evidence of a purpose to avoid being observed or arrested.  (Ibid.)

Jackson testified appellant ran to his car and drove off.   This was substantial evidence of the requisite flight, i.e., appellant's departure from the crime scene logically permitted an inference that his movement was motivated by guilty knowledge;  therefore, the trial court did not err by giving CALCRIM former No. 372.   Even if there was evidence appellant left the scene to avoid being assaulted, the fact there may have been an alternate explanation for appellant's flight does not compel rejection of the inference that his flight was motivated by consciousness of guilt of the present offenses.   Any alternate explanation did not affect the propriety of giving CALCRIM former No. 372, but merely went to the weight of the evidence.  (Cf. People v. Pitts (1990) 223 Cal.App.3d 606, 879;  People v. Rhodes (1989) 209 Cal.App.3d 1471, 1476–1477.)   Finally, there was strong evidence of appellant's guilt;  therefore, the alleged instructional error was not prejudicial.  (Watson, supra, 46 Cal.2d at p. 836.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. On November 29, 2010, appellant filed a petition for a writ of habeas corpus (B229051) and, on December 7, 2010, this court ordered that the appeal and the petition be concurrently considered.   The petition will be the subject of a separate order..  FN1. On November 29, 2010, appellant filed a petition for a writ of habeas corpus (B229051) and, on December 7, 2010, this court ordered that the appeal and the petition be concurrently considered.   The petition will be the subject of a separate order.

FN2. During closing argument, the prosecutor challenged appellant's alleged unfamiliarity with the gun used in the shooting, referred to appellant as “[a] person who has never fired that gun, according to him” then commented, “never mind the fact that when a search warrant is executed at his house about five six weeks later, a gun's found under his mattress.”   This was the prosecutor's only reference during jury argument to a gun under the mattress..  FN2. During closing argument, the prosecutor challenged appellant's alleged unfamiliarity with the gun used in the shooting, referred to appellant as “[a] person who has never fired that gun, according to him” then commented, “never mind the fact that when a search warrant is executed at his house about five six weeks later, a gun's found under his mattress.”   This was the prosecutor's only reference during jury argument to a gun under the mattress.

FN3. We have set forth in the Factual Summary appellant's testimony concerning the item(s) found under his mattress.   That testimony was reflected on less than one page of the over 300 pages in the reporter's transcript reflecting the People's case-in-chief..  FN3. We have set forth in the Factual Summary appellant's testimony concerning the item(s) found under his mattress.   That testimony was reflected on less than one page of the over 300 pages in the reporter's transcript reflecting the People's case-in-chief.

FN4. Penal Code section 246, provides, in relevant part, “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, [or] occupied building, ․ is guilty of a felony [.]”  (Italics added.)   The court, using CALCRIM No. 965, instructed the jury that “Someone acts ‘maliciously’ when he intentionally does a wrongful act or when he acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”.  FN4. Penal Code section 246, provides, in relevant part, “Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, [or] occupied building, ․ is guilty of a felony [.]”  (Italics added.)   The court, using CALCRIM No. 965, instructed the jury that “Someone acts ‘maliciously’ when he intentionally does a wrongful act or when he acts with the unlawful intent to disturb, defraud, annoy, or injure someone else.”

FN5. CALCRIM former No. 362 stated, “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.   [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance.   However, evidence that the defendant made such a statement cannot prove guilt by itself.”.  FN5. CALCRIM former No. 362 stated, “If the defendant made a false or misleading statement relating to the charged crime, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt.   [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance.   However, evidence that the defendant made such a statement cannot prove guilt by itself.”

FN6. In light of the parties' discussions leading to the trial court's giving of CALCRIM former No. 362, we reject respondent's claim that appellant waived his instructional issue by failing to object below..  FN6. In light of the parties' discussions leading to the trial court's giving of CALCRIM former No. 362, we reject respondent's claim that appellant waived his instructional issue by failing to object below.

FN7. CALCRIM former No. 372, stated, “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.”.  FN7. CALCRIM former No. 372, stated, “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.”

CROSKEY, Acting P. J. ALDRICH, J.