PEOPLE v. NEWMAN (1984)

On appeal from a judgment of conviction for burglary and receiving stolen property, appellant, Eugene Carl Newman, contends that the court erred (1) in admitting certain evidence, (2) in instructing the jury, (3) in overruling a defense objection to a portion of the prosecutor's argument to the jury, and (4) in permitting the jury to convict appellant of both offenses.   We agree with the last point and reverse the judgment in part for that reason.

I. STATEMENT OF THE FACTS

Jack Todd, who lived in San Jose, owned a 1970 Lincoln Continental automobile, white with a black vinyl top.   Sometime during October 1981, the Lincoln was stolen from Mr. Todd's garage.   When Todd next saw his car at a towing yard, it had different license plates, and the ignition had been tampered with so that the key would not fit.   Mr. Todd never gave appellant permission to take or drive his vehicle.

Judith Boswell and her husband lived at 7240 Foothill Road in Pleasanton.   This is an isolated home in a rural area.   Mr. and Mrs. Boswell made it their practice to observe strange cars parked alongside the road, because the homes in the neighborhood had ample parking space in their driveways for legitimate visitors.

When Mrs. Boswell left her home in the morning on November 6, 1981, it was locked.   She returned about 11:45 a.m. and saw a black over white two-door Lincoln Continental parked about 100 feet down the road from her driveway.   She had never seen that car in her neighborhood before.   As Mrs. Boswell drove up the driveway into the garage, she could see a figure running across the dining room in her home, moving from the living room to the bedroom where a sliding glass door is located.   Mrs. Boswell drove into her garage and entered her house.   She saw two television sets and some silver items piled in the entry hall.   She went into the master bedroom and found that all the drawers were open, her husband's dresser was open, and his collector's box had been overturned on the bed.   She called the police and gave them a description of the vehicle she had seen.   They told her to get out of the house and out to the road.   Mrs. Boswell returned to the garage, gathered her children, and, as they ran towards the road, she heard the sound of a vehicle pulling away.   The sound came from the place where the Lincoln had been parked.

Mrs. Boswell testified that when she called the police, she reported that her husband's pocket watch was missing.   Neither of the Boswells had given appellant permission to enter their home or remove any of their property.

The burglary report was immediately broadcast on the police radio.   At 12:06 Pleasanton Police Officer Lee Reynolds heard the report which described the possible suspect vehicle as a black over white Lincoln Continental.   Reynolds responded to the general area.   As he was driving east on Sycamore Road at about 12:12 p.m., he observed a black and white Lincoln Continental about a quarter mile away from him coming toward him.   He had seen no similar cars in the area.   Reynolds radioed the fact that he had seen the Lincoln and slowed down to observe the vehicle and the driver as it passed him.   Then he made a U-turn and began following the Lincoln.   Appellant was driving the Lincoln;  he was the only person in the car.   As Officer Reynolds was following the Lincoln, it pulled into a driveway on Sycamore Road and stopped.   Then appellant got out of the Lincoln and started to walk away.   Reynolds stopped his police car approximately a car length behind the Lincoln and ordered appellant to stop.   Appellant walked toward the side gate of the residence, opened it, and started running.   As appellant ran through the gate, Officer Reynolds broadcast on his radio that he was pursuing the suspect on foot.

Appellant ran through several back yards until he reached Amber Lane, with Officer Reynolds still in pursuit.   The chase then continued down Amber Lane to Hamilton Road, where appellant turned west and Officer Reynolds lost sight of him.   When Reynolds first observed appellant, he radioed his description as a male Mexican-American, approximately 30 years old, with black hair, moustache, blue jeans, and a blue jacket.   After appellant disappeared on Hamilton, Reynolds radioed appellant's direction of flight and requested that a perimeter be set up around the general area.   Reynolds also asked for a canine unit.

Approximately 15 officers from the Pleasanton Police Department and the Alameda County Sheriff's office responded.   Among them were Pleasanton Police Officer Mark Redeker and his dog Kimo.   They arrived about a half hour after the broadcast.   Before Redeker and Kimo arrived, Reynolds and other officers searched the houses and yards in the area where Reynolds lost sight of appellant.   When Redeker and Kimo arrived, Reynolds took them back to the Lincoln.   From the front seat of the Lincoln, Redeker recovered a piece of clothing to use as a tracking scent.   Kimo was allowed to smell the cloth and play with it for a short time, but he did not pick up a scent on the asphalt, so the group moved to an area south of the intersection of Hanover Court and Hamilton, where there was some vegetation and dirt.   The officers observed some fresh footprints leading through the grass, and the dog immediately began tracking from them.   The tracks led south from the last house on Hanover Court.   The tracks were fresh because it had recently rained, and the grass was wet.   The grass was crushed, and the direction of the grass in the tracks faced south.   The area through which the officers and dog were tracking was very hilly, intersected by a creek and containing a grape orchard with a minimum of 50 acres.   Periodically the officers observed footprints leading southwest.   They followed the trail until they reached Interstate 680, where there was a large abandoned cement block house.   At that point a detective reported finding a pair of gloves on the other side of the freeway.   The officers drove to that area, because Redeker did not want to track his dog across the freeway.   Reynolds observed the gloves;  they were white, made of cotton fabric, and had fresh mud on them.   At this time they heard a radio report that some construction workers had observed a suspect.   Other patrolmen directed Reynolds and his companions to some railroad tracks near the freeway;  they followed these southward.

As the officers started tracking along the railroad right of way with the dog, a county work crew stopped them and asked if they were looking for something.   When the officers gave the workers a description of their suspect, the county employees told the officers to follow their truck.   The workers led the officers down Encinal Road to a point where the railroad tracks intersected the freeway.   The officers again started tracking with the dog in that area and noticed fresh footprints which appeared to have been made by a tennis shoe.   After tracking for approximately 200 yards, Reynolds and his companions heard on the radio that county sheriff's units and detectives had spotted a suspect further along Encinal Road.   When Officer Reynolds and his companions reached that area, Reynolds saw Sergeant Reasoner of the sheriff's department taking appellant into custody.   Appellant was wearing blue jeans, tennis shoes, but no shirt.   At the time appellant was taken into custody, Officer Reynolds examined the shoes he was wearing and observed that they were of the same type that made the tracks he had followed.   In Officer Reynolds' words, “[T]hey were very definitely the style of the print.”

Sergeant Reasoner testified that at about 12:30 he and Pleasanton Detective Aracne had heard the various radio reports and were driving along the Pleasanton-Sunol Road when they saw a suspect who matched the description of the fleeing burglar.   When Reasoner first saw this man, he was standing under a tree, but disappeared from sight as the officers approached the area where they had seen him.   Reasoner and Aracne searched the area for about 10 to 15 minutes and found appellant about 50 to 75 feet from where they first spotted him.   Appellant was lying flat on the ground, face down, surrounded by high grass.

Later that afternoon Mrs. Boswell was taken to Sycamore Road, where appellant had abandoned the Lincoln Continental.   Sheriff's Deputy Adams testified that when he inspected the car, he noticed that the ignition lock had been tampered with and that a screwdriver and a pocket watch were lying on the front seat.   At the scene and again at trial Mrs. Boswell positively identified that watch as her husband's.

Appellant did not testify and presented no defense.

II. DISCUSSION

A. The Dog Tracking Evidence 1

B. Dog Tracking Instruction 2

C. Instruction About Other Offenses

D. Griffin Error 3

E. Flight Instructions

The trial court instructed the jury on flight:  “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.”

 Relying on a growing line of recent decisions of the Courts of Appeal, appellant contends that the trial court erred in delivering this instruction because identity of the perpetrator was in issue.   We disagree with the decisions upon which appellant relies and hold that the trial court properly instructed the jury on flight.

Penal Code section 1127c provides that where the prosecution relies on evidence of flight as tending to show guilt, the court must instruct the jury in substantially the form used by the trial court herein, and that no further instruction on the subject is necessary.⁴  The statute was enacted to abolish the rule stated in early California cases that the jury could not be instructed on flight as tending to show guilt unless it was shown that the defendant knew he or she had been accused of commission of the charged offense.  (People v. Olea (1971) 15 Cal.App.3d 508, 515, 93 Cal.Rptr. 265;  People v. Hill (1967) 67 Cal.2d 105, 120–121, 60 Cal.Rptr. 234, 429 P.2d 586.)

In People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669, Division Four of this court held that the flight instruction should not be given where identity is a contested issue.  (Id., at p. 199, 160 Cal.Rptr. 669.)   Numerous decisions, including our own, have followed that holding without question.  (E.g., People v. Salazar (1980) 108 Cal.App.3d 992, 998, 167 Cal.Rptr. 38 [Division One];  People v. Moringlane (1982) 127 Cal.App.3d 811, 821, 179 Cal.Rptr. 726 [Fourth District];  People v. Malgren (1983) 139 Cal.App.3d 234, 242, 188 Cal.Rptr. 569 [this Division].)   Our analysis of Anjell, of the cases upon which it relied, and of past decisions convinces us that a flight instruction may properly be given where identity is a contested issue.

Evidence of flight may be presented in a variety of factual circumstances, but it is always admissible for one reason—because it is relevant to show consciousness of guilt in the person fleeing.   Decisions discussing the admissibility of flight evidence and the proper instructions to be given on the subject have tended to fall into four categories.   Because this phenomenon explains how the erroneous Anjell holding came about, we examine it briefly.

Accomplice Corroboration

Penal Code section 1111 provides that before a conviction can be had upon the testimony of an accomplice, it must be corroborated by evidence which “tend [s] to connect” the defendant with commission of the offense.⁵  A long line of decisions has found that flight of the defendant is corroborating evidence which “tend[s] to connect” defendant with the offense.  (E.g., People v. Taylor (1924) 70 Cal.App. 239, 244–245, 232 P. 998;  People v. Nikolich (1928) 93 Cal.App. 356, 358, 269 P. 721;  People v. Mazzola (1929) 99 Cal.App. 682, 685, 279 P. 211;  People v. Rice (1938) 29 Cal.App.2d 614, 620, 85 P.2d 215;  People v. Hoyt (1942) 20 Cal.2d 306, 313, 125 P.2d 29;  People v. Santo (1954) 43 Cal.2d 319, 327, 273 P.2d 249;  People v. Moore (1963) 211 Cal.App.2d 585, 589, 592, 27 Cal.Rptr. 526.)

Consciousness of Guilt

The proposition that flight of a suspect is relevant to prove his or her consciousness of guilt and that the jury may be so instructed has been firmly established in an unbroken line of decisions dating back over 100 years.   (People v. Stanley (1873) 47 Cal. 113, 118;  People v. Wong Ah Ngow (1880) 54 Cal. 151, 153;  People v. Giancoli (1888) 74 Cal. 642, 644, 16 P. 510;  People v. Flannelly (1900) 128 Cal. 83, 87–89, 60 P. 670;  People v. Erno (1925) 195 Cal. 272, 232 P. 710;  People v. Hall (1926) 199 Cal. 451, 460, 249 P. 859;  People v. Murguia (1936) 6 Cal.2d 190, 192, 57 P.2d 115.)

This has been the holding even where identity has been raised as an issue by the defense.  (People v. Waller (1939) 14 Cal.2d 693, 702, 96 P.2d 344;  People v. Gryszkiewicz (1948) 88 Cal.App.2d 230, 198 P.2d 585;  People v. Leach (1949) 90 Cal.App.2d 667, 670–671, 203 P.2d 544;  People v. Kittrelle (1951) 102 Cal.App.2d 149, 156–158, 227 P.2d 38;  People v. Davis (1957) 48 Cal.2d 241, 251, 309 P.2d 1;  see also People v. Yoshimura (1979) 91 Cal.App.3d 609, 622–623, 154 Cal.Rptr. 314.)

Insufficient Flight Evidence

There is no question that where evidence of flight is lacking, it is error to instruct the jury on the subject.  (E.g., People v. Fremont (1937) 22 Cal.App.2d 292, 300, 70 P.2d 1005;  People v. Watson (1977) 75 Cal.App.3d 384, 403, 142 Cal.Rptr. 134;  People v. Clem (1980) 104 Cal.App.3d 337, 344, 163 Cal.Rptr. 553.)

Instruction Does Not Assume Guilt

In 1880 the Supreme Court held that it was error to instruct the jury that flight gave rise to a presumption of guilt.  (People v. Wong Ah Ngow, supra, 54 Cal. 151, 152–153.)   Twenty years later the court approved an instruction stating that the jury could consider defendant's flight as tending to show his consciousness of guilt.  (People v. Flannelly, supra, 128 Cal. 83, 88, 60 P. 670.)

Numerous decisions since Flannelly have agreed with its holding.   In People v. Daener (1950) 96 Cal.App.2d 827, 216 P.2d 511, the court said that the instruction on flight does not tell the jury that defendant fled, and it does not presuppose commission of the crime charged.   It assumes neither the flight nor the guilt of the defendant.  (Id., at p. 833, 216 P.2d 511;  see also People v. Cannady (1972) 8 Cal.3d 379, 391–392, 105 Cal.Rptr. 129, 503 P.2d 585 [refusing to disapprove the flight instruction, and quoting Daener with approval].)

Having this background in mind, we turn to our analysis of the Anjell decision.

Defendant was charged with two armed robberies.  (People v. Anjell, supra, 100 Cal.App.3d 189, 193, 160 Cal.Rptr. 669.)   Both occurred on October 22, 1977.   In one, defendant and a crime partner robbed a gas station employee of station and personal funds.   In the other, the two men robbed an office worker at a bus depot.   Defendant presented two alibi witnesses who said he had been in their presence at the time of both robberies.  (Id., at pp. 194–195, 160 Cal.Rptr. 669.)

The court instructed the jury on flight, apparently relying on the prosecutor's citation to three instances of conduct allegedly showing flight:  (1) the robbers had fled the crime scenes;  (2) defendant made statements about possibly going to Mexico;  and (3) a defense witness said defendant moved out of the area shortly after October 22.  (Id., at p. 199, 160 Cal.Rptr. 669.)

The latter two instances were readily disposed of.   Appellant's statements about leaving for Mexico were not evidence of flight, but merely of idle words, and the evidence about moving away was inadmissible hearsay and was of no evidentiary value as to flight.  (Id., at pp. 200–201, 160 Cal.Rptr. 669.)

Regarding evidence that the perpetrators fled the crime scene, the Anjell court might well have simply held that this evidence alone was insufficient to support the giving of a flight instruction, citing, for example, People v. Watson, supra, 75 Cal.App.3d 384, 403, 142 Cal.Rptr. 134.   Instead, the court's discussion of the issue proceeded as follows:  “The fact that the perpetrators fled the scene of the crime cannot warrant an instruction on flight where identity is a contested issue.”  (People v. Anjell, supra, 100 Cal.App.3d at p. 199, emphasis added, 160 Cal.Rptr. 669.)   This is the holding for which Anjell has been cited repeatedly and with which we disagree.

“Flight is relevant because it is a factor ‘tending to connect an accused with the commission of an offense.’  (People v. Moore (1963) 211 Cal.App.2d 585, 600 ․ 27 Cal.Rptr. 526.)”  (People v. Anjell, supra, 100 Cal.App.3d at p. 199, 160 Cal.Rptr. 669.)   It is with this statement that we find the Anjell court's analysis went astray.   From what follows, it is clear that the court's premise and the meaning it gave the quoted statement was:  flight is relevant only because it is a factor tending to connect an accused with the commission of an offense.   The “ ‘tending to connect’ ” language comes from the accomplice-corroboration cases.   As we discussed above, Penal Code section 1111 requires that an accomplice's testimony be corroborated by evidence which “tend[s] to connect” defendant with the crime.   Thus, evidence of flight in such cases is generally discussed as being relevant only for that purpose.   In the consciousness-of-guilt cases, however, evidence of flight is seen as relevant not “only because” it “tend[s] to connect” defendant with the crime, but because it tends to show his or her consciousness of guilt.   (People v. Hill, supra, 67 Cal.2d at p. 120, 60 Cal.Rptr. 234, 429 P.2d 586.)

“The fact that a robber fled the scene is of no assistance to a jury where the defendant does not dispute that all elements of the crime were present but denies that he was the robber.   This is true because the instruction becomes relevant only if the sole contested issue in the case—the defendant's identity as the robber—is assumed.   Even if the robber's flight tends to show his (the robber's) guilt, this is immaterial unless the jury believes that the defendant is the robber.   If such is the case, there is no need to ‘connect’ him with the crime any further.”  (People v. Anjell, supra, 100 Cal.App.3d at pp. 199–200, 160 Cal.Rptr. 669.)

 We disagree with this analysis.   It does not follow from the fact that defendant relies on alibi that he or she does not dispute the presence of any of the other elements of the crime.   In a robbery case where defendant relies on alibi, if the jury determines that defendant was the perpetrator, it still must find that the requisite actus reus and mens rea were present.   In the case at bench, once the jury determined that appellant was the man seen in the victim's house and driving away from the crime scene, it still had to find that the defendant entered the structure with intent to take and carry away the personal property of the victims and with intent permanently to deprive them of it.  (See People v. Gryszkiewicz, supra, 88 Cal.App.2d at pp. 232, 237, 198 P.2d 585.)   Thus, once the jury “connect[s]” defendant with the crime by establishing that he is the perpetrator, his flight remains relevant as showing his consciousness of guilt.

The Anjell court continued:  “It has often been stated that a flight instruction which assumes ‘neither the guilt nor the flight of the defendant’ is not erroneous.  [Citing People v. Cannady, supra, 8 Cal.3d 379, 392, 105 Cal.Rptr. 129, 503 P.2d 585, and People v. Daener, supra, 96 Cal.App.2d 827, 832–833, inter alia, 216 P.2d 511.]   It may be inferred that an instruction on flight is improper if it does appear to assume such ‘guilt.’ ”  (People v. Anjell, supra, 100 Cal.App.3d at p. 200, 160 Cal.Rptr. 669.)   This is inaccurate.  Cannady and Daener did not hold that a flight instruction “which” assumes neither guilt nor flight is proper.   They held that the statutory flight instruction does not assume guilt or flight.   As we have seen, it is a truism that an instruction which assumes guilt or flight is improper, but that problem does not appear to have arisen since 1880, when People v. Wong Ah Ngow, supra, 54 Cal. 151, laid it to rest.

The Anjell court concluded with a discussion of People v. Mora (1956) 139 Cal.App.2d 266, 293 P.2d 522.   In that case, Mora, Gallardo, and Inocencio robbed an Oakland sporting goods shop, “and the three robbers fled.”   The three presented an alibi defense, admitting being together but denying perpetrating the robbery.  (Id., at p. 269, 293 P.2d 522.)   All three complained of the giving of the flight instruction.   Inocencio and Gallardo had testified that the day after the robbery they failed to return to their home in Oakland, but went to Richmond to spend the night after learning that the police were inquiring about one of them.   The court viewed this as substantial evidence of flight supporting the giving of the instruction as to them.   As to Mora, the court said, “It is true that there was no evidence of flight insofar as [he] is concerned.   The instruction should have been limited to the other two appellants.”  (Id., at p. 274, 293 P.2d 522.)   The Anjell court viewed Mora as indicating support for its holding that, where a defendant presents an alibi defense, giving an instruction on flight erroneously assumes defendant's guilt where the only evidence of flight is that the perpetrator (and not defendant) fled.  Anjell therefore concluded that where identity is in issue, the flight instruction should not be given.

We read Mora differently.   Although in its statement of facts the court said the robbers “fled,” this alone was simply insufficient evidence of flight.   Thus Mora and Anjell are both properly viewed as cases wherein there was insufficient evidence of flight to support the giving of the statutory instruction.

We note that in Mora, Anjell, and the cases which have followed Anjell, the “error” in giving the flight instruction is invariably found to be harmless.   The reason given in each decision is that the instruction tells the jury that flight “if proved ” may be considered as showing consciousness of guilt.   We view the italicized language in the statutory instruction not as rendering the “error” harmless, but as showing that no error in fact occurs in these cases.   The instruction is self-limiting and is properly given in every case where there is substantial evidence of flight.

(6) Conclusion

Where there is substantial evidence of flight by the perpetrator of the crime in question and/or by the defendant, the flight instruction is properly given, regardless of the fact that defendant's identity as the perpetrator is in issue.

In this case there was evidence given by Judith Boswell that the burglar fled, and Officer Reynolds testified that appellant fled.   Thus the instruction was properly given.

(F) Double Conviction 6

III. DISPOSITION

 The judgment of conviction for receiving stolen property is reversed.   The judgment is affirmed in all other respects.

I concur in the judgment.

Appellant's opening brief states at page 31, “[t]he identity of the perpetrator was the key issue at trial.”   Appellant misstates, if not, certainly understates the case of record.   Essentially it could only develop in evidence that the perpetrator's identity would be the sole issue at trial.   Unquestionably, the Boswells' residence was burglarized.   His pretrial plea of “not guilty” notwithstanding, appellant never, at trial or before this court, contended otherwise.

Appellant's misperception of the record evidence accounts for his misplaced reliance on People v. Anjell (1979) 100 Cal.App.3d 189, 160 Cal.Rptr. 669 as authority for his contention that “[t]he trial court erred in delivering CALJIC 2.52 to the jury because a ‘Flight After the Crime’ instruction may not be given when the issue at trial is identity.”

Anjell's “rule,” stated clearly at page 199, is that “[t]he fact that the perpetrators fled the scene of the crime cannot warrant an instruction on flight where identity is a contested issue.”  (Emphasis added.)

My point, of course, is that on this record People v. Anjell, supra, is clearly inapposite.   While “identity” was essentially the sole issue at trial, it cannot be said that at trial the issue was “contested.”   Appellant introduced no evidence whatsoever at trial in his defense.

The majority opinion, at page 22, seems to suggest that Anjell's holding is dictum.   If it is dictum, apparently it is dictum destined to be quoted as a rule.   In any case, the “rule” is one of limited application.

Appellant, constitutionally within his right, submitted resolution of the issue of the Boswells' house burglar's identity on the state of the prosecution's evidence.   It can be fairly stated then that the evidence as to the true identity of the burglar was not in conflict or a “contested” issue within the meaning and context of People v. Anjell, supra, 100 Cal.App.3d 189, 160 Cal.Rptr. 669.   In Anjell, a two-count robbery prosecution, Anjell countered or “contested” positive victim's in-court identification and police testimony that he had confessed both robberies with alibi testimony.   If found to be credible, his defense likely would have absolved Anjell of any complicity.   Apparently, the jury concluded that Anjell's alibi witnesses were honestly mistaken as to either the date or time, if not both, that Anjell was allegedly in their presence.

However, I do not read Justice Rattigan's opinion in Anjell at page 199, 160 Cal.Rptr. 669 to state that evidence of flight is relevant only because it is a factor “tending to connect an accused with the commission of the offense.”   The Anjell court cites as authority directing the reader's attention to People v. Moore (1963) 211 Cal.App.2d 585 at page 600, 27 Cal.Rptr. 526.   Surely, the Anjell court understood that People v. Moore, supra, at page 600, 27 Cal.Rptr. 526 reiterated the settled rule that “․ flight immediately after the commission of an offense is a circumstance that may be considered, with other facts in the case, as tending to show a consciousness of guilt.”

But I do find the Anjell court's analysis persuasive when it astutely concludes that essentially evidence that the perpetrators immediately fled the scene of the crime is of no material assistance to a jury faced solely with the duty of deciding whether the accused is in fact the fleeing perpetrator that made good his escape.   If the jury decides in a given trial that the accused is the person that made good his flight from the crime scene, perforce that factual finding, if valid, must logically be based on substantial evidence other than the fact of immediate flight.   CALJIC No. 2.52 so dictates.   If, for example, substantive eyewitness testimony serves to convince the fact finders that the accused is the offender that fled, the case is ended for all practical considerations.   Obviously, in such a trial, which incidentally is not atypical, CALJIC No. 2.52 only serves to beg the question, and in a close case it conceivably may mislead the jury to an erroneous decision which would defy detection upon appellate review.

Of course the difficult species of flight evidence from the trial court's perspective occurs when the prosecution relies on evidence that the defendant quit the vicinity of the crime situs days after the fact.   When such evidence is received, the defendant, supplementing the alibi defense, usually counters with evidence rationally explaining his departure.   An issue of fact thereby surfaces requiring the jury's determination.   Such was the case in People v. Anjell, supra (see discussion at 100 Cal.App.3d p. 201, 160 Cal.Rptr. 669).   In Anjell, of course, the flight evidence relied upon was inadmissible hearsay;  there was no evidence that Anjell “had actually gone away․”  (People v. Anjell, supra, 100 Cal.App.3d at p. 201, 160 Cal.Rptr. 669.)   Consequently, the giving of CALJIC No. 2.52 was correctly held to be error.  (Ibid.)  However, People v. Anjell, as I read the case, would not bar a CALJIC No. 2.52 charge if this species of flight evidence had been otherwise lawfully admissible.

I find no reason to disapprove People v. Anjell in the abstract, and as aforestated, it can have no application in the case at bench.   The integrity of this judgment is unassailable.   In light of appellant's inability to contest the “sole” issue, i.e., the burglar's identity, the “rule” of Anjell is no bar.   CALJIC No. 2.52 could only serve to assure appellant due process.   On this record it is irrefutable that appellant was found guilty because he was identified as the sole occupant fleeing in a suspected getaway car which upon search revealed Mr. Boswell's stolen pocket watch.

FOOTNOTES

1.   Part II A of this opinion is not certified for publication.

2.   Parts II B and II C of this opinion are not certified for publication.

3.   Part II D of this opinion is not certified for publication.

4.   Penal Code section 1127c provides:  “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:“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.“No further instruction on the subject of flight need be given.”

5.   Penal Code section 1111, as enacted in 1872, provided:  “A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense;  and the corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.”In 1911 and 1915, section 1111 was amended (Stats.1911, ch. 292, § 1, p. 484;  Stat.1915, ch. 457, § 1, p. 760), so that it now reads:  “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense;  and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.“An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given.”

6.   Part II F of this opinion is not certified for publication.

BARRY–DEAL, Associate Justice.

SCOTT, J., concurs.