F 372.1 Flight: Preliminary Facts

TABLE OF CONTENTS
F 372.1 Inst 1 Title Modification In Light Of Preliminary Facts
F 372.1 Inst 2 Flight: Required Preliminary Facts
F 372.1 Inst 3 Flight Must Relate To Charged Crime: Preliminary Fact
F 372.1 Inst 4 Flight After Accusation: Knowledge Of Accusation As Preliminary Fact
F 372.1 Inst 5 Flight Must Occur After The Charged Crime
F 372.1 Inst 6 Flight Instruction: Objection By Defendant Precludes Cautionary/Limiting Instruction Which Benefits The Defendant
F 372.1 Inst 7 Improper Assumption That A Crime Was Committed

Return to Series 300 Table of Contents.

F 372.1 Inst 1 Title Modification In Light Of Preliminary Facts

*Modify Title as follows [added language is underlined; deleted language is stricken]:

Defendant’s Alleged Flight

Points and Authorities

See FORECITE F 362.1 Inst 1.

F 372.1 Inst 2 Flight: Required Preliminary Facts

*Add to end of CC 372:

Alternative a [Evidence offered by prosecution: CALCRIM 376 & 1400 Format—Not Alone Sufficient To Convict]:

The prosecution contends you should consider the defendant’s alleged _______________ <insert conduct e.g., departure from the scene of the crime>.

However, you must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:

1. The defendant [left the scene of the alleged crime] [_______________ <describe other alleged flight>]; AND

2. The defendant did so willfully and with the intent of avoiding observation or arrest; AND

3. The defendant intended to avoid observation or arrest because [he/she] [thought [he/she] had done something wrong] [had feelings of guilt]; AND

4. If and when the defendant [thought [he/she] had done something wrong] [had feelings of guilt] such [thought] [feelings] related to the charged crime.

[Insert other material preliminary facts.]

A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.

Unless [all of you] find that all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the defendant’s alleged flight.

If you [all] find the above preliminary fact to exist then you [may] [must] consider the defendant’s alleged flight in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.

Remember that you may not convict the defendant of any crime unless you are convinced that each fact essential to the conclusion that the defendant is guilty of that crime has been proved beyond a reasonable doubt.

Alternative b [No Specification Of Burden]:

Before considering the defendant’s alleged _______________ <e.g., departure from the scene of the crime>, you must find that:

1. The defendant [left the scene of the alleged crime] [_______________ <describer other alleged flight>]; AND

2. The defendant did so willfully and with the intent of avoiding observation or arrest; AND

3. The defendant intended to avoid observation or arrest because (he/she) [thought (he/she) had done something wrong] [had feelings of guilt]; AND

4. The defendant’s [thoughts of wrongdoing] [feelings of guilt] related to the charged crime.

Unless you find all of these preliminary facts to exist, you must the defendant’s alleged flight.

Points and Authorities

Flight: Preliminary Facts—The preliminary facts necessary to raise an inference of consciousness of guilt from flight are:

1. The Defendant Fled—When identity is a contested issue, the jury must proceed logically by first deciding whether the person who fled was the defendant. (People v. Mason (1991) 52 C3d 909, 943 [note that Mason disapproved People v. Anjell (1979) 100 CA3d 189, 199-202 (Mason at 943, fn 13)]; People v. London (1988) 206 CA3d 896, 903-04; People v. Pensinger (1991) 52 C3d 1210, 1243-45; U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.)

2. The Defendant Intended To Avoid Observation Or Arrest – (See People v. Crandell (1988) 46 C3d 833, 869-70; see also People v. Clem (1980) 104 CA3d 337, 344; People v. Watson (1977) 75 CA3d 384, 402-03.) “Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt.” (Emphasis by court.) (People v. Turner (1990) 50 C3d 668, 695; see also Juan H. v. Allen (9th Cir. 2005) 408 F3d 1262, 1277 [“No reasonable trier of fact could find evidence of criminal culpability in the decision of a teenager to run home from the scene of a shooting, regardless of whether the home was in the same general direction as the car of a fleeing suspect”]; U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [discussing four-step analysis required in determining the probative value of flight evidence]; U.S. v. Blanco (9th Cir. 2004) 392 F3d 382, 395-96 [same]; see also FORECITE F 372 Note 13.)

3. Thoughts Of Wrongdoing Or Feelings Of Guilt—See FORECITE F 371(A-2) Inst 1; F 372.3 Inst 4 [Feelings Of Guilt Do Not Reflect Actual Guilt].

4. Flight Must Relate To The Charged Crime—See FORECITE F 372.1 Inst 3.

5. “Alleged” Crime—See FORECITE #F_372.1_Inst_7.

Propriety Of Preliminary Fact Instruction–See EC 403; see also FORECITE F 319 Inst 1.

Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also, FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)

Whether The Jurors “Must” Consider The Evidence After Finding The Preliminary Fact—See FORECITE F 105.2 Inst 1.

Propriety Of Juror Unanimity As To Preliminary Facts—See FORECITE F 3500.3.1.

Not Alone Sufficient To Convict—See FORECITE F 370 Inst 8.

Identification Of Parties—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]

In death penalty cases, additional federal claims should be added including, but not limited to, those in FORECITE CG 13.

Unanimity Use Note: If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally, FORECITE F 100.7 Inst 2.)

CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)

CAVEAT 2: Burden Of Proof In EC 403 Instructions—See CAVEAT 2 in FORECITE F 319 Inst 1.

CALJIC NOTE: See FORECITE F 2.52a.

F 372.1 Inst 3 Flight Must Relate to Charged Crime: Preliminary Fact

*Add to CC 372:

Alternative a:

The prosecution contends you should consider the defendant’s alleged _______________ <insert conduct e.g., departure from the scene of the crime>.

However, you must not consider this evidence for any purpose unless the prosecution has first proved the following preliminary facts by a preponderance of the evidence that:

The defendant’s alleged flight demonstrated (his/her) feelings of guilt as to the charged crime.

[Insert other material preliminary facts.]

A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.

Unless [all of you] find that all [four] of the above preliminary facts have been proved, you must disregard, for all purposes, the defendant’s alleged flight.

If you [all] find the above preliminary fact to exist, then you [may] [must] consider the defendant’s alleged flight in your deliberations. However, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _______________ <insert charged offense>.

Alternative b:

You may not consider the defendant’s alleged [flight] [_______________ <insert alleged furtive act>] for any purpose unless you first determine that the [flight] [_______________ <insert alleged furtive act>] demonstrates a consciousness of guilt as to the charged crime.

Points and Authorities

Relation To Charged Crime As Preliminary Fact.—“[E]vidence that the defendant fled the scene of a crime is admissible to demonstrate consciousness of guilt” when the “consciousness of guilt concern[s] the crime charged ….” (People v. Williams (1988) 44 C3d 1127, 1143, fn 9 quoting U.S. v. Myers (5th Cir. 1977) 550 F2d 1036, 1049.) Accordingly, when there is no basis upon which to determine that the defendant’s consciousness of guilt was directed to the offenses for which he was on trial, as opposed to a different offense, the consciousness of guilt evidence is inadmissible to show the charged crime. (U.S. v. Myers, 550 F2d at 1050; see also People v. Rankin (1992) 9 CA4th 430, 435-36.) However, “[a] reasonable juror would understand ‘consciousness of guilt’ to mean ‘consciousness of some wrongdoing’ rather than ‘consciousness of having committed the specific offense charged.’ ” (People v. Crandell (1988) 46 C3d 833, 871.) Hence, because the applicability of consciousness of guilt to the charged offense is a preliminary fact that is a prerequisite to the admissibility of the evidence, the jury should be instructed that it may not consider this evidence unless it finds said preliminary fact. (See EC 403; see also FORECITE F 319 Inst 1; cf., People v. Mendoza (2000) 24 C4th 130, 180 [“It is for the jury to determine to which offense, if any, the inference of [consciousness of guilt] should apply” ]; People v. Navarette (2003) 30 C4th 458 [same].)

In People v. Van Nguyen (1993) 21 CA4th 518, 538, the court recognized that when the defendant flees from the scene of two alleged crimes (in that case robbery and accessory to a sex charge), flight does not necessarily establish a consciousness of guilt as to both offenses. (See also People v. Kipp (2001) 26 C4th 1100, 1126-27 [probative value of pretrial escape was diminished where defendant had existing death judgment].)

See also FORECITE F 372.2 Inst 2.

Propriety Of Preliminary Fact Instruction.C See EC 403; see also FORECITE F 319 Inst 1.

Preliminary Fact Must Be Proven Beyond A Reasonable Doubt Vis a Vis Essential Facts and Elements of the Offense.—The final paragraph of Alternative a, regarding proof of essential facts, is adapted from CALCRIM 224 and 376. (See also FORECITE F 103.2 Inst 1; FORECITE CG 2.2.)

Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.

Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.

Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

WARNING! Federal constitutional claims may be lost without proper federalization.—To preserve federal claims, counsel should add the applicable constitutional provisions and authority to the above points and authorities and explain how those provisions will be violated under the circumstances of this case. Potential constitutional grounds for this request include, but are not limited to:

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]

Unanimity Use Note.—If unanimity is not required, then the instructions should be directed toward individual jurors. Those finding preliminary fact can consider the evidence, those not finding it cannot. (See generally FORECITE F 100.7 Inst 2.)

CAVEAT 1: Benefits And Risks Of Preliminary Fact Instruction.—Because they involve different standards of proof, preliminary fact instructions under EC 403 require careful strategic consideration. (See CAVEAT 1 in FORECITE F 319 Inst 1.)

CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.

NOTES

[See Brief Bank # B-570 (a,b,c)for additional briefing on this issue.]

RESEARCH NOTES: See Annotation, Admissibility of evidence that defendant escaped or attempted to escape while being detained for offense in addition to that or those presently being prosecuted, 3 ALR4th 1085 and Later Case Service.

CALJIC NOTE: See FORECITE F 2.52f.

F 372.1 Inst 4 Flight After Accusation: Knowledge Of Accusation As Preliminary Fact

*Add to CC 372 when appropriate:

Alternative a:

Alternative a [Preliminary Fact: CALCRIM 375, 1191, 1400 & 376 Format—Not alone sufficient to convict]:

The prosecution contends that you should consider the defendant’s [alleged] _______________ <insert furtive conduct> after being accused of committing the crime.

However, you must not consider any evidence for any purpose unless the prosecution has first proved the following preliminary fact[s] by a preponderance of the evidence:

That the defendant knew (he/she) had been accused of committing the crime.

[Insert other material preliminary facts.]

A fact is proved by a preponderance of the evidence if you find that it is more likely than not that the fact is true. This is a lesser burden of proof than proof beyond a reasonable doubt.

Unless [all of you] find that [all of the above] [this] preliminary fact[s] to exist, you must [disregard the defendant’s [alleged] _______________ <alleged furtive conduct>, for all purposes] [not consider the alleged _______________ <alleged furtive conduct> against the defendant].

If you [all] find the [all of] the above preliminary fact[s] to exist, then you may consider the [alleged] _______________ <alleged furtive conduct> [for the limited purpose of __________________] in your deliberations. However, such evidence is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of _________ <insert charged offense[s]>.

Alternative b:

You may not consider any alleged flight of the defendant after [he][she] is accused of the crime unless you first determine that the defendant knew [he][she] was accused of the crime.

Points & Authorities

Requirement Of Knowledge.—At common law, the jury could not be instructed upon flight unless there was evidence that before the defendant fled, he or she knew that he/she had been accused of the crime. (People v. Hill (1967) 67 CA2d 105, 120-21.) However, PC 1127c eliminated this common law requirement and permits instruction upon flight whenever evidence of flight is relied upon to show guilt. (People v. Pensinger (1991) 52 C3d 1210, 1243.)

Despite PC 1127c it may be argued that unless a defendant has knowledge of both the fact that the crime was committed and that he/she may be accused of that crime, any inference of guilt from flight would be irrational in violation of federal due process. (Fourteenth Amendment; County Court of Ulster County v. Allen (1979) 442 US 140, 157, 165 [60 LEd2d 777; 99 SCt 2213]; see also FORECITE PG VII (C)(9).) Although this argument was rejected in Pensinger, 52 C3d at 1243-44, it may still be viable in federal court.

Moreover, even if due process does not require knowledge when the defendant immediately flees the scene of a crime, at a minimum, knowledge should be required when consciousness of guilt is alleged based upon subsequent flight, such as a failure to make a court appearance. Pensinger specifically acknowledged this distinction and limited its holding to a situation where “a person flees immediately after a crime to avoid detection …” (Pensinger, 52 C3d at 1244; see also U.S. v. Hernandez-Miranda (9th Cir. 1979) 601 F2d 1104, 1106-07 [relevancy of non-immediate flight depends on whether the defendant “knew about the charges against him” ].)

Propriety Of Preliminary Fact Instruction.C See EC 403; see also FORECITE F 319 Inst 1.

Whether the Jurors “Must” Consider the Evidence After Finding the Preliminary Fact.—See F 105.2 Inst 1.

Propriety of Juror Unanimity As To Preliminary Facts.—See F 3500.3.1.

Not Alone Sufficient To Convict.—See FORECITE F 370 Inst 8.

Identification Of Parties.—See FORECITE F 100.2 Note 1.

FORECITE CG 2.2 [Burden Of Proof: Elements And Essential Facts]
FORECITE CG 4.1 [Right To Instruct The Jurors On Defense Theories]
FORECITE CG 5.16 [Consciousness Of Guilt]

CAVEAT 2: Burden Of Proof In EC 403 Instructions.—See CAVEAT 2 in FORECITE F 319 Inst 1.

CALJIC NOTE: See FORECITE F 2.52i.

F 372.1 Inst 5 Flight Must Occur After The Charged Crime

*Add to CC 372:

[Adapt from FORECITE F 362.1 Inst 6 (a & b).]

Points and Authorities

See FORECITE F 362.1 Inst 6 (a & b).

F 372.1 Inst 6 Flight Instruction: Objection By Defendant Precludes Cautionary/Limiting Instruction Which Benefits The Defendant

[Do not give CC 372 over defense objection.]

Points and Authorities

The standard flight instruction (CJ 2.52; CC 372) is a cautionary/limiting admonition, the purpose of which “is to protect the defendant from the jury simply assuming guilt from flight.” (People v. Han (2000) 78 CA4th 797, 807; see also People v. Henderson (2003) 110 CA4th 737, 742; but see FORECITE F 372 Note 10.) Hence, even though the flight instruction is authorized by PC 1127c, it should not be given if the defense objects to it thereby waiving its benefit. “Any one [sic] may waive the advantage of a law intended solely for his benefit.” (CC 2513.)

Moreover, when it comes to cautionary and limiting instructions, great deference should be given to defense counsel’s tactical evaluation of the benefits and risks of the instruction. “A reasonable attorney may . . . tactically conclude[] that the risk of a limiting instruction . . . outweigh[s] the questionable benefits such instruction would provide.” (People v. Maury (2003) 30 CA4th 342, 394; see also People v. Hernandez (2004) 33 CA4th 1040, 1053 [“defense counsel might reasonably have concluded it best if the court did not explain how the evidence could be used”]; In re Seaton (2004) 34 CA4th 193, 200, n. 3 [trial counsel’s tactical decisions are accorded great deference]; People v. Hawkins (1995) 10 CA4th 920, 942.) Such deference is particularly warranted as to instructions such as consciousness of guilt from flight which courts have recognized may help the prosecution more than the defense. (See People v. Williams (1960) 179 CA2d 487, 491; People v. Roy (1971) 18 CA3d 537, 551.)

Finally, the Supreme Court, in People v. Najera (2008) 43 CA4th 1132, 1139 (Najera), held a trial court has no sua sponte duty to give CC 376 because it is merely a more specific application of general instructions governing circumstantial evidence. (See FORECITE F 362.1 Inst 9.) The court’s reasoning in Najera applies equally to similar sorts of instructions, including those on consciousness of guilt. The court explained: “Where . . . an instruction simply informs the jury that a fact or cluster of facts is not, without more, substantial evidence of guilt under the ordinary legal rules set forth elsewhere in the instructions, we have not imposed a duty on trial courts to provide such an instruction sua sponte. For example, the instructions concerning consciousness of guilt (CALJIC Nos. 2.03, 2.04, 2.05 & 2.06) recite that such evidence is not sufficient by itself to prove guilt, yet we have never held that the trial court has a sua sponte duty to instruct the jury accordingly. (See Judicial Council of Cal., Crim. Jury Instns. (Fall 2007) Bench Notes to CALCRIM No. 371 [‘No authority imposes a duty to give this instruction sua sponte’].) . . . As the Court of Appeal pointed out below, ‘an instruction that tells the jury what kinds of rational inferences may be drawn from the evidence does not provide any insight jurors are not already expected to possess.’ [Citation.] Such instructions, while helpful in various circumstances, are not vital to the jury’s ability to analyze the evidence and therefore are not instructions that must be given to the jury even in the absence of a request.” (Najera, supra, 43 CA4th at p. 1139, fn. omitted.)

In sum, permitting the defense to waive the benefits of the flight instruction would be “consistent with the solicitude shown by modern jurisprudence to the defendant’s prerogative to waive the most crucial of rights.” (People v. Robertson (1989) 48 CA3d 18, 61; see also Cowan v. Superior Court (1996) 14 CA4th 367, 371.)