–Consciousness of Guilt and Mens Rea.
Consciousness of guilt evidence is widely accepted as admissible to prove that the defendant was …. consciousness that he has committed some wrongdoing. (People v. Bolin (1998) 18 Cal.4th 297, 327; see also e.g, CC 372 [“awareness of guilt”].)
However, it is also accepted that the defendant’s awareness of some wrongdoing does not necessarily constitute “consciousness of having committed the specific offenses charged.” People v. Thornton (2007) 41 Cal.4th 391, 438-39 [approving the following instruction as “an accurate statement of the law” — “As used in these instructions, consciousness of guilt means consciousness of some wrongdoing, and does not necessarily refer to consciousness of having committed the specific offenses charged.”].)
This is so because — as a matter of reason and commonsense* — defendants do not “tend to flee [or dispose of evidence] only when they have committed certain crimes and not others.” (People v. Wear (Feb. 4, 2020, A152732) ___ Cal.App.1st ___ [pp. 27-28].)
*The propriety of permissive evidentiary presumptions should be evaluated based on “reason and commonsense….” (See People v. Mendoza (2000)24 cal 4th 130, 179; see also People v. Hernández (2007) 151 Cal.App.4th 1154, 1158.
For example, evasive conduct by a defendant following the commission of a homicide does not “support the conclusion that [the defendant] committed premeditated and deliberate murder as opposed to second degree murder or any lesser offense.” (Ibid., see also People v. Millbrook (2014) 222 Cal.App.4th 1122, 1148 [“We do not buy the argument that Millbrook’s flight demonstrates an awareness of guilt of attempted murder but not of attempted voluntary manslaughter.”]; People v. Perez (1992) 2 Cal.4th 1117, 1143, Dis. Opn. [persons who commit second degree murder are no less likely to adopt evasive tactics than those who premeditated or deliberated. “The penalty is unpleasant in both cases.”].)
Thus, consciousness of guilt evidence is not relevant to the defendant’s mental state or intent unless there is a rational connection between the evasive conduct and the alleged intent or mental state. (See e.g., People v. Rundle (2008) 43 Cal.4th 76, 152-54 [“trial court’s modification of the flight instruction correctly stated the law — that the jury could not consider defendant’s flight as evidence of his state of mind when the killings occurred, unless it found “defendant’s conduct in leaving actually reflected such intent or mental state at the time of the crimes.”]; see also People v. Anderson (1968) 70 Cal.2d 15, 32 [While consciousness of guilt evidence may possibly bear on defendant’s state of mind after the killing, it is irrelevant to ascertaining defendant’s state of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it cannot support the double inference that defendant planned to hide his crime at the time he committed it and that therefore defendant committed the crime with premeditation and deliberation.”]; cf., People v. Anderson (1985) 38 Cal.3d 58, 62 [fact that defendant did not flee immediately after the shooting but remained in the house to search for money and something to eat [may have been] … relevant to his state of mind before the event ….”]; People v. Han (2000) 78 Cal.App.4th 797, 808 [flight was relevant as to whether defendant committed an infraction or felony because “many people would run from a felony, but few from an infraction.”])
–Evidence Code Section 355 May Require Limitation Of Consciousness Of Guilt Evidence When Offered To Prove Both The Act And Mental Elements Of The Charges.
Consciousness of guilt is a form of “dual-purpose” evidence because it may be relevant to prove (1) awareness of wrongdoing and/or (2) the defendant’s mental state or intent when the wrongdoing was committed. (Compare Anderson, supra, [no basis for deciding degree] with Perez {“…the conduct of defendant after the stabbing, such as the search of dresser drawers, jewelry boxes, kitchen drawers and the changing of a Band-Aid on his bloody hand, would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing. Here, defendant did not immediately flee the scene. Again, while not sufficient in themselves to establish premeditation and deliberation, these are facts which a jury could reasonably consider in relation to the manner of killing.”])
Thus, consciousness of guilt evidence is subject to EC 355 because it “may be admissible for one purpose or on one theory even though it is inadmissible for other purposes or on other theories.” (People v. Reyes (1976) 62 Cal.App.3d 53, 61-62.)
Accordingly, before consciousness of guilt evidence is admitted the defense should have the right to a preliminary factual finding as to whether the evidence should be admitted and, if so, whether or not the jury’s consideration of the evidence should be limited ” to protect against the jurors’ possible misuse of the evidence through a limiting instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 133-34.)
Evidence Code section 355 states that “[w]hen evidence is admissible . . . for one purpose and is inadmissible . . . for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.” (People v. Nguyen (2015) 61 Cal.4th 1015, 1042; People v. Dennis (1998) 17 Cal.4th 468, 533 [“[S]ection 355 requires the court to give appropriate limiting instructions if properly requested.”].)
(The EC 355 ruling “may be made at any time before the matter is submitted to the trier of fact. Certainly, it is common in jury trials for admonitions concerning limited admissibility to be requested and given when the evidence is introduced, at the close of trial, or both.” (Seibert v. City of San Jose (2016) 247 Cal.App.4th 1027, 1061-62.)
In sum, if the evidence provides a rational basis for the jurors to consider the evidence as to the defendant’s mental state (see e.g., Perez, Rundle) then the judge may allow the jury to consider the evidence for that purpose. (However, it could also be excluded under EC 352.) On the other hand, if the evidence of post crime behavior is a traditional form of consciousness of guilt such as flight or false statements there may well be no rational basis to admit the evidence to prove the mental state or intent elements of the offense. In fact situations such as Anderson, Wear, and Millbrook — where the evidence does not have a commonsense connection to the mens rea of the charges — limited admissibility and a clear limiting instruction is required by EC 353, upon request.
The CSC Has Not Foreclosed Limitation Of Consciousness Of Guilt Evidence Per EC 355
The CSC has not precluded trial courts from limiting the admissibility of consciousness of guilt pursuant to EC 355. It is true that CSC cases have rejected claims that the standard consciousness “direct or compel” the jury to draw “impermissible inferences” regarding the defendant’s mental state at the time of the offense. However, most of those decisions are based on the CSC’s conclusion that the standard consciousness of guilt instructions “do not address the defendant’s mental state at the time of the offense and do not direct or compel the drawing of impermissible inferences in regard hereto.” (People v. Crandell (1988) 46 Cal.3d 833, 871; see also People v. Jackson (1996) 13 Cal.4th 1164, 1223-24; People v. Beck (Dec. 2, 2019, S029843) [pp. 154-56].)
In so doing, the Court has never disagreed with the basic premise expressed in cases such as Anderson, Millbrook and Wear that there is no rational basis upon which to find that the defendant guilty of a greater as opposed to lesser offense based on traditional consciousness of guilt evidence such as flight, destruction of evidence, false statements, etc.
Nor has the Court foreclosed the use of EC 353 to limit the admissibility of consciousness of guilt evidence and to so instruct the jury in situations where the evasive conduct is not rationally probative of the defendant’s mental state.
In sum, notwithstanding the CSC’s conclusion that the standard instructions do not “compel or direct” the jurors to draw impermissible inferences, trial judges are still required to protect against “misuse” of limited admissibility consciousness of guilt evidence under EC 355 principles.
Sample Limiting Instruction No. 1
You may not consider the defendant’s flight as evidence of his state of mind when the killings occurred, unless you find that the defendant’s conduct in leaving actually reflected such intent or mental state at the time of the crimes.
People v. Rundle (2008) 43 Cal.4th 76, 152-54 [Similar instructional language]
Sample limiting instruction No. 2
As used in these instructions, consciousness of guilt means consciousness of some wrongdoing, and does not necessarily refer to consciousness of having committed the specific offenses charged.
[People v. Thornton (2007) 41 Cal.4th 391, 438-39 [This language is an “accurate statement of the law.”]
Sample Instruction No. 3
*Add to CC 371(A):
The defendant’s _______________ <insert alleged act of suppression e.g., destruction of evidence>, if any, is only relevant as to the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had done something wrong. Such evidence may not be considered [in determining the degree of defendant’s guilt] [or] [in determining which of the charged offenses the defendant committed].
F 371(A-2) Inst 2 Suppression Of Evidence: Inapplicable To Nature Or Degree Of Guilt
Sample Instruction No. 4
The prosecution contends (and the defendant denies) that the defendant _____________ [insert conduct e.g., fled, made false statements, etc.]. You may consider evidence of _______________ (insert conduct), together with all other facts and circumstances in this case, in deciding whether the combined circumstances show a consciousness of guilt. However, proof of this circumstance is not sufficient, by itself, to establish the defendant’s guilt. Further, this circumstance has no bearing on the question of whether defendant acted with premeditation and deliberation. Therefore, you must not consider this circumstance as evidence of premeditation or deliberation.
[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS – CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]
Sample Instruction No. 5
This circumstance ____________ (insert conduct e.g., flight, false statement, etc.) has no bearing on the question of whether defendant acted with ___________________ (insert applicable mental state e.g., premeditation and deliberation). Therefore, you must not consider it as evidence of _________________ (mental state).
[See People v. Anderson (CA 1968) 70 C2d 15, 32-33 [73 CR 550]; cf. NORTH CAROLINA PATTERN JURY INSTRUCTIONS – CRIMINAL, NCPI-Crim 104.36 [Flight-First Degree Murder Cases] (TRCC, 1999).]
Sample instruction No. 6
The defendant’s consciousness of guilt, if any, is relevant upon the questions of whether the defendant was afraid of being apprehended and whether the defendant thought [he] [she] had committed a crime. Consciousness of guilt may not be considered [in deciding the degree of defendant’s guilt] [or] [in deciding which of the charged offenses the defendant committed].
