SERIES 300 EVIDENCE
F 372.2 Flight: Limiting Instructions
TABLE OF CONTENTS
F 372.2 Inst 1 Defendant‘s Flight May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt“—Not That Defendant Was “Aware Of His Or Her Guilt“
F 372.2 Inst 2 Flight: Inapplicable To Nature Or Degree Of Guilt
F 372.2 Inst 3 Flight: Limitation When Not Applicable To All Charged Offenses
F 372.2 Inst 4 Flight: Limitation To Applicable Co-Defendant
F 372.2 Inst 5 Flight: Jury Not To Consider Flight Of Uncharged Accomplice As To Defendant
F 372.2 Inst 6 Flight Instruction Improper Where Conduct Is An Element Of The Crime
F 372.2 Inst 7 Flight Not Applicable To Use Of A Vehicle To Evade Arrest (VC 2800.1 & 2800.2)
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F 372.2 Inst 1 Defendant’s Flight May Show That Defendant Thought He Or She Had Done Something Wrong Or Had “Feelings Of Guilt”—Not That Defendant Was “Aware Of His Or Her Guilt”
*Modify CC 372, sentence 1 as follows [added language is underlined; deleted language is stricken]:
If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt [thought (he/she) did something wrong] [had feelings of guilt].
Points and Authorities
See FORECITE F 371(A-2) Inst 1.
F 372.2 Inst 2 Flight: Inapplicable To Nature Or Degree Of Guilt
*Add to CC 372:
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 determining the degree of defendant’s guilt] [or in determining which of the charged offenses the defendant committed].
Points and Authorities
See FORECITE F 371(A-2) Inst 2; see also FORECITE F 376 Inst 2.
CALJIC NOTE: See FORECITE F 2.52c.
F 372.2 Inst 3 Flight: Limitation When Not Applicable To All Charged Offenses
*Add to end of CC 372 when appropriate:
Evidence has been received that the defendant ______________ <insert flight evidence, e.g., departed from the scene of the crime>. At the time, it was admitted you were admonished that this evidence may only be considered, if at all, in deciding Count _____. You are again instructed that you must not, in any manner, consider this evidence as to Count _____.
Points and Authorities
Consciousness Of Guilt Must Be Limited To Applicable Offense.—A defendant may be tried on two or more counts and raise a defense of mistaken identity only as to a single charge. However, if there is evidence of flight on two or more counts, the jury might construe CC 372 as standing for the principle that evidence of flight may be considered as to all counts notwithstanding the preliminary issue of identity. In such a case, the above clarification should be given. (See People v. London (1988) 206 CA3d 896, 903-04 [CJ 2.52 should be modified in a proper case]; see also, U.S. v. Felix-Gutierrez (9th Cir. 1991) 940 F2d 1200, 1207 [probative value of flight depends, inter alia, upon whether consciousness of guilt concerns the crime charged].)
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
CALJIC NOTE: See FORECITE F 2.52b.
F 372.2 Inst 4 Flight: Limitation To Applicable Co-Defendant
*Add to CC 372:
Option 1 [CC 371 adaption]:
[If you conclude that a defendant tried to flee you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty.]
Option 2:
You are instructed that there is no evidence of flight applicable to __________ <insert name of defendant to whom flight evidence is inapplicable> and therefore you should not consider flight when determining whether or not [his] [her] guilt has been proven beyond a reasonable doubt. By so limiting this instruction, I have not intended to express any opinion upon the believability or probative value of any evidence of flight which may be applicable to the other defendant[s]. The probative value of such evidence, if any, is a matter solely for your determination.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request.—[See CALCRIM Motion Bank # CCM-001.]
Limitation Of Flight To Applicable Defendants.—When there is sufficient evidence of flight as to some defendants but not others, the flight instruction should be limited accordingly. (People v. Pitts (1990) 223 CA3d 606, 877-79; People v. Mora (1956) 139 CA2d 266, 274; see also CC 371, final paragraph.) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction applies actually fled. (Pitts, 223 CA3d at 877.)
(See also FORECITE F 372.2 Inst 5.)
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
NOTES
If it is determined that the above instruction is insufficient to avoid prejudice, an alternative would be to inform the jury that the specific conduct of the defendant who did not flee (e.g., changing of residences) does not constitute flight. (Pitts, 223 CA3d at 877.)
CALJIC NOTE: See FORECITE F 2.52d.
F 372.2 Inst 5 Flight: Jury Not To Consider Flight Of Uncharged Accomplice As To Defendant
*Add to CC 372:
You are instructed that any alleged flight by __________ <insert person who fled> does not show a consciousness of guilt on the part of the defendant. Therefore you should not consider _________’s flight when determining whether or not the defendant‘s guilt has been proven beyond a reasonable doubt. By so limiting this instruction, I have not intended to express any opinion upon the believability or probative value of any evidence of flight which may be applicable to the other defendant[s]. The probative value of such evidence, if any, is a matter solely for your determination.
Points and Authorities
Jury Not To Consider Flight Of Uncharged Accomplice.—When there is sufficient evidence of flight as to some defendants but not others, the flight instruction should be limited accordingly. (People v. Pitts (1990) 223 CA3d 606, 877-79; People v. Mora (1956) 139 CA2d 266, 274.) Any such modification or limitation of the flight instruction should avoid the implication that the defendants to which the instruction applies actually fled. (Pitts, 223 CA3d at 877.)
The same concerns apply to the flight of an uncharged accomplice. In the trial of a single defendant for crimes committed with others, CC 372 [formerly CJ 2.52] has the potential to cause serious prejudice to the defendant’s right to a fair trial. Where the prosecutor relied on evidence and argument of an uncharged coperpetrator‘s flight to support a finding of the defendant‘s guilt, that potential was realized.
CC 372 provides as follows:
If the defendant fled [or tried to flee] (immediately after the crime was committed/ [or] after (he/she) was accused of committing the crime), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant fled [or tried to flee], it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled [or tried to flee] cannot prove guilt by itself.
The problem is alarmingly simple, and is alarmingly serious. Essentially, the instruction gives the jury two rules in plain language:
(1) “The defendant’s”C any defendant’s—flight after a crime, buy itself, does not establish that defendant’s guilt.
(2) The defendant’s flight after a crime is relevant and may be considered in drawing an inference that the defendant is guilty.
There is nothing ambiguous about the instruction; it sets forth both rules in straightforward fashion. Of course, in a trial of a single defendant, where evidence of flight involves only that person, the distinction emphasized above is meaningless. But where the prosecutor expressly relies on a non-defendant’s flight to argue the defendant’s guilt, the distinction becomes significant, and there is no reason why a jury would ignore it.
Even if the instruction is viewed as ambiguous with respect to the “person-defendant” distinction, “[t]he relevant question in reviewing defendant’s challenge is whether there is a ‘reasonable likelihood’ that the jury understood the charge as defendant asserts. [Citations.]” (People v. Petznick (2003) 114 CA4th 663, 678; Estelle v. McGuire (1991) 502 US 62, 72 [116 LEd2d 385; 112 SCt 475].)
Accordingly, CC 372 should be modified as set forth above when appropriate.
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
NOTES
If it is determined that the above instruction is insufficient to avoid prejudice, an alternative would be to inform the jury that the specific conduct of the defendant does not constitute flight. (Pitts, 223 CA3d at 877.)
For additional briefing on this issue, see Brief Bank # B-981.
(See also FORECITE F 372.2 Inst 4.)
CALJIC NOTE: See FORECITE F 2.52o.
F 372.2 Inst 6 Flight Instruction Improper Where Conduct Is An Element Of The Crime
*Add to CC 372 where appropriate:
For the purposes of this instruction the term “after the commission of a crime” means _________ <insert the rule describing when the crime was complete: e.g., when the loot was carried to a position of safety—robbery, etc.>.
You may not rely on flight which occurred before the crime was completed such as _________ <insert inapplicable flight: e.g., immediate flight from prison in escape charge; flight from officer in VC 2800.1/VC 2800.2/VC 2800.3 charge; fleeing with the loot immediately after a robbery charge>.
Points and Authorities
The essence of flight is that consciousness of guilt may be inferred when the defendant fled from the scene of the crime. In other words, when one flees after a crime has been committed, it may be inferred that the defendant is exhibiting a consciousness of guilt. However, this rationale does not apply when the flight is itself an element of the crime or an element of the continuing course of conduct constituting the crime. In such a situation the flight did not occur after the crime. Hence, while such flight may be considered as evidence relevant to prove the element of the offense to which it relates, it should not be “double counted” so as to permit the added inference that defendant exhibited a consciousness of guilt after the crime was committed. (See also FORECITE F 372 Note 5.)
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]
In death penalty cases additional federal claims should be added including, but not limited to, those in FORECITE CG 13.
CALJIC NOTE: See FORECITE F 2.52j.
F 372.2 Inst 7 Flight Not Applicable To Use Of A Vehicle To Evade Arrest (VC 2800.1 & 2800.2)
*Add to CC 372:
This instruction does not apply to the defendant’s alleged conduct of using a vehicle to evade an officer.
Points and Authorities
This Court Has The Power And Duty To Grant This Instruction Request.—[See CALCRIM Motion Bank # CCM-001.]
The CALCRIM Deficiency.—The flight instruction is improper when applied to the defendant’s alleged use of a vehicle to evade an officer. (People v. Paysinger (2009) 174 CA4th 26.)
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 5.1 [Highly Prejudicial Or Inflammatory Evidence]
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.
