People v. Anderson (2018) 5 Cal. 5th 372, 391-93 recognized that evidence showing consciousness of guilt, such as flight or escaping from jail, is generally admissible within the trial court’s discretion. Thus, the existence of alternate explanations for the defendant’s behavior does not necessarily defeat the court’s discretion to admit consciousness-of-guilt evidence.
However, when consciousness of guilt is properly admitted at the guilt phase of a death penalty case the jury should not be allowed to consider the evidence in its penalty deliberations “for the reasons it was admitted at the guilt phase.” (5 Cal 4th at 392.) The evidence may be relevant “under [Penal Code] section 190.3, factor (a), to the extent that [it] gives rise to reasonable inferences concerning the circumstances of the crime and defendant’s culpability.” (People v. Riggs (2008) 44 Cal.4th 248, 321–322.) Additionally, consciousness of guilt evidence might be independently admissible as aggravating evidence at the penalty phase. For example, evidence that defendant conspired to commit a forcible escape might have been admissible as evidence of criminal activity involving the threat to use force or violence under Penal Code section 190.3, factor (b).
However, if any of the consciousness of guilt evidence constitutes “aggravating evidence of a type not statutorily authorized” People v. Champion (1995) 9 Cal.4th 879, 947) a counsel may wish to consider requesting a limiting instruction:
“If defendants had requested the trial court to instruct the jury that it could consider this evidence only for the light it shed on defendants’ guilt, such an instruction would perhaps have been appropriate. Defendants, however, did not request such an instruction, and the trial court was not obligated to give such an instruction on its own initiative. [Citations.]” (Ibid.)
