People v. Caudillo

California Court of Appeal Jan 16, 1980 No. Crim. 4027Published

Before: Brown (g.A.)

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Holding. The trial court did not err in giving the flight instruction, but the abstract of judgment must be corrected to reflect a concurrent sentence because the court failed to issue a formal order for a consecutive sentence within the statutory period.

Issues

Did the trial court err in giving the CALJIC No. 2.52 flight instruction?
May an abstract of judgment impose a consecutive sentence when the court failed to make a formal order for such a sentence during or after the sentencing hearing?

Disposition. Affirmed as modified

Quotations verified verbatim against the opinion

“No error occurred. Further, if error occurred, it was harmless in light of the overwhelming case against appellant.”

“It is well settled that the abstract of judgment is not the judgment of conviction and it cannot add to or modify the judgment which it purports to digest or summarize.”

“the 60-day period having elapsed without the trial court making or recording the determination in the manner required by section 669, the abstract of judgment must be corrected.”

Opinion

BROWN (G. A.), P. J.

Appellant was convicted after jury trial of robbery (Pen. Code, § 211) with the use of a firearm (Pen. Code, § 12022.5). He appeals from the judgment.

On March 3, 1977, at about 7:15 p.m., two men entered Ken’s Cork-N-Bottle liquor store on 11th Street in Hanford. After the men entered the store one of them picked a bag of potato chips from a rack and walked to the counter. Placing the chips and dollar bill on the counter, he opened his trench coat and revealed a gun butt, as he told clerk Jerry Zwickl “This is a holdup. Give us all your money.” The other man, who had never left the cash register area, pointed a gun at Zwickl’s forehead.

Zwickl gave the robbers a paper bag and took all the money out of the register. This activated a camera, which took three photos of the robbers. The trench-coated robber placed the money in the bag. Zwickl was ordered to lie face down on the floor. The two robbers left. From her vantage point inside a car parked directly in front of the store entrance, Kathy Rocha saw the two men inside the store near the counter area. About a minute later she saw the men leave the store, run down the street, and around the corner. Zwickl and Rocha identified appellant at trial as the trench-coated robber, and Zwickl also testified that appellant was depicted in all three photographs taken by the hidden camera.

Caljic No. 2.52

Appellant contends that the trial court prejudicially erred in giving CALJIC No. 2.52, the flight instruction.

He argues that every

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patron of a liquor store eventually leaves it and that the fact he was arrested two weeks after the crime and in another county was no basis for a finding of flight or for an inference of consciousness of guilt.

Appellant’s argument overlooks the testimony of witness Kathy Rocha that appellant and another man exited the liquor store and ran south on 11th Avenue and around the corner. Appellant wore a white trench coat and carried a bag; the other man had a gun. These facts make the instant case virtually identical to

People v. Caudillo

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BROWN (G. A.), P. J.

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