People v. Kessler

California Court of Appeal Jan 15, 1968 No. Crim. 5984Published

Before: Molinari

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Holding. The court held that it was not error to instruct the jury on flight where the evidence allowed for a reasonable inference that the defendant was attempting to flee the scene, and that even if the instruction were improper, it did not constitute prejudicial error.

Issues

Whether the evidence was sufficient to warrant a jury instruction on flight.
Whether the giving of a flight instruction, if improper, constitutes prejudicial error per se.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is established in this state, for the purpose of drawing the inference of consciousness of guilt, the jury may consider not only acts of successful flight but also acts constituting attempted flight.”

“When there is no evidence in a case that the defendant attempted to flee from arrest or trial, it is error to instruct on flight.”

“the giving of an instruction on flight where it is not proper to do so does not constitute prejudicial error per se”

MOLINARI, J.

On this appeal by defendant from a judgment of conviction of assault with a deadly weapon (Pen. Code, § 245), the sole contention is that the evidence did not warrant the giving of an instruction on flight.

The pertinent facts follow.

At about 1 a.m. Karen May Lasseter who had had several drinks at several bars, was walking to her home after leaving the Pix Patio Bar in Concord. The driver of a black Ford yelled something unintelligible at her. She thought he was trying to pick her up and continued walking. The automobile passed her, pulled into a parking lot, then emerged with its lights off. Shortly thereafter a man later identified as defendant came up behind Mrs. Lasseter, stuck a tire iron into her side and said, “Come with me.” Mrs. Lasseter whirled around, grabbed the tire iron with one hand and defendant’s collar with the other hand, and told a passerby, Jesus Verdugo, to call the police.

Verdugo testified that when he first saw defendant and Mrs. Lasseter they were struggling. She was shaking defendant by the collar, and he had a tire iron held behind his back and appeared to be trying to get away from her. Mrs. Lasseter said, ‘ This son-of-a-bitch tried to attack me, ’ ’ and defendant said, “She's crazy. Get this broad off of me.” Mrs. Lasseter repeatedly asked Verdugo to call the police while defendant denied that he had attacked her.

Verdugo asked defendant what he was doing and defendant replied that he had stopped to fix a flat tire. Mrs. Lasseter said this was a lie and that defendant had gotten out of his car, pointed a tire iron at her and said, ‘ Come with me, Babe, or else.” Verdugo inspected defendant’s car and saw it had no fiat tires. He reported this to defendant who then said he had been trying to replace a hub cap that fell off. Verdugo saw a hub cap was missing from defendant’s car but did not see one lying nearby.

[814]

Meanwhile two hoys drove up in a car. Mrs. Lasseter released defendant, who walked over to the car and talked to one of them; then, according to Mrs. Lasseter, defendant started back towards his own ear and she grabbed him again. She again yelled, 1 ‘ Call the police ’ ’ and defendant said “O.lc., call the police; as a matter of fact I'll call them,” whereupon she said “You’re not going anywhere, you son-of-a-biteh,” and grabbed him again. At about this time the police arrived.

People v. Kessler

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MOLINARI, J.

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