People v. Alfaro CA5

California Court of Appeal Jun 16, 2016 No. F070937Unpublished

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Holding. The court held that even if the trial court erred by providing a flight instruction (CALCRIM No. 372) without sufficient evidentiary support, the error was harmless because it did not prejudice the defendant.

Issues

Whether the trial court erred in instructing the jury with CALCRIM No. 372 regarding flight.
Whether any error in giving the flight instruction resulted in prejudice to the defendant.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We need not decide whether the trial court erred, however, because even if we assume error occurred Alfaro cannot establish any prejudice as a result of the instruction.”

“Given the weak evidence of flight, the jury could well have found the instruction inapplicable to the facts of the case.”

“The prosecutor did not argue Alfaro’s flight was evidence of guilt, nor did he make direct reference to the flight instruction.”

Filed 6/16/16 P. v. Alfaro CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F070937 Plaintiff and Respondent, (Super. Ct. No. F14907676) v.

ARMANDO ALEXANDER ALFARO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Gary D. Hoff, Judge. Maureen M. Bodo, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Detjen, J.

Armando Alfaro was found guilty of two felonies, attempting to dissuade a witness from testifying, and possession of a firearm by a person previously convicted of a felony as a result of a domestic dispute with Barbara R. The trial court declared a mistrial on two other counts after the jury could not reach a verdict. Alfaro argues the trial court prejudicially erred when it instructed the jury with CALCRIM No. 372, the flight instruction, because it was not supported by the evidence in the case. We conclude that even if error occurred, Alfaro was not prejudiced thereby. Accordingly, we affirm the judgment. FACTUAL AND PROCEDURAL SUMMARY Pleadings The information charged Alfaro with assault with a firearm (Pen. Code, § 245, subd. (a)(2))1 (count 1), dissuading a witness by force or threat (§ 136.1, subd. (c)(1)) (count 2), possession of a firearm by a felon (§ 29800, subd. (a)(1)) (count 3), and misdemeanor battery (§ 243, subd. (e)(1)) (count 4). Counts 1 and 2 alleged as an enhancement that Alfaro personally used a firearm within the meaning of section 12022.5, subdivision (a). Finally, the information alleged Alfaro had incurred a prior conviction that constituted both a serious felony within the meaning of section 667, subdivision (a)(1), and a strike within the meaning of section 667, subdivisions (b)-(i). Testimony The victim, Barbara, testified that on the day in question she was living with Alfaro. She had gone to seek employment that afternoon. When she returned to her apartment the door was locked. Alfaro let her into the apartment. Barbara became angry because Alfaro had a woman in the apartment, and Alfaro was mad because Barbara was late getting home. There was yelling between the two, but Alfaro did not touch her.

People v. Alfaro CA5

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