People v. Araujo CA5

Filed 8/1/23 P. v. Araujo 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F084348 Plaintiff and Respondent, (Super. Ct. No. 2060585) v.

DAVID ANGEL ARAUJO, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Stanislaus County. Kellee C. Westbrook, Judge. Aaron Spolin for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Russ K. Naughton, Deputy Attorneys General, for Defendant and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Meehan, J. and DeSantos, J.

Following a jury trial, defendant David Angel Araujo was convicted of five offenses arising from two incidents of domestic violence. On appeal, defendant’s sole argument is that the wording of the flight instruction given to the jury conflicts with Penal Code section 1127c1 and is unconstitutionally argumentative. We reject this argument, following the many courts to have rejected similar arguments in the past, and we therefore affirm the judgment. BACKGROUND The Stanislaus County District Attorney charged defendant with two counts of battery of a person in a dating relationship (§ 273.5, subd. (a); counts 1 & 3), assault with a deadly weapon (§ 245, subd. (a)(1); count 2), assault likely to produce great bodily injury (§ 245, subd. (a)(4); count 4), threatening to commit a serious crime (§ 422, subd. (a); count 5), and false imprisonment (§ 236; count 6). For each of counts 3 through 5, the district attorney also alleged an enhancement for personal use of a deadly weapon (§ 12022, subd. (b)(1)). These charges stemmed from two instances of domestic violence in 2016. Because our resolution of the lone legal issue on appeal does not depend on the state of the evidence, we omit description of most of the underlying facts. It is sufficient to note the trial evidence that, after the second incident, defendant drove away from the house where the attack occurred. This evidence appears to be the basis for the People’s request that the trial court give the pattern CALCRIM No. 372 jury instruction on “flight” as showing consciousness of guilt. During a conference off the record, defendant objected to this instruction, although the precise wording of the objection is unavailable because the conference was not transcribed. However, once back on the record, the court explained the conversation with counsel and its ruling on the instruction as follows: