1

Filed 10/29/20 P. v. Rogers CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ERIC OLIVER ROGERS,

Defendant and Appellant.

 A154512

 (Solano County

 Super. Ct. No. FCR 334209)

A jury found defendant Eric Oliver Rogers guilty of one felony count of 

willful infliction of corporal injury to a current or former dating partner and 

two misdemeanor counts of vandalism. He was sentenced to four years in 

state prison. 

Defendant contends (1) the trial court erred in denying his motion to 

sever trial of one of the vandalism charges from the trial of the other two 

charges, (2) the jury improperly heard evidence that defendant had been in 

prison due to the prosecutor’s failure to adequately admonish a witness, 

(3) the trial court erred in failing to instruct the jury on the lesser offense of 

simple assault, and (4) the trial court erred in instructing the jury on flight. 

We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2016 and 2017, Kristy Moore lived in her mother’s house in a room 

that had been the garage. Moore’s two sons also lived in her mother’s house. 
2

Moore and defendant were in an on-and-off dating relationship for two 

years starting in 2014, and Moore described defendant as her “ex-boyfriend.” 

In September 2017, Moore was not dating defendant, but she was still in 

contact with him. 

Ricky Cunningham has known Moore since they were in school, and 

they dated on and off.1 

In December 2017, the Solano County District Attorney charged 

defendant with injuring Moore, a person with whom he had a current or 

former dating relationship (Pen. Code,2 § 273.5, subd. (a); count 1),

misdemeanor vandalism involving damage to Cunningham’s property (§ 594, 

subd (b)(2)(A); count 2), and misdemeanor vandalism involving damage to 

Moore’s property (ibid., count 3). 

A jury trial was conducted in March 2018. The jury found defendant 

guilty of all charges.

3 The following testimony was presented at trial. 

Vandalism in September 2017 (Count 2)

Cunningham testified that around 4:00 a.m. on September 9, 2017, 

Moore called him and wanted him to see if defendant was outside her house.4 

1 Cunningham testified he and Moore had a “solid” relationship for “a 

little bit” and then were on-again, off-again. Moore testified she had dated 

Cunningham on and off throughout her adult life. She described him as 

“kind of a neighbor, and he’s a good friend.” 

2 Further undesignated statutory references are to the Penal Code.

3 The jury also found true the allegation that defendant served a prior 

prison term (§ 667.5, subd. (b)). 

4 In her subsequent testimony, Moore confirmed that she called 

Cunningham to ask if he could check whether defendant was outside her 

home. She testified she was concerned about defendant because “He was 

making a lot of loud banging and threats, and he had broken into [her] room 

earlier that day, the day before.” 
3

At this time, Moore was Cunningham’s friend (not dating partner). He drove 

near Moore’s residence and parked either “two or three houses up” or “at 

least two blocks” from her house. Cunningham could see defendant riding his 

bicycle back and forth around Moore’s house. 

Defendant rode his bike up to Cunningham’s car. Then defendant rode 

away toward Moore’s house. Cunningham started his car and made a U-turn 

to drive home. In his rearview mirror, Cunningham saw defendant “coming 

back to me” and then his passenger’s side back window panel shattered. 

Cunningham looked back to see what happened and did not see anyone next 

to his car or in the area. He reported this incident to the police right after it 

happened. 

Vandalism in November 2017 (Count 3)

Moore’s son Kyle testified he was at home in his grandmother’s house 

on November 17, 2017. His grandmother was home, but Moore was not. 

Around 2:00 or 3:00 in the morning, he saw defendant outside the house. 

Kyle saw defendant walk in the direction of Moore’s room (i.e., toward the 

garage) and a few seconds later, he heard loud banging at the window to 

Moore’s room. Kyle called the police, and when an officer drove up, Kyle 

pointed the officer in the direction he believed defendant had gone. At that

time, the window to Moore’s room was not broken. 

About an hour or two later, Kyle looked out his window and saw 

defendant sitting on the front porch. Kyle opened the door and asked 

defendant what he was doing there. Defendant said he didn’t want the police 

involved, and he wasn’t a bad guy. Kyle shut the door on defendant. Less 

than a minute later, Kyle heard banging on the walls and a window

shattering. Kyle called the police a second time. 
4

In cross-examination, Kyle testified the window shattered around 3:00 

or 4:00 a.m. and he did not see defendant break the window. He was in his 

bedroom and could not see his mother’s room from his bedroom. Kyle also 

admitted he was convicted of first degree residential burglary in 2016 and 

was on probation until 2019. 

Moore testified that when she came home later that day (November 

17), the window to the garage, which was her room, was broken, and all her 

dressers were pushed over. She said, “[E]verything was amiss.” 

Injury to a Current or Former Dating Partner in November 2017 (Count 1)

Moore testified that in the late afternoon or early evening of November 

19, 2017, defendant contacted her. Defendant told Moore he had phones to 

return to her, and she agreed to meet him near his house.5 

Moore drove to defendant’s house at 9:00 p.m. that day. Defendant got 

in the front passenger seat of her car. Defendant wanted Moore to take him 

to a park nearby, and she agreed because he was very persistent. Then she 

drove to the parking lot of a 99 Cents store and parked. Defendant was 

screaming at Moore about her phone. He wanted to see her cell phone and 

see who she was talking to. Moore testified that defendant said to her, 

“You’re fucking somebody but not fucking me.” 

Moore was scared by defendant’s behavior. She let defendant see her 

phone to calm him down. She tried to get out of the car to get a pack of 

cigarettes. Defendant reached over and locked the driver’s door and yelled 

that Moore was not going anywhere. At some point, defendant tried to take 

5 Moore explained that, after a friend left two phones at her house, 

Moore left the phones on the front porch, so the friend could pick them up if 

she wasn’t home. Moore testified that defendant took the phones from her 

porch the night/early morning that her window was broken. 
5

away Moore’s keys, they struggled for the keys, and during the struggle, 

Moore honked her horn a few times. Moore unlocked her door, and then 

defendant punched her in the nose. Blood “gushed” from her nose, and there 

was a gash on the bridge of her nose caused by a ring defendant wore on his 

middle finger. 

Moore got a handkerchief to stop the flow of blood. She testified, 

“[Defendant] was still in the car. And they said that they were going to call 

the cops. A store owner came up from a store down the way and said, ‘Well, 

you better leave.’ And so he took off running, and I got in the car.” 

After defendant punched her, Moore drove home. She went to the 

police about two hours later to report what happened. A Vacaville police 

officer testified he took Moore’s report around 12:40 a.m. on November 20. At 

the time, a laceration on the bridge of Moore’s nose was still “actively 

bleeding,” and one cheek had some redness. 

In response to defense counsel questioning, Moore testified a friend (not 

Cunningham) convinced her to go to the police that day, and Cunningham

drove her to the police station to make the report. 

Moore testified about a prior incident of domestic violence from August

2016, which the court admitted under Evidence Code section 1109. She was 

in a relationship with defendant at the time, and he was in her room early 

that morning. Defendant woke Moore up. He was looking at Moore’s phone 

and accusing her of cheating on him. Defendant was very angry and 

screaming. He called Moore a bitch and said he was going to kill her. Moore 

testified that she denied cheating on him, and then defendant “came at me 

when I was on my bed, and he put his hands on my throat, and he choked me. 

And then he actually lifted me like by my throat, and I almost passed out.” 

Defendant had his hands around Moore’s neck for 30 seconds. Defendant 
6

also hit Moore in the chest. Later that morning, Moore’s mother came to her 

room, Moore told her what happened, and her mother called the police. 

In cross-examination, Moore testified defendant choked her sometime 

between 5:00 and 7:00 a.m. and then defendant went to sleep. She had her 

cell phone with her in the room, but she did not try to call anyone. When she 

reported the incident, Moore did not tell the police that defendant had his 

hands on her neck for 30 seconds because they didn’t ask. Moore testified 

defendant blocked the way to get out of her room, but she did not tell the 

police that defendant restrained her in her room, again because they did not 

ask.

Defense counsel also elicited testimony from Moore about an incident in 

July 2014 during which she lied to a Vacaville police officer. The officer 

asked Moore if she had anything in her mouth, and she said that she did not. 

In fact, Moore had a baggie in her mouth that contained methamphetamine. 

Moore testified the officer choked her and made her spit it out. Moore was 

dating defendant at the time, but when she was arrested, she identified 

Cunningham as her emergency contact. 

In addition, Moore admitted her driver’s license was suspended at the 

time she drove defendant to the 99 Cents store parking lot in November 2017, 

and the prosecution granted her use immunity for her testimony at 

defendant’s trial. 

Defense

The defense called the officer who responded to Moore’s residence in 

August 2016 and took her report (the other act of domestic violence). The 

officer testified he believed Moore told him that defendant did not choke her. 

Moore did not tell the officer she was restrained in her room during the 

incident, and the officer did not observe any bruising on Moore’s neck or 
7

injuries to her chest. When the officer contacted defendant, he was 

cooperative and calm. 

The defense also called the officer who made the traffic stop in July 

2014 and discovered the baggie in Moore’s mouth. He corroborated Moore’s 

testimony that he grabbed her and applied pressure to her neck until she spit 

out a small plastic baggie with a white crystalline substance inside. 

In closing, defense counsel argued Cunningham, Kyle, and Moore were 

unreliable witnesses with a motive to lie, and he suggested the offenses

alleged simply did not happen. He suggested Cunningham influenced Moore 

to make a false report of domestic violence and implied that Cunningham 

viewed defendant as a romantic rival. 

DISCUSSION

A. Failure to Sever Trial of Count 2

1. Background

Defendant filed a motion to sever the trial of the two misdemeanor 

vandalism charges (counts 2 and 3) from the trial of the felony domestic 

violence charge (count 1). He argued severance was appropriate because the 

misdemeanor charges occurred on separate dates from the alleged felony 

offense and because trial of the three charges together would impermissibly 

inflame the jury, prejudice defendant’s right to testify, and allow prejudicial 

evidence that would otherwise be inadmissible if the misdemeanor charges 

were tried separately from the felony charge. 

The trial court denied the motion to sever, reasoning, “[T]here’s no 

really substantial danger of prejudice shown by the defense and this evidence 

is all crossly admissible on the issue of motive under [Evidence Code section] 

1101(b). So that’s the strongest argument in favor of consolidating the 

counts. They all relate to Krist[y] Moore.” 
8

The issue of severance came up again in a later pretrial hearing. 

Defense counsel asked the court to dismiss count 3, the misdemeanor 

vandalism charge for which Kyle was the primary witness, on the ground

that counsel had just learned Kyle was currently on probation for first degree 

burglary and the District Attorney’s office had never disclosed Kyle’s criminal 

history. The court denied the motion, and then defense counsel asked for 

severance of count 3 on the ground it was “a weak count now” “being 

bootstrapped with these other allegations to help support it.” The court 

stated it was denying the motion to sever count 3 for the same reasons it 

denied defendant’s previous severance motion to sever count 1, that is, “This 

evidence is crossly admissible.” 

2. Applicable Law and Standard of Review

Section 954 provides in relevant part, “An accusatory pleading may 

charge two or more different offenses connected together in their commission, 

. . . or two or more different offenses of the same class of crimes or offenses, 

under separate counts . . . . [T]he court in which a case is triable, in the 

interests of justice and for good cause shown, may in its discretion order that 

the different offenses or counts set forth in the accusatory pleading be tried 

separately or divided into two or more groups and each of said groups tried 

separately.” 

“In cases in which two or more different offenses of the same class of 

crimes or offenses have been charged together in the same accusatory 

pleading, . . . evidence concerning one offense or offenses need not be 

admissible as to the other offense or offenses before the jointly charged 

offenses may be tried together before the same trier of fact.” (§ 954.1.) 

“[C]onsolidation or joinder of charged offenses ‘is the course of action 

preferred by the law.’ ” (People v. Soper (2009) 45 Cal.4th 759, 772.) We 
9

review the denial of a motion to sever for abuse of discretion, and the 

appellant “must make a ‘ “clear showing of prejudice” ’ ”; the California 

Supreme Court has “observed that ‘in the context of properly joined offenses, 

“a party seeking severance must make a stronger showing of potential 

prejudice than would be necessary to exclude other-crimes evidence in a 

severed trial.” ’ ” (Id. at p. 774.) 

“In determining whether there was an abuse of discretion, we examine 

the record before the trial court at the time of its ruling. [Citation.] The 

factors to be considered are these: (1) the cross-admissibility of the evidence 

in separate trials; (2) whether some of the charges are likely to unusually 

inflame the jury against the defendant; (3) whether a weak case has been 

joined with a strong case or another weak case so that the total evidence may 

alter the outcome of some or all of the charges; and (4) whether one of the 

charges is a capital offense, or the joinder of the charges converts the matter 

into a capital case.” (People v. Mendoza (2000) 24 Cal.4th 130, 161

(Mendoza), superseded by statute on other grounds as stated in People v. 

Brooks (2017) 3 Cal.5th 1, 63, fn. 8.) 

3. Analysis

On appeal, defendant contends the trial court erred in failing to sever 

trial of count 2, the vandalism charge involving Cunningham, from that of 

counts 1 and 3, offenses that involved Moore.

Initially, we find defendant’s contention forfeited. As we have 

described, defendant moved to sever trial of count 1, the only felony charge, 

from trial of the two misdemeanor vandalism charges, and later he asked the 

court to sever trial of count 3, the vandalism charge for which Kyle was the 

primary witness, from the other charges. At no point, however, did defendant

specifically ask the court to sever the trial of count 2 from the other charges. 
10

We asked the parties for supplemental briefing on forfeiture. 

Defendant argues there was no forfeiture because “it was clear that [he] 

primarily sought to avoid the prejudice that resulted from joinder of the 

felony count and two unrelated misdemeanors” and “because the trial court 

was fully cognizant of its options and its duties with regard to the issue of 

severance, once the issue was brought to its attention.” He cites the rule that 

a trial objection is sufficient if it fairly apprises the trial court of the issue it 

is being called upon to decide, suggesting the trial court in this case was 

sufficiently apprised of the need to sever count 2 from the other charges even 

though defendant did not ask the court to do so. 

The Attorney General responds that a motion to sever trial of count 2 

from the other charges “was simply not presented to the court.” He points 

out that, under defendant’s position, whenever a defendant moves to sever 

one charge from a multiple count information, the trial court would be 

required “to look at every possible combination of charges, and evaluate 

whether they should be severed . . . even if the defense had not asked the 

court to do so.” 

People v. Mitcham (1992) 1 Cal.4th 1027, cited by the Attorney General,

is on point. In Mitcham, the defendant moved to sever his trial from that of 

his codefendant on one ground, then raised different arguments for severance 

on appeal. Our high court found the new arguments forfeited. (Id. at pp. 

1048–1049 [“Defendant did not raise the arguments he now makes, nor does 

he presently claim that the trial court abused its discretion in rejecting his 

prior arguments. For this reason alone, we are required to reject defendant’s 

challenge to the trial court’s ruling”].) Defendant’s appellate contention is 

forfeited. 
11

Furthermore, on the merits, defendant’s claim fails for failure to show 

it would be an abuse of discretion to decline to sever trial of count 2 from the 

trial of the other charges. 

Defendant recognizes that counts 2 and 3, both misdemeanor 

vandalism charges, are “of the same class of crimes.” Thus, it is not disputed 

that they meet the statutory requirements for joinder under section 954. 

Nonetheless, defendant argues joinder of counts 2 and 3 should not be 

permitted “unless cross admissibility is established,” citing Williams v. 

Superior Court (1984) 36 Cal.3d 441, superseded by statute as stated in

Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, footnote 19 (Alcala). 

But the law is to the contrary: “ ‘a trial court may not grant severance, where 

the statutory requirements for joinder are met, solely on the ground that 

evidence in the joined cases is not cross-admissible.’ ” (Alcala at p. 1217, fn. 

10.)6 

In any event, the trial court in this case found evidence the three 

charges were cross admissible on the issue of motive because the conduct all 

related to Moore. We cannot say this was an abuse of discretion. (See People 

v. Thompson (2016) 1 Cal.5th 1043, 1114 [standard of review for a trial 

court’s ruling on admission of evidence under Evidence Code section 1101 is 

abuse of discretion].) Evidence of defendant’s former relationship with Moore 

and his domestic violence and vandalism offenses against her (i.e., evidence 

6 Section 954.1 provides that “evidence concerning one offense or 

offenses need not be admissible as to the other offense or offenses before the 

jointly charged offenses may be tried together before the same trier of fact.” 

(Italics added.) Voters enacted section 954.1 in 1990 (after Williams v. 

Superior Court, supra, was decided), and since then, “much of the crossadmissibility analysis in Williams carries diminished persuasiveness.” 

(People v. Ybarra (2016) 245 Cal.App.4th 1420, 1435, fn. 9.) 
12

of counts 1 and 3) would be relevant in demonstrating a motive for defendant 

to vandalize the car of Cunningham, defendant’s perceived rival, at a time 

when defendant was outside Moore’s house, and Cunningham was nearby. 

And, as argued by the Attorney General, evidence of the relationships among 

defendant, Moore, and Cunningham was relevant to Cunningham’s 

identification of defendant as the one who broke his window. 

Moreover, it was within the trial court’s discretion to find the three 

charges “connected together in their commission” under section 954. 

Offenses meet that definition when “ ‘ “there is a common element of 

substantial importance in their commission, for the joinder prevents 

repetition of evidence and saves time and expense to the state as well as to 

the defendant.” ’ ” (Alcala, supra, 43 Cal.4th at p. 1218, italics omitted.) This 

requirement is satisfied even when the offenses do not relate to the same 

transaction and are committed at different times. (Ibid.) That the offenses 

in this case all occurred in or near Moore’s house and involved either Moore 

or a former dating partner of Moore are sufficient facts to find the three 

charges connected together in their commission under section 954. 

Defendant asserts joinder of count 2 with the other charges was

prejudicial because “the primary impact of evidence of the Cunningham 

incident was to show . . . [defendant] to be an impulsive, hostile and violent 

person.” This argument appears to correspond with the factor “whether some 

of the charges are likely to unusually inflame the jury against the defendant.” 

(Mendoza, supra, 24 Cal.4th at p. 161.) It would have been well within the 

trial court’s discretion, however, to determine that count 2 was not unusually 

inflammatory. 

Defendant also claims joinder combined “two weak cases that . . . 

unfairly and unreasonably booster each other.” Our high court has 
13

explained, “the issue is ‘ “ ‘whether strong evidence of a lesser but 

inflammatory crime might be used to bolster a weak prosecution case’ on 

another crime.” ’ ” (People v. Simon (2016) 1 Cal.5th 98, 124.) Here, the 

vandalism charge involving Cunningham was not particularly inflammatory, 

and the evidence of the more serious crime, felony corporal injury to a current 

or former dating partner, was not comparatively weak. The trial court would 

not have abused its discretion in declining to sever trial of count 2 on this 

ground had it been asked to do so.

Finally, we reject defendant’s cursory claim that the trial court’s failure 

to sever trial of count 2 from trial of the other charges caused such 

“overwhelming prejudice” that it denied him due process and a fair trial. We 

discern no overwhelming prejudice from the joinder of count 2 with counts 1 

and 3. 

B. Admission of Evidence That Defendant Had Been in Prison

1. Background

As to count 1 (corporal injury to a current or former dating partner), 

the district attorney alleged defendant suffered a prior conviction on 

February 23, 2015, for which he served a prison term. (Former § 667.5, subd.

(b), as amended by Stats. 2014, ch. 442, § 10.) Defendant filed a motion to 

bifurcate the trial on the prison prior allegation, which the court granted. 

In a pretrial discussion, defense counsel also moved to exclude any 

evidence of defendant having been in custody, noting that in discovery 

materials, there were references to witnesses saying defendant “just got out 

of jail.” The court ruled that the prosecution would be precluded from asking 

questions designed to elicit that as a response. But the court told defense 

counsel, “If you ask a question on cross that would—that Ms. Moore would 
14

have to lie about in order to comply with the Court’s in limine ruling, I’m not 

going to require that she do so.” 

Following the court’s ruling, the prosecutor stated, “When I grab the 

witnesses, as I get them, I’ll advise them don’t volunteer anything . . . that 

the defendant just got out of jail.” 

When Moore was called as a witness, she did not mention anything 

about defendant being in custody in the prosecutor’s initial questioning. She 

testified that she dated defendant “[o]n and off since 2014.” In crossexamination, defense counsel asked about specific times Moore and 

defendant broke up and got back together. In response to his question about 

when they next broke up after getting back together in August 2014, Moore 

testified, “He was—then he went to prison from August until January 2016.” 

“So it’s August of ‘14 to January 2016.”

Defense counsel objected, moved to strike, and stated he had a motion 

to make. The court addressed the jury: “[F]olks, in terms of the witness’s 

answer about the defendant going to prison, I am going to admonish you not 

to consider that for any purpose other than as part of her explanation as to 

why they broke up and got back together. It is not admissible for the truth of 

the prison commitment. Don’t speculate about the nature of the prison 

commitment. Don’t use it in any way, shape, or form in your evaluation of 

the case except as to explain the reason for the witness giving for why they

broke up when they did.”

The court then had an off-the-record discussion with counsel, during 

which defense counsel apparently made a motion for mistrial. 

Later the same day, the court addressed defendant’s motion for 

mistrial. The court asked the prosecutor whether Moore had been 

admonished not to refer to defendant’s prior prison commitments. The 
15

prosecutor responded that he told Moore, “we are not going to discuss any 

prior incidents,” and he specifically remembered admonishing Cunningham 

“because I know that was part of the issue [defense counsel] was bringing to 

the Court’s attention.” The prosecutor, however, doubted that he gave the 

same instruction to Moore, explaining that in his review of the discovery, only 

Cunningham had referred to defendant just getting out of jail. The court 

observed, “So there could have been a failure to thoroughly admonish each 

witness.” 

In support of his mistrial motion, defense counsel argued Moore’s 

reference to defendant’s time in prison was “a devastating revelation” and the 

prosecution’s failure to admonish their witnesses had deprived defendant of a 

fair trial. The prosecutor disagreed, arguing the court’s “immediate curative 

and limiting instruction” remedied the situation. 

The trial court denied the motion for mistrial, finding “given everything 

else that is in evidence, this is . . . not incurably prejudicial like the defense 

fears. There were no specifics. The jury has no idea why the prison 

commitment happened. And I have faith that they will follow my 

admonishments.”

The court also granted defendant’s motion to strike Moore’s reference to 

prison, so if the jury asked for a read back it would not be in the record. The 

court stated its intention to instruct the jury that it struck Moore’s response 

“and repeat the admonishment that they are not to consider the testimony for 

any purpose.” Defense counsel, however, did not want the court to further 

admonish the jury regarding Moore’s response. 

2. Analysis

Defendant argues Moore’s reference to defendant being in prison was 

“extraordinarily prejudicial,” warranting reversal. The Attorney General 
16

responds that the trial court acted within its discretion in finding Moore’s 

testimony not incurably prejudicial.7 

“Whether in a given case the erroneous admission of . . . evidence [of a 

defendant’s prior criminality] warrants granting a mistrial or whether the 

error can be cured by striking the testimony and admonishing the jury rests 

in the sound discretion of the trial court.” (People v. Harris (1994) 22 

Cal.App.4th 1575, 1581.) “ ‘Whether a particular incident is incurably 

prejudicial is by its nature a speculative matter, and the trial court is vested 

with considerable discretion in ruling on mistrial motions.’ [Citation.]

Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse 

of discretion.” (People v. Avila (2006) 38 Cal.4th 491, 573 (Avila).) 

“Ordinarily, a curative instruction to disregard improper testimony is 

sufficient to protect a defendant from the injury of such testimony, and, 

ordinarily, we presume a jury is capable of following such an instruction.” 

(People v. Navarrete (2010) 181 Cal.App.4th 828, 834 (Navarrete).) For 

example, in People v. Valdez (2004) 32 Cal.4th 73, 124 (Valdez), a witness 

was instructed not to refer to the defendant being in custody, but the witness 

nonetheless testified that he interviewed the defendant at “Chino Institute.” 

Our high court observed that the isolated reference to state prison “was not 

so grave that a curative instruction would not have mitigated any possible 

prejudice to defendant.” (Id. at p. 125.) In Avila, supra, 38 Cal.4th at page

572, a witness was admonished not to refer to the criminal convictions of the 

7 In his reply, defendant argues the standard of review put forth by the 

Attorney General is incorrect and this court should determine “de novo” 

whether the error was prejudicial. To the extent defendant is suggesting we 

should apply some more favorable standard of review under which the 

judgment might be reversed even if the trial court properly denied his motion 

for mistrial, he offers no authority for this suggestion, and we reject it. 
17

defendants, but the witness testified that a codefendant said defendant Avila 

“ ‘barely got out of prison.’ ” Avila moved for a mistrial based on the reference 

to his having been in prison. (Ibid.) The trial court denied the motion, 

finding “that striking the statement and admonishing the jury not to consider 

it in any way would remedy the problem,” and our high court found no abuse 

of discretion. (Id. at pp. 572, 574.) 

On the other hand, the Court of Appeal in Navarrete, supra, 181 

Cal.App.4th at page 834 found the trial court abused its discretion in denying 

a motion for mistrial. There, after the defendant successfully moved to 

suppress a statement he made to detectives, a detective referred to the 

suppressed statement in his testimony. The trial court struck his testimony 

but denied the defendant’s mistrial motion. (Id. at p. 831.) The detective’s 

testimony was not mere inadvertence; while waiting to testify, the detective 

complained about the suppression order and “promised he ‘was going to show’ 

the court.” (Id. at p. 832.) The detective’s improper testimony left the 

impression the defendant had confessed, and under the circumstances, the 

appellate court concluded the trial court’s curative instruction could not undo 

the damage inflicted by the rogue witness. (Id. at p. 834.) The court’s 

conclusion was grounded in the particular persuasive force of a confession 

noting, “ ‘If the jury believes that a defendant has admitted the crime, it 

doubtless will be tempted to rest its decision on that evidence alone, without 

careful consideration of the other evidence in the case.’ ” (Id. at p. 835.) 

The present case is more akin to Valdez and Avila than to Navarrete.

8 

Moore’s inadmissible testimony that defendant spent some time in prison 

8 Defendant argues that Valdez is distinguishable because the 

defendant in that case forfeited his claim. This does not help defendant 

because the Supreme Court’s conclusion in Valdez that an admonition would 
18

was not incurably damaging in the same way evidence of a confession would 

be. Rather, this was an “[o]rdinar[]y” situation where “a curative instruction 

to disregard improper testimony is sufficient to protect a defendant from the 

injury of such testimony.” (Navarrete, supra, 181 Cal.App.4th at p. 834.) 

Accordingly, we conclude the trial court did not abuse its discretion in 

denying defendant’s mistrial motion. 

C. Failure to Instruct on Simple Battery

In a discussion on jury instructions, the trial court stated it would 

instruct on the lesser offense of battery against a current or former dating 

partner (§ 243, subd. (e)(1)), but it did not see either simple battery (§§ 242, 

243, subd. (a)) or simple assault (§§ 240, 241, subd. (a)) “warranted by these 

facts.” Defense counsel suggested that an instruction on simple battery could 

be warranted if the jurors “don’t believe Ms. Moore that they were in a 

relationship.” The court was unconvinced observing, “there’s really not 

evidence before the . . . jury that there wasn’t a dating relationship.”

Defendant claims the trial court erred in not instructing the jury on 

simple battery under section 242. He asserts, “Even though there was 

evidence that [defendant] and Moore had a dating relationship, whether to 

find that fact beyond a reasonable doubt was a question for the jury,” and

“While there was evidence [they] had dated several years before, since that 

time she had dated other men including Mr. Cunningham. The jury could 

have concluded that the current relationship was such that the crime was not 

one of domestic violence.”

9 

have cured any harm from the improper testimony was a necessary 

determination to its finding of forfeiture. 

9 For purposes of both the charged offense of corporal injury to a person 

with whom the defendant has a current or former dating relationship and the 

lesser offense the jury was instructed on, battery against a person with whom 
19

Defendant argues he was prejudiced by the failure to give an 

instruction on simply battery because “the evidence reasonably suggested the 

possibility that [he] had committed the lesser offense.” 

A trial court “must instruct the jury on lesser included offenses of the 

charged crime if substantial evidence supports the conclusion that the 

defendant committed the lesser included offense and not the greater offense.” 

(People v. Gonzalez (2018) 5 Cal.5th 186, 196.) “[T]he existence of ‘any

evidence, no matter how weak’ will not justify instructions on a lesser 

included offense, but such instructions are required whenever evidence that 

the defendant is guilty only of the lesser offense is ‘substantial enough to 

merit consideration’ by the jury.” (People v. Breverman (1998) 19 Cal.4th 

142, 162.) 

Here, we do not believe there was substantial evidence to support 

determinations that defendant committed a battery against Moore but that

he and Moore were never in a dating relationship; and in any event, 

defendant’s claim fails for lack of prejudice. The jury heard from Moore that 

defendant was her ex-boyfriend and that they had been in a dating 

relationship for two years. She testified specifically about an incident in 

August 2016 when defendant was with her in her bedroom early in the

morning (further evidence that they were in a dating relationship). Our 

review of defense counsel’s cross-examination of Moore does not reveal any 

attempt to cast doubt on the existence of the dating relationship between 

Moore and defendant. In closing, defense counsel argued Moore had falsely 

the defendant currently or previously had a dating relationship, a “dating 

relationship” is defined as “frequent, intimate associations primarily 

characterized by the expectation of affectional or sexual involvement 

independent of financial considerations.” (§§ 243, subd. (f)(10), 273.5, subd. 

(b)(3).) 
20

accused defendant in the past and “embellished” the prior act of domestic 

violence from August 2016, but he did not suggest Moore was lying about 

ever having been in a dating relationship with defendant in the first place. 

Rather, defense counsel suggested Moore made up the current allegation that 

defendant punched her in the nose at the urging of Cunningham. In short, 

the defense called into question Moore’s testimony that defendant punched 

her in the nose but did not challenge her testimony that she and defendant 

had been in a dating relationship. 

Defendant’s claim also fails for lack of prejudice. The jury was 

instructed on the lesser included offense of battery of a current or former 

dating partner (§ 243, subd. (e)) but found defendant guilty of the charged 

offense of corporal injury to a current or former dating partner (id., § 273.5). 

That means the jury found beyond a reasonable doubt that defendant 

“willfully inflict[ed] corporal injury resulting in a traumatic condition” upon 

Moore. (Id., subd. (a).) Had the jury also been instructed on simple battery, 

it is not reasonably likely the jury would have determined that defendant 

punched Moore in the nose causing traumatic injury based on Moore’s

testimony but then rejected her testimony that she and defendant had been 

in a dating relationship. Thus, we conclude any error in failing to instruct 

the jury on simple battery in this case was harmless. (See People v. 

Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct on a lesser 

included offense is not reversible error “unless an examination of the entire 

record establishes a reasonable probability that the error affected the 

outcome”].) 

D. Instruction on Flight (CALCRIM No. 372)

The prosecutor requested CALCRIM No. 372 based on “Moore’s 

testimony on direct examination about how the defendant fled after striking 
21

her.” Defense counsel objected arguing there was insufficient evidence 

defendant fled. The court granted the prosecutor’s request finding evidence 

defendant fled after the domestic violence offense was committed.

Defendant contends the trial court erred in giving the flight instruction 

because the only evidence of flight was Moore’s uncorroborated testimony. 

We find no error.

“In any criminal trial or proceeding where evidence of flight of a 

defendant is relied upon as tending to show guilt, the court shall instruct the 

jury substantially as follows: [¶] The flight of a person immediately after the 

commission of a crime, or after he is accused of a crime that has been 

committed, is not sufficient in itself to establish his guilt, but is a fact which, 

if proved, the jury may consider in deciding his guilt or innocence. The 

weight to which such circumstance is entitled is a matter for the jury to 

determine. [¶] No further instruction on the subject of flight need be given.” 

(§ 1127c.)10

“A flight instruction is proper whenever evidence of the circumstances 

of defendant’s departure from the crime scene . . . logically permits an 

inference that his movement was motivated by guilty knowledge.” (People v. 

Turner (1990) 50 Cal.3d 668, 694.) Here, Moore testified a store owner came 

up to her while her nose was bleeding and said “you better leave”; Moore also

mentioned, “they were going to call the cops.” She testified defendant then

“took off running” even though he had arrived at the 99 Cents store parking 

10 The jury in this case was given a version of CALCRIM No 372 as 

follows: “If the defendant fled immediately after the crime was committed, 

that conduct may show that he was aware of his guilt. If you conclude that 

the defendant fled, it is up to you to decide the meaning and importance of 

that conduct. However, evidence that the defendant fled cannot prove guilt 

by itself.” 
22

lot in Moore’s car. This was sufficient evidence to permit an inference that 

defendant was motivated by guilty knowledge when he took off running from

the parking lot. 

Defendant concedes that “fleeing under such circumstances [i.e., the 

circumstances described by Moore] certainly would have warranted the flight 

instruction.” But he notes that the prosecutor did not call the store employee 

or owner to testify and asserts, “Moore’s uncorroborated testimony that 

[defendant] fled the scene did not establish the factual basis for the jury to 

have considered those acts as indicative of a consciousness of guilt.” He cites 

no authority for this assertion, however, and the law is to the contrary. 

“Except where additional evidence is required by statute, the direct evidence 

of one witness who is entitled to full credit is sufficient for proof of any fact.” 

(Evid. Code, § 411.) 

For his position, defendant cites People v. Rhodes (1989) 209 

Cal.App.3d 1471. In Rhodes, this court observed, “a flight instruction is 

appropriate where there is substantial evidence of flight by the defendant 

apart from his identification as the perpetrator, from which the jury could 

reasonably infer a consciousness of guilt. [Citations.] Thus, for example, 

where there is independent evidence of flight as to which defendant’s identity 

as the fleer is not in dispute, [a flight instruction] is proper.” (Id. at p. 1476.) 

The court made this observation in the context of examining People v. Anjell

(1979) 100 Cal.App.3d 189 (Anjell), disapproved of by People v. Mason (1991) 

52 Cal.3d 909, 943, fn. 13.) In Anjell, the court reasoned, “The fact that a 

robber fled the scene is of no assistance to a jury where the defendant does 

not dispute that all elements of the crime were present but denies that he 

was the robber.” (100 Cal.App.3d at pp. 199–200.) The Rhodes court 

explained, “This is so because where the defendant contests his identity as 
23

the perpetrator, testimony that the perpetrator (whoever he was) fled the

scene upon committing the crime does not, in any logical way, further connect 

the defendant with the commission of the crime.” (209 Cal.App.3d at p. 1476, 

some italics added.) 

On the other hand, our Supreme Court has recognized, “If there is 

evidence identifying the person who fled as the defendant, and if such 

evidence ‘is relied upon as tending to show guilt,’ then it is proper to instruct 

on flight.” (People v. Mason, supra, 52 Cal.3d at p. 943, italics added.) The

flight instruction was proper in this case because Moore identified defendant 

as the person who fled after punching her. 

Defendant argues his defense that no crime occurred at all is analogous 

to the defense in Anjell that the defendant was not the robber. But under the 

reasoning of Anjell and Rhodes, Moore’s testimony identifying defendant as 

both the perpetrator and the fleer is relevant to connect defendant to the 

commission of the crime. Indeed, we have seen that defendant agrees that a 

flight instruction would have been proper if another eyewitness (e.g. a

shopkeeper) identified him as the person who fled the scene. Instead, 

defendant urges that Moore’s testimony on flight must be discounted 

apparently because she was the sole witness to testify about the crime itself. 

Defendant offers no authority for his position, and we reject it.

DISPOSITION

The judgment is affirmed. 
24

_________________________

Miller, J.

WE CONCUR:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A154512, People v. Rogers