Filed 10/24/23 P. v. Hunter CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

NORVEL HUNTER,

Defendant and Appellant.

 D081000

 (Super. Ct. No. SCS313955)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy R. Walsh, Judge. Affirmed.

Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, 

for Defendant and Appellant. 

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, 

Collette C. Cavalier and Joy Utomi, Deputy Attorneys General, for Plaintiff 

and Respondent. 

Norvel Hunter appeals his conviction for willful failure to appear in 

court while on bail under Penal Code section 1320.5 on two grounds. 
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First, he challenges the sufficiency of the evidence that his absence 

from court was both willful and intended to evade the court process. But the 

parties’ stipulation that Hunter missed court “after being ordered to appear” 

and returned only once “brought into custody by means of a bench warrant” 

allowed the jury to reasonably infer that Hunter purposefully failed to appear 

with the requisite mental state. 

Second, Hunter contends that the trial court gave “conflicting” 

instructions about the mental-state elements of the crime. The trial court 

improperly omitted failure to appear from the list of specific-intent crimes, 

but that error was harmless because the specific instructions on the elements 

of failure to appear informed the jury of the required mental state.

We therefore affirm the judgment. 

I.

In addition to other felony charges, the People charged Hunter with

willful failure to appear at his original trial date to evade the process of court

while on bail. (Pen. Code, § 1320.5.) 

At trial, the parties stipulated to two facts related to this charge. First, 

in April 2022, Hunter, “while released on bail, failed to appear at his jury 

trial date after being ordered to appear by the court.” Second, Hunter “did 

not return to the court for a period of longer than 14 days and was eventually 

brought into custody by means of a bench warrant.” The jury was told that 

these stipulated facts were “deemed to have been conclusively proven.” The 

parties presented no other evidence related to this charge. 

When giving jury instructions, each time the trial court addressed 

mental state or intent generally, it also directed the jury to the specific 

instructions for each crime. In giving CALCRIM No. 225, the trial court 

instructed that “[t]he People must prove not only that [Hunter] did the acts 
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charged, but also that he acted with a particular intent and/or mental state. 

The instruction[ ] for each crime explains the intent and/or mental state 

required.” Turning to types of intent, in CALCRIM No. 252, the trial court 

advised that “the crimes and allegations charged in this case require proof of 

the union or joint operation of act and wrongful intent.” It identified two 

charges as specific-intent crimes and “[a]ll the other crimes”—including 

failure to appear—as “requir[ing] a general criminal intent.” For those 

general-intent crimes, the jury was told that “[t]he act required is explained 

in the instruction for that crime.” 

The trial court outlined the specific elements required to find Hunter 

guilty of failure to appear—including the requisite mental state—in 

CALCRIM No. 3001. Relevant here, the trial court instructed that the People 

must prove that Hunter: (1) “willfully failed to appear in court as required”

and (2) “did so in order to evade the process of the court.” It explained that 

“[s]omeone commits an act willfully when he or she does it willingly or on 

purpose.” If the jury found that Hunter “willfully failed to appear within 14 

days of the date assigned for appearance,” the jury could, but was not 

required to, “infer that the failure to appear was for the purpose of evading 

the process of the court.” (See Pen. Code, § 1320.5.) 

During closing arguments, both parties emphasized that “willfully,” as 

applied to Hunter willfully failing to appear at his original trial date, meant 

“on purpose.” When discussing purpose to evade, the prosecutor told the jury 

that, under the “14-day rule,” “if someone misses court for over 14 days[,] you 

may conclude that they did so in order to evade court.” 

The jury found Hunter guilty of failure to appear in violation of Penal 

Code section 1320.5. 
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II.

Hunter raises two issues on appeal. First, he argues the parties’ 

stipulation was insufficient to establish that Hunter failed to appear at his 

original trial date (1) willfully and (2) for the purpose of evading the process 

of court. Second, Hunter contends the trial court gave conflicting instructions 

on the mental state required for failure to appear that “prejudicially confused 

at least one juror.” For the reasons discussed below, we disagree on both 

points. 

A.

When assessing the sufficiency of the evidence, we review the entire 

record in the light most favorable to the judgment to decide if substantial 

evidence—reasonable, credible evidence of solid value, even if 

circumstantial—would allow a rational factfinder to find the defendant guilty 

beyond a reasonable doubt. (People v. Stanley (1995) 10 Cal.4th 764, 792.) 

During our review, we “must accept logical inferences that the jury might 

have drawn from the circumstantial evidence.” (People v. Maury (2003) 

30 Cal.4th 342, 396.) 

Here, the only facts the jury received as to failure to appear came from 

the parties’ stipulation. The record establishes that Hunter missed his jury 

trial date “after being ordered to appear.” Hunter asserts that “the mere fact 

an order was issued is not circumstantial evidence [he] knew of that order.” 

To try to create that specter of doubt, however, he relies on evidence not 

presented to the jury about Hunter’s absence from the hearing when the trial 

date was set. That argument does not persuade us for two reasons. First, it 

relies on evidence outside the trial record. Second, it makes no difference 

because Hunter’s counsel, who appeared on his behalf at the trial-setting 

hearing, “had an ethical duty to inform his client of all material proceedings 
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in the case,” including the trial date. (People v. Jimenez (1995) 

38 Cal.App.4th 795, 802-803.) Thus, the jury could reasonably conclude from 

the stipulation that Hunter knew that he was supposed to appear for trial. 

Next, although the stipulation did not directly address willfulness, it 

contained facts from which the jury could reasonably infer that Hunter both 

willfully failed to appear and did so to evade the court process. Significantly, 

Hunter did not return to court until taken “into custody by means of a bench 

warrant.” The involuntary nature of Hunter’s return—via arrest—is 

substantial circumstantial evidence that he purposefully chose not to attend 

his trial date with the goal of evading the court process. The jury could draw 

this conclusion even without considering the length of Hunter’s absence, and 

we “presume[ ] in support of the judgment the existence of every fact the trier 

could reasonably deduce from the evidence.” (People v. Kraft (2000) 

23 Cal.4th 978, 1053.) Thus, while Hunter is correct that he did not need to 

affirmatively present evidence to explain his absence, the record supports the 

jury’s conviction on this charge. 

B.

Next, Hunter contends that the trial court prejudicially erred when it 

instructed the jury that failure to appear is a general-intent crime in 

CALCRIM No. 252. 

1.

The People argue that Hunter forfeited this claim because he did not 

object to the instruction during trial. In support, they rely on cases where the 

instruction correctly stated the law. But Hunter contends that CALCRIM 

No. 252’s instruction that failure to appear is a general-intent crime was an 

incorrect statement of law. We agree with Hunter, and thus conclude that 
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this issue is preserved for appeal even absent an objection at trial. (People v. 

Mason (2013) 218 Cal.App.4th 818, 823 (Mason).) 

2.

We independently review claims of instructional error. (People v. 

Mitchell (2019) 7 Cal.5th 561, 579.) We look at the instructions and trial 

record as a whole and consider the challenged instruction in that context. 

(People v. Mills (2012) 55 Cal.4th 663, 680 (Mills).) Where reasonably 

possible, we interpret the instructions to support the judgment. (Mason, 

supra, 218 Cal.App.4th at p. 825.) 

Failure to appear is a specific-intent crime. (People v. Wesley (1988) 

198 Cal.App.3d 519, 522.) The individual must (1) intend to fail to appear 

(2) for the purpose of evading the process of court. (Ibid.; Pen. Code, 

§ 1320.5.) When instructing the jury on CALCRIM No. 252 here, however, 

the trial court did not identify failure to appear as a specific-intent crime. 

Instead, it grouped that charge with “[a]ll the other crimes and allegations” 

that “require a general criminal intent.” 

The People concede error but argue that it was harmless because the 

trial court later instructed the jury on the specific intent required for failure 

to appear. 

We conclude that the general-intent instruction in CALCRIM No. 252, 

though erroneous to the extent it included failure to appear, was not “burdenreducing” as Hunter claims. We find the rationale in People v. Lyons (1991) 

235 Cal.App.3d 1456 (Lyons) persuasive. There, the effect of the generalintent instruction “turn[ed] upon the substantive elements of the offense to 

which it [wa]s applied.” (Id. at p. 1462.) Because the instruction on the 

elements of the crime “conveyed the correct intention” required, the 
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“erroneous instruction on general intent could not have deflected the jury 

from” the proper mental state. (Id. at pp. 1462-1463.) 

So too here. CALCRIM No. 252 relies on the crime-specific instructions 

to explain the “act required.” Similarly, CALCRIM No. 225, also given here,

reminds the jury that the “instruction for each crime explains the intent

and/or mental state required.” And the controlling crime-specific instruction, 

CALCRIM No. 3001, made clear that the jury had to find that Hunter failed 

to appear (1) willfully and (2) to evade the court process to convict. As “jury 

instructions of a specific nature control over instructions containing general 

provisions,” the instructions here held the People to their burden of proving 

the necessary specific intent. (People v. Stewart (1983) 145 Cal.App.3d 967, 

975.) Hunter tries to distinguish Lyons on its purportedly stronger evidence 

of specific intent. But in so doing, he brushes aside without addressing the 

relevant holding—that the instruction on general intent “was error but 

patently harmless” because it required the jury to find the mental state set 

forth in the crime-specific instruction. (Lyons, supra, 235 Cal.App.3d at 

p. 1463.) 

At most, the erroneous inclusion of failure to appear in the 

general-intent instruction created ambiguity. “[N]ot every ambiguity, 

inconsistency, or deficiency in a jury instruction rises to the level of a due 

process violation.” (Mills, supra, 55 Cal.4th at p. 677.) We consider if there is 

a “reasonable likelihood” that the jury misunderstood or misapplied the 

instruction. (People v. Smithey (1999) 20 Cal.4th 936, 963.) Here, it is 

unlikely that the jury misunderstood the required intent because the trial 

court correctly explained the intent elements in the crime-specific instruction. 

Moreover, the prosecutor did not “downplay[ ] its burden of proof in 

closing argument.” When discussing the inference of evasion the jury may 
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draw from a 14-day willful failure to appear (Pen. Code, § 1320.5), the 

prosecutor discussed “someone miss[ing] court” or “not show[ing] up to court”

without specifying willfulness. That omission, however, did not direct the 

jury to presume “willful intent.” Before discussing the 14-day rule, the 

prosecutor repeatedly reminded the jury, consistent with CALCRIM 

No. 3001, that “willfully” in “willfully failed to appear in court . . . means on 

purpose.” After, the prosecutor argued that Hunter getting “picked up on a 

bench warrant” showed “he did this to willfully evade the court process.” 

Taken together, we conclude that the instructions and argument did not 

lower the burden of proof. As a result, they did not violate due process. 

Because the instructions did not violate due process, we assess 

prejudice under the Watson standard. (People v. Beltran (2013) 56 Cal.4th 

935, 955.) For the reasons discussed above about the sufficiency of the 

evidence, it is not reasonably probable that Hunter would have obtained a 

more favorable result had the trial court identified failure to appear as a 

specific-intent crime in CALCRIM No. 252. 

III.

We affirm the judgment. 

CASTILLO, J.

WE CONCUR:

KELETY, Acting P. J.

RUBIN, J.