Filed 6/19/14 P. v. Fletcher CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE STATE OF CALIFORNIA

THE PEOPLE, Plaintiff and Respondent,

v. ANTHONY WAYNE FLETCHER, Defendant and Appellant. D063230

(Super. Ct. No. RIF154250)

APPEAL from a judgment of the Superior Court of Riverside County, Bernard J. Schwartz, Judge. Affirmed. Law Offices of Russell S. Babcock and Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistan t Attorney General, Scott C. Taylor and Charles C. Ragland, Deputy Attorneys Ge neral, for Plaintiff and Respondent.2 I. INTRODUCTION Defendant Anthony Wayne Fletcher appe als from a judgment of conviction for three counts of lewd acts on a child aged 14 or 15 and 10 years younger than Fletcher, and three counts of annoying or molesti ng a child under age 18. The victim was Fletcher's daughter, whom he touched on a number of occasi ons when he thought she was sleeping. On appeal, Fletcher contends that the tria l court erred in instru cting the jury with an instruction on flight. According to Fletcher, ther e was no evidence from which a rational juror could reasonably infer that Fletch er left Riverside County in order to elude arrest or observation, and that the flight instru ction therefore should not have been given. We conclude that the trial court did not err in instructing the jury on flight, and that even if the court erred in giving the instructi on, Fletcher cannot demonstrate that the instruction prejudiced him. We ther efore affirm Fletcher's convictions.
II. FACTUAL AND PROCEDUR AL BACKGROUND
A. Factual background Until her freshman year of high school, Jane Doe 1 lived with her mother and father in Riverside County. She considered her family to be "the basic American dream-

1 In the trial transcript, Fletcher's daughter is referred to as "Jane Doe."3 type family." When Doe wa s 15 and her body started ma turing, Fletcher, her father, began molesting her. According to Doe, Fletcher would ente r her bedroom early in the morning, pull down the covers, reach under her clothing and fondle her breasts and, sometimes, her buttocks. Doe would pretend to be asleep while this was happening. In response to Fletcher's conduct, Doe began we aring a sports bra to bed. She thought that because the sports bra was tight, it might prevent Fletch er from "going skin-to-skin," but Fletcher continued to fondle her breast s by lifting up the sports bra. Doe assumed that Fletcher did not realize that she was aware of what he was doing to her because she pretended to be asleep. Doe did not tell anyone about the molesta tion because she did not want to break up her family. She "chose to act like everything was okay" so that she would not disrupt the family. Doe estimated th at Fletcher molested her between 40 and 100 times over a period of a year and a half. Doe first disclosed the fact that Fletcher was molesting her to her best friend, T.D., on October 12, 2009. T.D. also disclosed a personal secret to Doe that day. Doe told T.D. not to tell anyone abou t the molestation because at that time Doe still wanted to protect her family. The night after Doe disclosed her secret to T.D., Doe's mother listened to a voicemail message on Fletcher's work cell pho ne. The message had been left by a woman who referred to Fletcher as her boy friend in the message. At the time Doe's4 mother listened to the voicemail, Fletcher wa s out of town for work training. Doe's mother called Fletcher's father, who was also the family's church pastor, and asked him to come over to listen to the voic email message. Fletcher's fath er came over to the family's house that night. After he listened to the voicemail message, he and Doe's mother called Fletcher. When Doe's mother spoke with Fletch er that night, Fletcher became upset with her for telling his father abou t the voicemail message. Fletcher ended the conversation by telling Doe's mother that wh en he returned from his trai ning, "it would be [Doe] and [her], and he was gone." While Fletcher's father was at the fam ily's house that night, Doe overheard her mother telling Fletcher's fath er about the voicemail and her belief that Fletcher "was cheating again." Doe became ups et, began "freaking out," a nd thought that her parents might get divorced. Doe called T.D., who atte mpted to calm Doe down by telling her to wait to talk with her moth er about the situation. When Doe's mother spoke with Doe, she told her that she planned to stay with Fletcher so that Doe would have "a father figure around still." Doe decided to tell her mother about the molestation. She told her mother that Fl etcher had been coming into her bedroom and touchi ng her breasts while he thought sh e was asleep. At trial, Doe explained that she decided to reveal the molestation to her mother because she had realized that "this family that I was trying to protect wasn't really what I thought it was." Upon learning about the molestation, Doe' s mother called Flet cher's father, who had already left the house. She related to Fletcher's father what Doe had told her.5 Fletcher's father called Fletcher, but did not mention what Doe had revealed. Instead, he told Fletcher that his wife "was very upset ab out some issues," and that it would be better if Fletcher came to his father 's house and stayed th ere upon his return on October 16. On the morning of October 14, Doe's mo ther called a lawyer to begin divorce proceedings and to obtain a rest raining order against Fletcher. Doe's mother did not think that calling the police was an option because Fletcher was a police officer. That night, Doe's mother told Flet cher's father that she had cont acted an attorney, was seeking a divorce, and had obtained a restraining order. Fletcher returned from his trip on Octobe r 16, arriving at his father's house around 9:30 or 10:00 p.m. Fletcher's father asked him if he had been involved "with touching" Doe. Fletcher denied having touched Doe "in any way." Flet cher's father told him that "there was supposed to be somebody here at the house to give you a restraining order." Fletcher was upset. He said, "I need to get out of here. I need to go." At 10:35 p.m. that night, Fletcher left the following voicemail message for his supervisor, Sergeant Russell Shube rt, at the Riverside Police Department: "Russ, this is [Fletcher]. It's 10:30 at nigh t, on uh, Friday night. I know this is late notice, and I do apologize. Effective immediately, I no longer work for the Riverside Police Department. I resignate [ sic ] immediately. I turn in my resignation. I don't have time for it to be two weeks. I wish I could give you more details , but unfortunately, I'm in a little bit over my head right now. Nothing criminal, but I'm having some family problems and I need to6 leave for a while. Um, I will call you back next week and let you know what's going on. I deeply—I thank you very much for all that you've done fo r me, and please pass that on to Cliff and John, and um, you guys have been most wonderful, and I just thank you for that. Uh, I will talk to you after awhile. Bye." Sergeant Shubert received a second voicemail message from Fletcher the following morning. In the se cond message, Fletcher aske d Shubert to disregard his message from the previous night, but also sa id that he was "leaving the area." After listening to that message at around 8:30 a. m., Shubert called Flet cher's cell phone. Fletcher answered. Shubert testified that it sounded like Fletcher was driving. Fletcher told Shubert that he was in northern California, in or near Tulare County. Fletcher said that "there had been some issues at his hous e involving his wife and his daughter and that he was leaving and he was goi ng up to Reno, Nevada." Shub ert inquired about what was going on, and Fletcher replied that "it was just problems with his fa mily, and he needed to leave." It "sounded" to Sergeant Shubert as if Fletcher "was going to be gone an extended period of time, and he wasn't coming back." Shubert talked with Fletcher, and Fletcher eventually agreed to come back to Corona. Fletch er returned to his father's home at around 3:00 or 4:00 p.m. that day. On October 19, Fletcher was served with a temporary restraining order. Instead of opening it, Fletcher handed it to a police serg eant and turned in his badge and firearm. In February 2010, Fletcher was speaki ng with three Riverside police officers and the topic of the case against him came up. Du ring that conversation, Fletcher said that7 "maybe [Doe] had misconstrued something." The only thing he could think of was "that when he would work late at night, he woul d come home and check on her by placing his hand on her chest to see if she was breathing." Dete ctive Roberta Hopewell, who participated in that conversation, had been unaware of the details of the allegations against Fletcher, but his comme nt about checking on his da ughter "kind of struck [her] strangely." During that conve rsation, Fletcher also menti oned that "he thought he would be going to prison, but it wa s God's will, and he could mi nister to the prisoners." Fletcher admitted in a prior proceeding that Doe and T.D. were honest, and that he was not. In that proceeding, he denied ha ving made the statement to Detective Hopewell about checking on his daugh ter's breathing by putting his hand on her chest.
B. Procedural background In October 2010, a jury found Fletcher guilty of molesting Doe. The trial court sentenced Fletcher to five y ears of formal probation, with the condition that he serve 365 days in county jail. A year later, this cour t reversed the judgment against Fletcher on the ground that the trial court had e rred in admitting certain evidence. Fletcher was retried, and in November 2012, a second jury found Fletcher guilty of committing three counts of lewd acts on a child aged 14 or 15 and 10 years younger than Fletcher (Pen. Code, § 288, subd. (c)(1)), and three counts of an noying or molesting a child under age 18 (Pen. Co de, § 647.6, subd. (a)). The trial court again sentenced Fletcher to five years of formal probation w ith the condition that he serve 365 days in8 county jail. The trial court gave Fletcher credit for time served and for time spent on probation. Fletcher filed a timely notice of appeal.
III. DISCUSSION
A. The trial court properly inst ructed the jury with respect to flight because there was sufficient evidence from which a juror could reasonably infer that Fletcher left to avoid arrest or observation. Fletcher contends that the trial court e rred in giving the jury an instruction on flight, arguing that the evidence did no t support giving the instruction.
1. Additional background The People requested that the trial court instruct the jury w ith CALCRIM No. 372, the standard jury instruction regarding a defe ndant's flight. Defense counsel objected to the court giving a flight instruction, argui ng, "I don't think the evidence has shown sufficiency [ sic ] to show flight, that he's actually fleeing, and I'll submit on that." In response, the trial court said, "I think there is sufficient evidence in that clearly after the allegations are told to him by his father. There is conduct which appears to be—his driving, whether it be to Tulare, or his intent to go to Reno, or wherever, but, nonetheless, there was a driving away and also a phone ca ll of resignation indicating—at least at that point the intent not to return. [¶] The instruction talks abou t fled or tried to flee, so I think it does go to consciousness of guilt." The trial court instructed the ju ry regarding flight as follows:9 "If the defendant fled or tried to flee immediately after the crime was committed, or after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to fl ee cannot prove guilt by itself." The trial court also instruct ed the jury as follows: "Som e of these instructions may not apply depending on your findings about the facts in the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are in this case, follow the instructions that do apply to the facts as you find them."
2. Legal standards The trial court has a statutory obligation to instruct the jury on flight whenever the prosecution relies on evidence of f light as tending to show guilt: "In any criminal trial or proceedi ng where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury subs tantially as follows: "The flight of a pers on 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 gu ilt, but is a fact which, if proved, the jury may consider in deciding hi s guilt or innocen ce. The weight to which such circumstance is enti tled is a matter fo r the jury to determine. "No further instruction on the subject of flight need be given." (Pen. Code, § 1127c; People v. Mendoza (2000) 24 Cal.4th 130, 179.) The trial court properly gives a flight instruction " 'whenever evidence of the circumstances of [a] defenda nt's departure from the crime scene or his unusual10 environs . . . logically perm its an inference that his m ovement was motivated by guilty knowledge.' [Citation.]" ( People v. Lucas (1995) 12 Cal.4th 415, 470.) The "instruction is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt." ( People v. Howard (2008) 42 Cal.4th 1000, 1002.) "In this context, flight 'requires neither the physical act of running nor the reaching of a faraway haven' but it does require 'a purpose to avoid be ing observed or arrested.' [Citations.] 'Mere return to fa miliar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.' [Citations.]" ( People v. Jurado (2006) 38 Cal.4th 72, 126, italics omitted.) We review de novo the propriety of the giving of a jury instruction. ( People v. Posey (2004) 32 Cal.4th 193, 218.) Furthe r, we apply the harmless error standard provided in People v. Watson (1956) 46 Cal.2d 818, 836, in reviewing an error in giving the flight instruction. ( People v. Silva (1988) 45 Cal. 3d 604, 628.)
3. Analysis

a. There was no error After reviewing the evidence, we conclude that the trial court properly instructed the jury with the instruction on flight. The jury co uld have reasonabl y concluded that Fletcher immediately fled the county to avoid arrest or observation upon being made aware of the accusation against him. Specifically , when Fletcher's fath er told him that his daughter had said that Fletcher had touched he r inappropriately, Fletcher stated, "I need11 to get out of here. I need to go." A few minutes later, Flet cher called his supervisor and indicated that he was resigning from his positi on "immediately" and that he had to leave. Fletcher then got into his vehicle and began driving north. By the following morning, he was already approximately 200 miles away fr om his home. When he spoke with his supervisor that morning, he said that he was headed even fart her away. Although Fletcher decided to return home after additi onal discussion with his supervisor, the fact that Fletcher immediately left the county upon he aring what his daughter had said is sufficient evidence from which a jury could infer that Fletcher's flight reflected a consciousness of guilt. On appeal, Fletcher argues that "the on ly reasonable inferenc e [from the evidence] is that appellant drove to Tulare, California, to visit his mother." Although Fletcher did refer to the fact that his mo ther lived in Tulare County du ring his conversation with his father, this does not mean th at the only reasonable inferen ce from Fletcher's conduct is that he was heading to Tulare County to visit hi s mother. Fletcher did not tell anyone where he was going, and the following morni ng when he spoke with his supervisor, he indicated that he might be headed to Re no, Nevada. Although the jury could have concluded that Fletcher was going to Tulare County to visit hi s mother, there were enough other circumstances abou t his leaving Riverside County , including the fact that he left in the middle of the night almost immediately after discovering that his daughter had accused him of molesting her, and that he a ttempted to resign from his job, from which the jury could have conclude d that he was fleeing to avoid arrest or observation.12 b. Even if it were error to instru ct on flight, Fletcher cannot demonstrate prejudice Although we do not believe that the tr ial court erred in giving the flight instruction, even if the trial court had e rred because there was in sufficient evidence to support the inference that Flet cher fled his immediate envir ons and that this reflected consciousness of guilt, Fletcher could not demonstrate that gi ving the instruction prejudiced him. Instructing the jury on flight , even if erroneous, may be "clearly harmless" because "the instruction [does] not assume that f light was established, leaving the factual determination and its signifi cance to the jury." ( People v. Visciotti (1992) 2 Cal.4th 1, 61.) The very terms of the inst ruction informed the jury that it first had to decide whether it believed that the defendant actually fled. Only if the jury were to make that preliminary finding would it proceed to decide the significance of that conduct. Further, the instruction benefits a defendant by cauti oning the jury that flight, alone, cannot prove guilt. " 'The cautionary nature of the instru ctions benefits the de fense, admonishing the jury to circumspection regardin g evidence that might otherwis e be considered decisively inculpatory.' [Citation.]" ( People v. Boyette (2002) 29 Cal.4th 382, 438-439.) Given the permissive nature of the instruction and its ca utionary nature, which benefits a defendant, even if giving of the instruction had been e rroneous, Fletcher coul d not demonstrate that it is reasonably probable that he would have obtained a more favorable verdict if the trial court had not given the instruction.13 IV. DISPOSITION The judgment of the trial court is affirmed.

AARON, J. WE CONCUR:

McCONNELL, P. J.

NARES, J.