Unreported / Non-Citable
Background
In April 2024, California Highway Patrol Sergeant Peter Kim observed William Russell Fulgenzi, Jr. driving 40 miles per hour in a 65 mile-per-hour zone on Interstate 5 at 4:50 a.m. After Fulgenzi pulled over, Kim approached and suspected impairment based on Fulgenzi's erratic behavior, though he detected no odor of alcohol. When Kim asked Fulgenzi to turn off his vehicle, Fulgenzi instead drove off, leading officers on a high-speed chase reaching 100 miles per hour before stopping in an alleyway. Fulgenzi refused to exit the vehicle and had to be extricated by officers.
Fulgenzi was charged with felony evading while driving recklessly and misdemeanor resisting and obstructing an officer, with an allegation that he had suffered a prior strike conviction. A jury found him guilty of both counts, and the trial court found the strike allegation true. The court struck the prior conviction and placed Fulgenzi on two years of formal probation. Fulgenzi appealed, challenging the trial court's modified flight instruction and the calculation of his custody credits.
The Court’s Holding
The Court of Appeal agreed that the trial court erred by instructing the jury with a modified version of CALCRIM No. 372. The standard instruction, which implements Penal Code section 1127c, requires that flight have occurred 'immediately after the crime was committed' or after the defendant 'was accused of committing the crime.' The modified instruction given to the jury omitted this temporal condition, stating only that if Fulgenzi fled, that conduct 'may show that he was aware of his guilt.' The court reviewed this instructional error de novo and found it violated section 1127c's requirements.
Despite finding error, the court concluded it was harmless under either the Watson or Chapman standard of prejudice. The instruction left it to the jury to determine whether Fulgenzi had in fact fled and did not interfere with other instructions on reasonable doubt or the elements of the offense. The prosecutor did not reference the flight instruction in closing argument, and the jury was also instructed with CALCRIM No. 200 that some instructions may not apply depending on the facts. Most significantly, the evidence of guilt was overwhelming, consisting of testimony from two officers and video evidence of Fulgenzi's actions.
Regarding Fulgenzi's second contention about custody credits, the court granted the Attorney General's unopposed request for judicial notice of a January 30, 2026 minute order showing the trial court had subsequently calculated 20 actual credits and 20 conduct credits for a total of 40 days. Fulgenzi agreed in his reply brief that this rendered the credits contention moot, and the court concurred. The judgment was affirmed.
Key Takeaways
- A trial court errs when it modifies CALCRIM No. 372 to omit the temporal requirement that flight occur immediately after the crime or after accusation, as this violates Penal Code section 1127c.
- Even when a flight instruction is erroneous, reversal is not required if the error is harmless under either the Watson or Chapman standard, particularly where the evidence of guilt is overwhelming.
- Challenges to flight instructions under section 1127c are cognizable on appeal even without a contemporaneous objection in the trial court.
- A custody credits issue becomes moot when the trial court subsequently calculates the credits, as demonstrated by a minute order subject to judicial notice.
- Juries are presumed to follow instructions such as CALCRIM No. 200, which tells them to disregard instructions that do not apply to the facts as they find them.
Why It Matters
This decision reinforces that while trial courts must adhere to the precise language of standard jury instructions, not every instructional error warrants reversal. The court's analysis demonstrates how harmless error review applies even when the instruction at issue omits a statutorily required element, so long as the jury was properly instructed on the burden of proof and the elements of the offense, and the evidence of guilt is overwhelming.
The case also illustrates the practical reality that some instructional errors may be irrelevant to the charged offenses, as the prosecutor here did not even reference the flight instruction in closing argument. Additionally, the decision shows how custody credits disputes can be resolved through subsequent trial court action, rendering appellate challenges moot.