Paysinger

Convicted of second degree robbery and placed on five years’ probation, defendant Tacare Desean Paysinger appeals, arguing (1) the flight instruction the trial court gave (CALCRIM No. 372) was unconstitutional and not supported by substantial evidence; (2) his conviction must be reduced to grand theft because that was all the actual perpetrator (codefendant Pham) was convicted of; and (3) the weapons and gang conditions of his probation are unconstitutionally vague and/or overbroad.

In the published portion of our opinion, we reject defendant’s challenge to the constitutionality of CALCRIM No. 372. In the unpublished portion of our opinion, we agree with some of defendant’s arguments regarding his probation conditions and will modify those conditions accordingly; otherwise, we reject defendant’s arguments and will therefore affirm the judgment as modified.

FACTUAL AND PROCEDURAL BACKGROUND

On a late afternoon in September 2007, Mary Harris was in her car, which was parked near the Gottschalks store at El Camino and Watt Avenues in Sacramento. As she was waiting for a call on her cell phone, she saw two men about 20 feet away “kind of wandering in the general direction…