People v. Tolano CA2/5

I. INTRODUCTION

A jury convicted defendant and appellant Anthony Tolano of first degree murder (Pen. Code, § 187, subd. (a)1) and possession of a firearm by a felon (§ 29800, subd. (a)(1)); it found true the allegation that defendant personally and intentionally discharged a firearm causing great bodily injury and death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 50 years to life in state prison. On appeal, defendant challenges as unconstitutional three CALCRIM jury instructions that address post-offense conduct that might show an awareness of guilt. We affirm.

II. BACKGROUND

A. Prosecution Evidence

A house on 56th Street in Maywood was a hangout for Maywood Locos gang members. Defendant and Elias Jimenez were members of the Maywood Locos gang. On the morning of June 14, 2017, Jimenez and his girlfriend went to the 56th Street house. They were “between homes,” and the house’s owner gave Jimenez and his girlfriend permission to stay there for awhile. When they arrived, defendant was on the porch and followed them into the house where he spoke with Jimenez. Later, defendant spoke with Jimenez in the backyard, asking him about his expensive Jordan…