P. v. Brock
Filed 12/19/13 P.
v. Brock CA4/2
>NOT TO BE PUBLISHED IN
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
>IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA>
>FOURTH APPELLATE DISTRICT
Plaintiff and Respondent,
Defendant and Appellant.
APPEAL from the href="http://www.fearnotlaw.com/">Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Thomas K. Macomber,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, href="http://www.mcmillanlaw.us/">Attorney General, Dane R. Gillette, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Marissa Bejarano, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury convicted
defendant and appellant Brandon Anthony Brock of robbery (count 1 â€“ Pen. Code,
§ 211)href="#_ftn1" name="_ftnref1"
title=""> and found true an allegation
he personally used a firearm (§ 12022.53, subd. (b)). Defendant thereafter admitted suffering a
prior prison sentence (§ 667.5, subd. (b)). The court sentenced defendant to an
aggregate, determinate term of imprisonment of five years four months. On appeal, defendant contends the court
prejudicially erred in neglecting to give the standard href="http://www.fearnotlaw.com/">jury instruction, CALCRIM No. 332,
on expert witness testimony. We affirm.
On December 14, 2007, at approximately 5:10 p.m., the victim was
working on mailboxes in his workshop adjacent to his mobilehome. The victim had the solid wooden door to the
shed open, but the screen door closed.
He heard someone outside, so he went out to see if he could help the
individual. Defendant said he was
looking for Bill; the victim responded â€œâ€˜Iâ€™m Bill. What can I do for you?â€™â€; defendant said he
was told to come there, that â€œBill was the one with . . . all the shitâ€; the
victim told him he â€œmust have the wrong Bill.â€
The victim turned around and reentered his workroom. He then heard the wooden door close
behind him. The victim turned around to
see defendant standing with a sawed-off shotgun pointed at him. Defendant said â€œâ€˜This is a robbery.â€™â€ The victim replied â€œâ€˜Iâ€™m sorry. I donâ€™t have any money.â€™â€ Defendant asked â€œâ€˜Whatâ€™s in your . . .
The victim said â€œâ€˜Iâ€™ve got my wallet.â€™â€ He took his wallet out, walked over, and
handed it to defendant. Defendant then
asked what else the victim had in his pockets.
The victim responded he had a cigarette lighter and his car keys;
defendant told the victim to give them to him.
The victim went to hand defendant the items, but dropped them.
Defendant reached out in an unsuccessful attempt to catch them and
looked down at the lighter and keys; the victim attempted to knock the barrel
of the shotgun away, grabbed defendant toward him, and head butted him. The victim fell backward with defendant on
top of him. They began struggling for
possession of the shotgun; however, defendant had a sling on the shotgun around
his neck, so the victim could not get it away from defendant.
Defendant punched the victim on the side of the victimâ€™s face. The victim put his thumb inside the trigger
guard and squeezed it; the shotgun went off.
The shotgun fired a second time during the continued struggle. The victim kicked defendant in the groin area
forcing defendant off him. Defendant
took off running outside the door of the workroom with the victimâ€™s wallet and
keys. Two spent 12-gauge shotgun casings
were later found inside the workroom.
The victim called to his girlfriend inside the mobilehome to call the
police, which she did. He saw defendant
enter the passenger side of a dark-colored vehicle, which drove off. The victim described defendant to police as
white, 5â€™6â€ to 5â€™7â€, 160 to 180 pounds, 22 to 24 years old, and wearing an
eye patch over his right eye.
The victimâ€™s girlfriend testified that on the same date and time she
heard arguing and then â€œa great big boom.â€
She heard a second â€œbig boomâ€ shortly after. She then saw a figure in black go by, get in
the passenger side of a car backed into their driveway, and leave. She described the individual to police as
Hispanic, 5â€™5â€ or 5â€™6â€, 175 pounds, and between 24 and 25 years old.href="#_ftn2" name="_ftnref2" title="">
31, 2008, the victim identified defendant
from a photographic lineup. On November 1, 2010, the victim identified defendant in court as his assailant at the
preliminary hearing. The victim also
identified defendant at trial.
officer David Janusz testified he was on patrol on December 23, 2007, at around 1:22
a.m. when a vehicle without lights caught
his attention. He attempted to conduct a
traffic stop, but the car ignored his emergency lights and sirens and led him
on a high speed pursuit. The pursuit
ended when the vehicle crashed through three chain-link fences and the occupant
fled on foot. Janusz pursued the suspect
on foot until he apprehended him; the suspect was defendant.
As defendant fled, he discarded 12-gauge shotgun shells from his
pockets. Janusz handcuffed defendant and
put him in the rear seat of his patrol vehicle.
He then backtracked along the route of the foot pursuit and found three
12-gauge shotgun rounds. In defendantâ€™s
vehicle, he found a Mossberg 12-gauge pump-action shotgun loaded with five,
double-ought buck shells sitting on the driverâ€™s seat.href="#_ftn3" name="_ftnref3" title=""> Defendant was 24 years old
at the time, 5â€™8â€, 160 pounds, white, and had a href="http://www.sandiegohealthdirectory.com/">blind or deformed right eye.
Janusz additionally testified â€œ[t]hrough my training and experience,
I know that once a weapon is used, itâ€™s usually â€“ â€“ either the subject either
tries to sell it and/or give it to somebody else to hold it for them away from
their residence.â€ â€œThe term we usually
use is once the gun is hot, which means whoever is in possession of it has used
it in a crime and they believe that it could link them to a crime, they will
usually either try to sell that weapon or give it to somebody they trust to
store it for them.â€
Defendant contends the court
prejudicially erred in neglecting to give, sua sponte, the jury instruction on
how to evaluate expert witness testimony.
Particularly, defendant argues Januszâ€™s testimony that a criminal rids
himself of a weapon used in a crime may have prejudicially compelled the jurors
to view Januszâ€™s testimony that defendant was arrested with another gun as evidence
corroborating the victimâ€™s identification of defendant as the perpetrator. Although the court erred in failing to
instruct the jury with CALCRIM No. 332, we hold defendant suffered no
â€œThe instruction called for by Penal Code section 1127b
must be given sua sponte where expert testimony has been received. [Citations.]â€
(People v. Reeder (1976) 65
Cal.App.3d 235, 241.) â€œHowever, the
erroneous failure to instruct on the weight of href="http://www.mcmillanlaw.us/">expert testimony is not prejudicial
unless the reviewing court, upon an examination of the entire cause, determines
that the jury might have rendered a different verdict had the omitted
instruction been given. [Citation.]â€ (Ibid.)
Here, defendant suffered no prejudice from the
courtâ€™s failure to instruct the jury with CALCRIM No. 332, because the
victimâ€™s testimony overwhelmingly supported the identification of defendant as
the perpetrator of the robbery. The
victim testified he had four big spotlights turned on in his workroom: â€œ[I]t was very well-lit in the work room [>sic].â€
The victim and defendant were face-to-face for approximately five
minutes: â€œIt seemed like an eternity . .
. .â€ The victimâ€™s description of
defendant to the police matched defendant.
identified defendant on three separate occasions: in a six-pack photographic lineup on January 31, 2008, at the preliminary hearing on November 1, 2010,
and at trial. The victim testified he
was 100 percent sure defendant was the perpetrator, he never had any doubt
it was defendant, and the trauma of the incident made him â€œsee that face every
now and then at night.â€ â€œWell, the
memory of that face in my memory, Iâ€™ll never forget it. Itâ€™s one of those things that I was so scared
at the time that Iâ€™d never forget his face.â€
Finally, the court instructed the jurors with both
CALCRIM Nos. 105 and 226 regarding their responsibility and the manner in which
to evaluate the credibility of witnesses.
Thus, in no way was the jury left with the impression they had to accept
the opinions of an expert witness as true.
v. Dewitt (1950) 98 Cal.App.2d 709, 718 [Instruction given on evaluating
the credibility of witnesses relevant when determining whether court
prejudicially erred in failing to instruct on expert witness testimony.]; >People v. Lynch (1971) 14 Cal.App.3d
602, 609-610 [same].) Therefore, it was
not reasonably probable defendant would have obtained a more favorable outcome
had the court instructed the jury with CALCRIM No. 332.
The judgment is
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
name="_ftn1" title="">  All further statutory references are to the Penal
Code unless otherwise indicated.
name="_ftn2" title="">  The victimâ€™s girlfriend told police she only
believed the perpetrator was a man by the way he walked, she did not get a good
look at him, only saw a portion of his face in the darkness, and defendant
appeared to be hiding his face from her.