Filed 3/28/14 P. v. Hancock CA1/1
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A138292
v.
JOHN LOREN HANCOCK,                                                  (Contra Costa County
                                                                     Super. Ct. No. 5-1202902-2)
         Defendant and Appellant.


                                                   INTRODUCTION
         John Loren Hancock was charged with numerous offenses, including dissuading a
witness from testifying under Penal Code1 section 136.1, subdivision (a). The jury was
instructed regarding dissuading a witness from reporting a crime under section 136.1,
subdivision (b), and found defendant guilty of that crime. He maintains the trial court
erred in instructing the jury on subdivision (b), and no substantial evidence supports his
conviction. We affirm.
                                         PROCEDURAL BACKGROUND
         The Contra Costa District Attorney charged defendant with attempted murder
(§§ 187, subd. (a), 664, subd. (a)) assault with a deadly weapon (§ 245, subd. (a)(1)),
making criminal threats (§ 422) and dissuading a witness from testifying (§ 136.1, subd.
(a)(1)). A deadly or dangerous weapon use enhancement was alleged as to the attempted
murder and criminal threat charges, and a great bodily injury enhancement as to the


         1
             All further statutory references are to the Penal Code.


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attempted murder and assault with a deadly weapon charges (§ 12022.7, subd. (a)).
Additionally, the amended information alleged the assault with a deadly weapon charge
was a serious felony (§§ 969f, 1192.7, subd. (c)) and further alleged a prior strike
(§§ 667, 1170.12), a prior felony conviction (§ 667, subd. (a)(1)) and that defendant was
ineligible for probation (§ 1203, subd. (e)(4)).
       The jury could not reach a verdict on the attempted murder charge, but found
defendant guilty of the remaining charges. The court found true the prior strike
conviction and the prior serious felony enhancement allegations, and sentenced defendant
to a total of 17 years four months in state prison.
                                 FACTUAL BACKGROUND
       We set forth only those facts necessary for a discussion of the issues on appeal.
Defendant shared an apartment with Norman Anderson. On the night of the incident,
Anderson had been drinking and was in his room. Defendant entered Anderson’s room
and said he was missing some DVDs. Anderson told him the DVDs in his room were all
his, but if it was “that important to him, that he could take all the DVDs.” Defendant
“was getting worked up,” but he left the room.
       Anderson turned out the light, closed his door and went to sleep. Around 4:30
a.m., he was awakened by the phone ringing. About that time, his “door flew open,” and
he felt something hitting his head. Anderson realized defendant “wasn’t just punching”
him. He asked, “ ‘what are you hitting me with? What’s wrong? ’ ” Defendant
responded “ ‘A hammer.’ ” Defendant said “it was bullshit” that Anderson had “stolen”
his DVDs, and he was going to kill him.
       At some point, defendant “ran out of energy” and stopped hitting Anderson.
Anderson was bleeding “a lot” and went into his room because defendant told him to.
Defendant “came into the room and said he would call emergency if [Anderson] would
go along with the story that [he] fell down the stairs.” Defendant cleaned up as much of
the blood as he could. He “made sure that [Anderson] understood what the stipulations
were that, for him to call emergency, which was, to tell emergency that [he] had fallen



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down the stairs. [He] was drunk, and [he] had fallen down the stairs and hit [his] head.”
Anderson complied because he was afraid for his life.
          A firefighter arrived at the house, and noticed blood on the floor in two of the
rooms in the apartment. Anderson was taken to the hospital, where he told the doctor he
fell down the stairs. Anderson was bleeding externally, had multiple wounds to his head,
bruising below his right eye, and a CT scan showed bleeding between his brain and skull.
          After the doctor explained it was important to Anderson’s treatment that he know
what happened to him, Anderson said he had been assaulted while in bed. He told the
doctor he was concerned about reporting the incident because “ he has to continue living
there.’ ” Anderson also told a police officer at the hospital his roommate hit him on the
head with a hammer. He did not want to give the roommate’s name because he was
afraid.
                                          DISCUSSION
          Defendant frames the issues as ones of instructional error and substantial evidence.
He claims the court erred in instructing the jury on dissuading a witness from reporting a
crime (§ 136.1, subd. (b)) because he was charged with dissuading a witness from
testifying (§ 136.1, subd. (a)). He also asserts no substantial evidence supported his
conviction of the charged crime of dissuading a witness from testifying.
          “Notice to an accused of the charges against him is required by due process, . . .
‘in order that he may have a reasonable opportunity to prepare and present his defense
and not be taken by surprise by evidence offered at his trial.’ [Citation.] The general
rule, however, is that a claim of unfair surprise at trial may not be raised for the first time
after verdict: ‘. . . where a situation arises which might constitute legal surprise, counsel
cannot speculate on a favorable verdict. He must act at the earliest possible moment for
the “right to a new trial on the ground of surprise is waived if, when the surprise is
discovered, it is not made known to the court, and no motion is made for a mistrial or
continuance of the cause.” [Citations.]’ [Citation.] We have indicated that this rule
applies generally in criminal cases. [Citation.] [¶] In accordance with these principles, it
has been uniformly held that where an information is amended at trial to charge an


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additional offense, and the defendant neither objects nor moves for a continuance, an
objection based on lack of notice may not be raised on appeal. [Citations.] There is no
difference in principle between adding a new offense at trial by amending the information
and adding the same charge by verdict forms and jury instructions. . . . The risk of unfair
surprise to the defendant is the same in either case, as is the potential benefit to the
defendant of affording the jury a wider range of verdict options. To prevent speculation
on a favorable verdict, a reasonable and fair rule in both situations is that a failure to
promptly object will be regarded as a consent to the new charge and a waiver of any
objection based on lack of notice.” (People v. Toro (1989) 47 Cal.3d 966, 975–976,
fn. omitted, italics added (Toro), disapproved on another ground in People v. Guiuan
(1998) 18 Cal.4th 558, 568, fn. 3.)
       Defendant concedes the evidence showed he “had the specific intent to prevent
Anderson from making a report of the incident to the police or to have appellant arrested”
under subdivision (b). And, there is no dispute the jury was properly instructed on the
elements of dissuading a witness from reporting a crime. The issue, therefore, is whether
defendant was put on notice of the charge of dissuading a witness from reporting a crime
under section 136.1, subdivision (b), and failed to object.2 As the court in Toro
explained, jury instructions can put defendant on notice of a charge in the same way
amending the information does. (Toro, supra, 47 Cal.3d at pp. 975–976.) Defendant
made no objection to the subdivision (b) jury instruction, and indicated he was


       2
           People v. Hallock (1989) 208 Cal.App.3d 595, on which defendant relies, is
inapposite. Defendant there was charged with violating section 136.1, subdivision (b),
but the jury was instructed on subdivision (a). There was not, however, sufficient
evidence to support a conviction under subdivision (a). But there was sufficient evidence
to convict the defendant under subdivision (b). (People v. Hallock, at p. 607.) The Court
of Appeal reversed on the ground of instructional error, permitting the defendant to be
retried on the subdivision (b) charge. (People v. Hallock, at pp. 607–608.) In addition,
the trial court made other instructional errors, which compounded the problem arising
from the erroneous instruction on witness intimidation. (Id. at pp. 609–610.) Here, in
contrast, there was sufficient evidence to support giving the subdivision (b) instructions
and, in turn, his conviction under that subdivision.


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“satisfied,” thus waiving any objection and “consent[ing] to the new charge.”3 (Toro, at
p. 976.)
                                       DISPOSITION
       The superior court is ordered to correct the abstract of judgment to indicate
defendant was convicted of Penal Code section 136.1, subdivision (b), rather than
section 136, subdivision (a)(1), and forward a copy of the amended abstract of judgment
to the Department of Corrections. In all other respects, the judgment is affirmed.




                                                 _________________________
                                                 Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Becton, J.




       3
        We note a clerical error in the abstract of judgment, which indicates defendant
was convicted of dissuading a witness under section 136, subdivision (a)(1). (CT 405)
We thus order the abstract of judgment to be corrected.
      
         Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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