People v. Hancock CA1/1

Filed 3/28/14 P. v. Hancock CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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