People v. Silberman CA5

Filed 7/12/16 P. v. Silberman CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070893 Plaintiff and Respondent, (Super. Ct. No. CRF45224) v.

DUSTIN ZACHARIAH SILBERMAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. William Wei Lee, under appointment by the Court of Appeal, for Plaintiff and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P.J., Franson, J. and Peña, J.

Appellant Dustin Zachariah Silberman appeals his convictions on charges of possession of a firearm by one with a prior violent offense (Pen. Code, § 29900, subd. (a)/count 1) and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)/count 3). Appellant contends the trial court prejudicially erred when instructing the jury at his trial by failing to instruct on a proposed defense and failing to include an instruction related to expert testimony. For the reasons set forth below, we affirm. FACTUAL AND PROCEDURAL BACKGROUND Around 2:00 a.m. on the morning of September 15, 2014, Sonora Police Sergeant Turu Vanderwiel was flagged down by a citizen who reported two people were on the back porch of a nearby house that should have been vacant. Sergeant Vanderwiel drove to the residence to investigate. When he arrived, he encountered two suspects, appellant and Brandon Jourdan. After asking why appellant and Mr. Jourdan were at the property, Sergeant Vanderwiel inspected the back porch for signs of a break-in. In the course of that search, Sergeant Vanderwiel located a handgun in plain view, near some furniture. The gun was loaded, with four rounds in the magazine but none in the chamber. As Sergeant Vanderwiel worked to retrieve the weapon, he moved a drawer that was in his way. In doing so, Sergeant Vanderwiel discovered a silver pill bottle that was later found to contain 1.026 grams of heroin. Further inspection of appellant and Mr. Jourdan’s arms showed what Sergeant Vanderwiel believed to be fresh venipuncture marks. Initially, appellant professed to know nothing of the gun or the drugs. In a later statement, however, appellant said he discovered the gun while working at the residence, although appellant gave conflicting accounts on where, claiming to have found the gun both in the living room and in a box on the back porch. Appellant asserted he hid the gun under some furniture and admitted to handling the weapon for about five minutes. Appellant was able to describe the gun, including the fact that it was loaded but had no