1

Filed 7/16/14 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent,

v. BRIAN COLE FIORE, Defendant and Appellant. A136116
(Humboldt County Super. Ct. No. CR092553S)

Defendant Brian Fiore drove his friend, David Fields, from the Bay Area to Humboldt County so Fields could buy a large quantity of marijuan a

. Instead of buying
the marijuana , Fields stole it at gunpoint, and Fior e drove him away in Fiore’s Jeep. A
chase ensued , and multiple shots were fired at law

- enforcement officer s from the Jeep

. The officers did not fire back. The pursuit ended when the Jeep hit a spike strip and
drove over an embankment. Fields was found dead with a gunshot wound in the head.
Fiore was found with a self

- inflicted gunshot wound in the head, and he survived.2

Fiore was charged with multiple offenses, and a jury convicted him of some but

not others. He was convicted of one count of second d egree murder of Fields 1 and an accompanying enhancement of personal and intentional discharge of a firearm resulting
in great bodily injury or death ; 2 two count s of attempted m urder , with one accompanied by an enhancemen t of personal and intentional discha rge of a firearm; and two counts of first degr ee robbery

. 3 The jury was unable to return verdicts on three other counts of

at tempted murder , one count o f first degree burglary, and one count of resisting an
executive officer and accompanying enhancements , and the se counts were dismissed

. It

1 The verdict form for the murder count and the pronouncem ent of that verdict referred to Penal Code section 187, subdivision (a) without identifying the degree of murder. The jury was instructed, however, that it could find Fiore guilty only of second degree murder, and it could do so either under Penal Code se ction 187 on a theory of malice murder or under Penal Code section 189 on a theory of felony murder with robbery as the underlying felony. Thus, “giving effect to the manifest intention of the jury,” the conviction was necessarily for second degree murder . ( People v. Escarcega (1969) 273 Cal.App.2d 853, 858.) Although felony murder is first degree murder when the underlying felony is robbery (see Pen. Code, § 189), neither party takes issue with the jury ’s having been instructed on second degree murder a s to that theory. All further statutory references are to the Penal Code unless otherwise noted.

2 The personal

- discharge enhancement for the murder count was brought under section 12022.53, subdivision (d).

3 The attempted murder convictions were under s ections 187, subdivision (a) and 664, subdivision (e). The robbery convictions were under section 211. The personal

discharge enhancement for one of the attempted murder counts was under section 12022.53, subdivision (c). Fiore was also convicted of sev eral other crimes that are not directly at issue here: one count of evading an officer (Veh. Code, § 2800.2, subd. (a)); one count of sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) with an accompanying enhancement of personal use of a firearm (§ 12022.5, subd. (a)); one count of transportation of an unlawful assault weapon (former § 12280, subd. (a)(1), now § 30600, subd. (a)); and one count of shooting at an occupied motor vehicle (§ 246).3

was also unable to return a verdict on an allegation of personal use of a firearm that accompanied both robbery counts. 4
Fiore was sentenced to a total of 68 years and eight months to life, plus three
additional life sentences. The sentence included a term of 15 years to life for the murder, plus a consecutive term of 25 years to life for the enhancement of personal and intentional discharge of a firearm ; a life sentence for both attempted murders, plus a
consecutive term of 20 years for one of them based on the personal

- discharge
enhancement ; a term of six years for the first robbery count; a term of two years for the second robbery count; and a term of eight months for evading an officer. The trial court stayed the sentences for the remaining counts. On appeal, Fiore argues that the trial court erred by (1) failing to instruct the jury that duress is a defense to felony murder; (2) improperly instructing the jury on the intent necessary to establish an aider and abe ttor’s liability for robbery ; and (3) permitting lay opinion testimony that there was “possible brain tissue and bone matter” on the inside of
the J eep’s front passenger

- side door. He also claims that there was i nsufficient evidence to suppor t his second robbery conviction and that his convictions should be reversed for
cumulative error. We agree that the second robbery conviction must be reversed , but we otherwise reject Fiore’s claims and affirm the judgment.

4 The attempted murder counts were b rought under sections 187, subdivision (a) and 664, subdivision (e). The burglary count was brought under section 459, and the accompanying enhancement of personal use of a firearm was brought under section 12022.5, subdivision (a). The count of resistin g an executive officer was brought under section 69, and the accompanying enhancement of personal use of a firearm was brought under section 12022.5, subdivision (a). The enhancement of personal use of a firearm accompanying both robbery counts was brough t under section 12022.53, subdivision (b).4 I. F ACT S
A. The Robbery

. Fiore , age 19, me t Fields at a party in early 2009. About a week later, Fiore approached Fields to buy marijuana for personal use. The two men began spending a lot of time together, and Fiore considered Fields a good friend. Fields did not have a car, so Fiore drove him around the Bay Area in Fiore’s Jeep Cherokee i n exchange for gas money, marijuana, food, and clothes

. Fiore also drove Fields to Humboldt County so Fields could visit his fiancée , Kyrie Slade, and buy marijuana. Fields sold marijuana he bought in Humbol dt County to customers in the Bay Area, usually in Richmond or Vallejo, and Fiore often accompanied him. Fiore believed
that m any of Fields’s customers looked like gang members, and the se customers often displayed weapons

. Fields usually carried a G lock .45 pistol

. Fi ore wore a bulletproof
vest when he accompanied Fields to these drug sales because he did not like carrying a
gun, al though he had done so on a few occasions. Fiore wore the vest “pretty much all the time when [ he and Fields ] were

. . . doi ng drop [

- ] offs, pick [] ups, transactions” involving marijuana because it gave him “peace of mind.”
On May 11, 2009 , Fiore drove Fields around the Bay Area so Fields could collect

money to buy marijuana in H umboldt County. Th is Humboldt deal had come about through Chris Gault , who introduced Fields to the seller, Anthony Young

. Fields and Young agreed that Young would sell Fields 20 pounds of marijuana. A fter s everal stops,
Fiore and Fields drove north and arrived at the Eureka home of a friend of Slade’s

. Slade and her friend were there, and a fter “hanging out” with them for a while , the
men left

. After they got in the Jeep, Fields took the Glock from underneath the front passenger’s seat and put it in his waistband. Over the phone, Gault directed them to Young’s house in McKinleyville. They parked across the street from the house, and
Gault and Young came out to meet them

. When Young asked Fields “if he had the money,” Fields opened his backpack , and all four men went inside t he house.5

Accounts of w ho was at the house differed . Fiore testified that there were several other people at the house, including Young’s brother; Juan Montez, a close friend of Gault’s ; Jason Hatfield, whom Gault and Montez also knew; and at least one woman.
Fiore believed th at other people present whom he could not identify owned the marijuana
and were there to make sure they got their m oney. Montez, who arrived at the house with
Gault shortly b efore Fiore and Fields arrived, testified that Young, Young’s brother, Hatfield, and an unidentified woman a nd man were there. According to Gault, only he, Montez, Young, Fields, Fiore, and Hatfield were present. 5 Young, Gault, Fields, and Fiore went into the kitchen, where the marijuana was in a duffle bag and a Rubbermaid tub . You ng said he had been able to amass only 1 4 pounds of the drug. Fields and Fiore were offered and accepted two blunts (marijuana cigars) so they could sample the marijuana , and the men socialized

. Meanw hile, Montez
and Hatfield were in the living room on a couch

. Gault testified that several minutes after Fiore and Fields arrived, Fields said, “I need to make a call and make sure this is okay, that we can go t hrough with it.” Fields
left the house and soon returned holding a sawed

- off AK

- 47 rifle

. 6 Gault turned to see Fiore holding a “black pistol” three inches from G ault’s face. According to Gault, Fiore
told him , “I am going to kill you if you don’t get on the ground. I will [f]’ing blow your head off.” Gault obeyed. Fiore then pointed the gun at Ha tfield and Montez and said, “Stay the fuck there. Stay right there

. . . . Don’t move. Don’t move,” but Hatfield managed to run out side

. Fields put the AK

- 47 by Gault’s face and said, “Can you see the bullet? Can you see the bullet? This is your last three seconds of life.” Gault said, “Man, just leave. Just take what you want and leave.” He d escribed the robbery as “a

5 Gault testified under a grant of transactional and use immunity. Aside from Fiore, Gault and Montez were the only people present at Young’s house who testified at Fiore’s trial.

6 Fiore had seen Fields with wha t he believed to be the same gun once before, when the men used it for target practice in a rural area.6

well[

- ] oiled machine

. . . . [T]hey knew what to do.” Montez generally corroborated Gault’s testimony
, although he testified that Fiore’s pi stol was “a silver

- ish color.”
Fiore told a different story about what happened in the house , and he denied having used a gun. He testified that he was in the kit chen, talking to Gault, and did not
notice that Fields had left. He then heard someone yell, “Get the fuck on the ground. Get the fuck on the ground.” He turned and saw the barrel of an AK

- 47 sticking through the sliding glass door to the living room. Fields was “swinging [the gun] around” as the other people began getting on the ground. Fiore testified that he “froze up ” and did not immediately understand what was happening because he and Fields had not planned it

. Fields then told Fiore to take the marijuana. Fiore grabbed the duffel bag and the tub and began dragging them out , but he had to go back because he forgot his keys on the kitchen

coun ter. Fiore then “backped al[ed]” out of the house, dragging the bag and the tub along
the floor. Once outside, he put the bag and tub in the Jeep’s rear ca rgo area. According to Gault, after Fiore took the marijuana and left the house, Fields “held [the remaining people] at gunpoint for about two minutes, ” threatening to kill them if they moved. Gault heard a car honk, and Fields ran outside. Gault then “heard them
screech off.” He t hought he heard gunshots as Fields and Fiore drove away but was not sure because he “was completely terrified at th at point.” “[W]ithin 30 seconds,” Young
called 911 and reported that shots had been fired

. 7 Fiore, who could not recall honking the Jeep’s horn , saw Fields exit the house as he was starting the car . Fields got into the Jeep and put the AK

- 47 between his legs. He

seem e d to be agitated and “on

. . . an adrenalin[e] rush

. ” At Fi elds’s direction, Fiore got

on Highway 101 and headed south.

7 Whether shots were actually fired was uncertain. Gault acknowledged that he was the only one in the house who heard gunshots. Fiore testified that n o shots were fired, and no physical evidence was ever recovered near Young’s house to suggest that they were. Gault also acknowledged that in his initial interviews with law

- enforcement officers he lied about other details of the robbery. At trial, he at tributed this lying to his fear of Young.7

B

. The Chase

. Fiore testified that as they were driving, he asked Fields, “Hey, what the fuck was that?” Fields “started getting paranoid” and told Fiore, “You better not rat on me. I know where you live.” Fields also threatened Fiore’s family. Fiore pr omised not to tell
anyone about the robbery and said, “Where do you want to go? Wherever you want [to] go, I will take you. But after that, me and you, we’re done.” Despite Fiore’s assurances,
Fields “was still paranoid .” He directed Fiore onto Highway 299 headed east

. After they got on Highway 299, Fiore noticed a patrol car behind them. Fields told him to keep driving if its sirens were turned on . When Fiore said he was going to pull ove r, Fields said, “No, you’re not.” Fields, who was right

- hande d, then pulled out
the Glock , aimed it at Fiore ’s chest , and said, “If you try to pull over, I am going to shoot

you

. ” Fiore began to “plead” with Fields, telling him, “I don’t want to do this, dude. Come on, dude, just let me pull over.” Fields put the pistol to Fiore’s temple and said, “Shut the fuck up. If you don’t do what I say, I am going to put a bullet in you.” Fiore said, “All right. Hey , all right. Just drop the gun,” and Fields did. About a minute later,
the patrol car’s siren s we re turne d on

. The patrol car was driven by Deputy Braden Brawner of the Humboldt County Sheriff’s Office. At about 10:45 p.m., Deputy Brawner had heard a broadcast that “ a gold Jeep Grand Cherokee had fired several shots from an AK[

- ]47.” Soon after, another
br oadcast stated that “a g old Jeep Cherokee had been seen

. . . and the occupants were waiving [ sic ] a firearm out the window.” Deputy Brawner, who was patrolling Highway 299, began driving west toward Highway 101. Within minutes , a gold Jeep Grand
Cheroke e passed him going east, and he turned around to go after it. He checked the Jeep’s license plate and learned that it was registered to a person with the last name of Fiore. Deputy Brawner decided to wait until back up arrive d to pull the Jeep over. Depu ty Brawner described the relevant stretch of Highway 299 as winding “with some sharp turns at points; and either side of the roadway in many places has steep drop

offs, steep embankments that lead down to the [Trinity River] below.” The number of8

lanes in each direction varies throughout. Conditions at the time were clear, but there

was little lighting along the road. Traffic was sparse. Soon after Deputy Brawner started following the Jeep, Deputy Chance Landreneaux pulled in behind him , and Deputy Jose ph Conlin pulled in behind Deputy
Landreneaux. Deputy Landreneaux decided to stop the Jeep at milepost 12, a point

w here the road widened and was straight

. After t he three deputies turned on their overhead lights, the Jeep’s speed increased to 75 to 80 m iles per hour. The deputies activated their cars’ siren s and gave chase

. Fiore testified that after the Jeep was “lit up” by the law

- enforcement vehicles, Fields turned around and kneeled on the passenger’s seat, aimed the AK

- 47 out the rear cargo window , and fired a shot. The window did not break. Fields then crawled into the
back seat and fired a few more shots at the window , and “it exploded, and it came over [Fiore] like somebody just poured a bucket of glass on [him].” Deputy Brawner, however, tes tified that he never saw gunshots coming from the Jee p’s rear cargo area and
never saw the back window break . The other deputies agreed that the y never saw the Jeep’s back window break

. A round milepost 17, Deputy Brawner heard “appr oximately two to four l oud

pops

. . . and saw flashes of light which [he] determined [were]

. . . muzzle flash [es] ” from the Jeep’s passenger side. He could not see how many people were in the Jeep
because its windo ws were tinted. Deputy Landreneaux testified that the first sh ots fired were at milepost 19.5. He heard three quick “popping sounds” and saw a muzzle flash from the passenger side of the Jeep. Deputy Conlin also saw a muzzle flash and testified
that he heard two to four gunshots that sounded like they c ame from an “automatic weapon.” Deputy Conan Moore was headed westbound on Highway 299 when he heard a broadcast that Deputy Brawne r was chasing the Jeep . Deputy Landreneaux directed Deputy Moore by radio to pull off the road and turn off his car’s lights so that th e Jeep’s occupants would not shoot at him as they passed . Deputy Moore parked perpendicular to
the roa d, directly facing it. As the Jeep pass ed him, at around milepost 21.6, h e heard9

four “rapid” gunshots that sounded like they came from “an automatic we apon.” He “saw the

. . . passenger of the vehicle hanging out the front passenger wind ow of the
vehicle ” with “what appeared to be a rifle or automatic weapon in his hand” that was pointed “[t]o the rear of the vehicle.” The man appeared to be pulling th e trigger with his right hand. Deputy Moore activated his lights and siren and pulled in behind Deputy Conlin’s car to join the chase. The deputies testified that groups of two or more gunshots came from the Jeep’s passenger side at several other points

. Based on Deputy Landreneaux’s reports to dispatch, shots were also fired from the Jeep around mileposts 19, 21, 23, 26, 27, and 35. Deputy Brawner believed there had been “at least two or three more volleys of gunfire”
not reflected in th at list. The d eputies agreed that the shots tended to occur as the
vehicles went around curv es to the right. Throughout the chase, the Jeep generally stayed in its lane, although it swerved into the opposite lane several times in order to pass other
vehicles. Deputy L andreneaux testified that in his opinion, based on the control with which the Jeep was driven, it would have been “impossible” for the driver to have been
the one firing out of the passenger side. Fiore testified that he “kind of went within [him]self” an d could not re member portions of the chase. He recalled that Fields shot at the law

- enforcement vehicles from
the back seat and possibly f rom the rear cargo area , but he never saw Fields lean out of
either passenger

- side window. Fields was yelling that h e was going to kill the deputie s

. Fiore and Fields were not talking to each other, and Fiore had become convinced that Fields was going to kill him. Fiore considered jumping out of the Jeep , but he was worried one of the pursuing cars would run over him. He believed that if he stopped the Jeep, Fields would kill him “and probably would [shoot] at least one officer.”
Slade testified that she received a telephone call from Fields during the chase

. According to Slade, “h e was very hyped

- up and scared and screaming,” and he told her, “Babe, we are in a high speed chase. This is it.” When she asked what he meant, he said, “I am not going to prison again. Kiss my son for me. I love you.” She “heard him screaming at [Fi ore], telling him to drive, and

. . . cussing.” She also heard Fiore10

swearing, and he sounded scared as well. It then sounded like Fields put the phone down , and she heard gunshots. Fields did not speak to her again , and after a f ew minutes she hung up

. C

. The End of the Chase

. Meanwhil e, t he deputies had requested help from the California Highway Patrol (CHP). The plan was for CHP Officer Eric Nelson to place a spike strip on the road to stop the Jeep before it reached the town of Willow Cree k

. Officer Nelson decided to place the stri p at milepost 35.88. He parked his car on the south side of the road , facing

west , and turned on his lights, which he hoped would distrac t the Jeep’s driver enou gh to prevent the spike strip from being noticed

. Before Officer Nelson could place the spike strip on the road , he was surprised to see an SUV driven by CHP Officer Michael Noland drive past him headed west . Officer
Noland , who had been wrongly informed that the chase was already over, passed Officer
Nelson and p ulled his vehicle into a turnout on the north side of the road, also facing

west

. Less than 30 seconds after Officer Noland passed Officer Nelson , Deputy Landreneaux radioed that the chase was approa ching Officer Nelson’s location. Officer Nelson placed the spike strip in the middle of the road and “well in front of” his vehicle, where he believed the Jeep’s dr iver would not be expecting it. Officer Noland saw a vehicle approaching, but he did not realize that it was part of
the chase until it had almost reached him. He quickly leaned toward the passenger seat and heard “what sounded like four gunshots and a tire popping.” According to Deput ies Brawner and Landreneaux, a few rounds were fired from the Jeep as it passed Officer Noland’s vehicle , which was on the Jeep’s driver’s side

. D eputy Landreneaux testified that the shots sounded “more like a pistol being fired” and not like “the crisp pop of a
rifle.” Deputy Moore testified that the shots sounded like they came from “ possibly a semi

- automatic rifle , ” with pauses in between. He a lso saw muzzle flashes from the driver’s side of the Jeep.
A few seconds la ter, Officer Nelson heard five to seven shots “much louder and much more close.” Deputies Brawner, Landreneaux, and Moore also heard many shots,11

which sounded like the previous sh ots from “the automatic weapon
, ” as the Jeep passed
Officer Nelson ’s vehicle. Officer Nelson was holding the spike strip’s leash . He felt the Jeep go over the strip and quickly pulled it out of the road so that the pursuing vehicles
would not run over it

. In contrast to the law

- enforcement officer s’ testimony , which tended to suggest th e Jeep’s driver fired the Glock at Officer Noland, Fiore testified that Fields fired those shots. According to Fiore, a s the Jeep passed Officer Noland’s vehicle, he felt a “concussive force” that felt “different” from the one from the AK

- 47 and “felt a different
window break and the glass come over [him] again, ” which he believed was the left rear
window. Fiore had seen Fields put down the AK

- 47 and reach for his waistba nd, although he did not actually see Fields draw the Glock

. Fiore testified that Fields returned to the rear cargo area after shooting at Officer Noland’s vehicle, and shot at Officer Nelson’s vehicle about five or six seconds later

. Fiore testified that after he drove over the spike strip, he told Fields, who was still in the rear cargo area, “Hey[,] it’s game over, dude. The car is done.” Fields responded
that “it [is n ’t ] over until [I say] it’s over,” which Fiore interpreted as a threat to kill him i f
he stopped the Jeep

. Fiore saw the Glock resting on the back seat. He decided to shoot
himself with it : “I made up

. . . my mind, I am not going to let [Fields] kill me. If I get
the c hance, I will take my own life

. . . . [¶]

. . . [¶]

. . . I felt like I had no control over my life. My life was in this guy’s hands. He is threatening me

. . . . [T]o me it was like a last positive thing I could do. I was taking back control o f my life.”
D

. The Crash

. After traveling over the spike strip, the Je ep slowed to about 50 miles per hour but continued to drive normally for a bout half a mile

. 8 At a point where the road made a
wide curve to the right, the Jeep continued traveling straight and crossed the west bound
lane into a turnout at milepost 36.5

. W ithout braking , the J eep hit a three

- to four

- foot

-

8 Evidence was presented that it is possible to maintain control of a vehicle for several seconds after it runs over a spike strip because such devices cause tire deflation to occur slowly.12

high embankment and disappeared over it. None of the law

- enforcement offic er s heard any gunshots after the shots were fi red at Officer Nelson’s car

. None of them had fired any shot s throughout the chase

. The deputies “established a perimeter along the embankment.” The terrain below the embankment was at a grade of “approximately 45 degrees” and was “very rough [,]

. . . very difficult to walk down, loose gravel, shrubbery.” “There was

. . . heavy vegeta tion, downed tree limbs, logs, that kind of thing.” It was “very difficult to see” because it was dark and the number of cars stopping in the turnout had kicked up a lot of
dust. Fiore woke up and realized he had driven off the road. He was “bleeding al l over the place” and knew he had shot himself in the head . He tried to honk the Jeep’s horn, but it did not work. He climbed out of the driver’s

- side window and started walking up
the hill to seek help

. About 2 5 minutes had passed since the J eep went o ver the embankment when t he deputies saw Fiore. Deputy Landreneaux ordered him to put his hands up and walk up the hill, and Fiore obeyed. After Fiore was “about halfway up the hill,” Deputy
Landreneaux told him to take off his sweater. Fiore was wearin g a bulletproof vest . He
took it off and continued up the hill

. Deputy Landreneaux character ized Fiore as “very cooperative

. . . . [H] e did exactly what we told him.” Deputy Jesse Taylor arrested Fiore. Fiore “had a large amount of blood extending
fr om his chin under his neck area down to his shirt” and “a bloody wound on his
forehead.” He had a bullet hole under his chin and a nother one in the top of his head

. He
seemed to be in shock. Fiore gave his name to Deputy Taylor and told him that he had “tried to shoot himself.” After Fiore was taken into custody , Fields’s body was discovered on the hillside. Deputy Conlin rode with Fiore in the ambulance to a hospital. Fiore was “cognizant of what was going on” and “seemed shocked to be alive.” Fiore was hard to
understand because he had a hole in his mouth , and “[i]t sounded like he had a mouthful of marbles.” Most of their communication was through hand gestures , “ almost like13

playing charades

. ” By placing his fingers beneath his chin and pretendin g to pull a trigger, Fiore indicated to Deputy Conlin that he had tri ed to commit suicide. He would

not iden tify the Jeep’s other occupant, but he indicated that he had driven the Jeep and
that his friend had done all the shooting at the law

- enforcement v ehicles . Dep uty Conlin
testified that Fiore also indicated that his friend had shot himself with the AK

- 47. Fiore could not recall talking to Deputy Conlin. 9

E

. The Physical Evidence

. The Jeep fell about 1 75 feet below the embankment and left a “debris field” in its
wake

. CHP Officer Willard O’Diear, an expert in accident reconstruction and collision analysis, testified that the Jeep had rolled over at lea st three times. It sustained “severe damage ” in its trip down the hill. All of the windows excep t the right rear passenger’s window, which was all the way up, were broken. There was “tinted darker glass” in the

rear cargo area an d on the rear bumper and “green[

- ] colored windshield glass throughout the vehicle.” Officer O’D iear testified that if the rear cargo window had shattered as the Jeep was t raveling , the vast majority of the glass would have fallen ou tside, not inside,
the vehicle.
The Jeep’s in terior after multiple rollovers was likened “to the inside of a clothes dryer.” Blood was all over the car’s interior and “ items [were] strewn all about,” many of
them also covered in blood. The evidence tended to show that at the time of the crash, Fiore had been wearing his seatbelt and Fields had not

. Officer O’Diear testified that the
location of blood spatter and an imprint of the AK

- 47 on the Jeep ’s headliner established
that Fields’s body and that gun had been thrown backward against it and were not in the rear cargo area when the Jeep went over the embankment. The roof liner had a hole in it that corresponded to a bullet hole in the exterior of the driver’s side of the roof , which

9 During the defense cas e, a psychiatrist testified that although the bullet did not hit Fiore’s brain, Fiore had a brain injury as a result of the concussive force of either the bullet or the crash and also suffered from post

- traumatic stress disorder. The physical and emotiona l trauma Fiore sustained could have affected his ability to remember details and caused him to form incorrect memories.14

was too big t o have been caused by a 7.62

- by

- 39

- millimeter round, the type of bullet fired by an AK

- 47

. An evidence technician , Karen Quenell, testified that on “th e interior front passenger door panel” there was “what appear[ed] to be blood, possible tissue or
brain matter [,] and possible bone fragments .”
A Glock .45 and an AK

- 47 were recovered near the Jeep

. The AK

- 47 had 25 rounds still in the maga zine. The Glo ck ’s magazine was empty
, and there was one round
in the chamber. N either gun had usable latent prints on it

. Unused ammunition from both guns was found on the hillsid e and in the Jeep. Expended 7.62

- by

- 39

- millimeter cartridges were found on the hillsid e and in the Jeep, and one expended .45 cartridge was found inside the Jeep. A large quantity of bagged and loose marijuana was located on the
hillside and inside the Jeep , and b undles consisting of a $100 bill wrapped around $1 bills, total ing $1,198, wer e l ocated in a backpack o n the Jeep’s front passenger floor

. Two casings from .45

- caliber bullets were recovered in the road at milepost 35.88, and an expert in firearms identification testified that a bullet recovered from Officer Noland’s
vehicle was co nsistent with the type of bullet fired by a G lock .45. No bullets, cartridges, or glass were recovered at any other location along Highway 299

. Fields’s body was found about 15 feet from the Jeep. Fields had gunshot wound s through both of his temples, a nd the sweatshirt he was wearing had a small hole on the left side of the hood and a larger hole on the right side that lined up with those wounds, suggesting that Fields had his hood up w hen he was shot. A 7.62

- by

- 39

- millimeter cartridge case was f

ound i nside Fields’s sweatshirt. He had a necklace pendant in the shape of an AK

- 47

. The forensic pathologist who performed Fields’s autopsy testified that based on the “beveling of the bone” in Fields’s skull where the bullet had hit it, the wound s to Fields’ s head were “ consistent [with] a bullet entrance wound on the

. . . left side of the head, and then an exit wound on the right side of the head,” “slightly above and in front of [bo th] ear[s].” The coroner who assisted at the autopsy explained that exit w ounds are generally bigger than entrance wounds, “[s]ometimes caused by expansion of the bullet, and sometimes caused by what we call secondary missiles, pieces of bone going out.”15

There was no “gun[] powder stippling[,]

. . . soot[, or] muzzle imprint” on the skin around the entrance wound, which was consistent with Fields’s having been shot at close range while wearing the hood

. Testimony was also introduced that people who use guns to commit suicide are more likely to use their dominant hand to do so. S ince Fields was right

- handed, the physical evidence tended to suggest that he had not shot himself.
The bullet that killed Fields was never recovered. The forensic pathologist opined
that t he wound was “caused by a large[

- ] caliber handgun,” such as a Glo ck .45 , and “was not caused by a high[

- ] velocity round,” such as one from an AK

- 47, which would have caused significantly more damage. The coroner agreed that the wound could have been caused by a Glock .4 5 and did not appear to be caused by “ a high

- power ed rifle , ” which “would cause much more vast destruction

. ” A defense expert in firearms and ballistics, however, indicated that it was possible for a 7.62

- by

- 39

- millimeter round to travel through the head without causing a “huge explosion.” Officer O’Die ar testified that Fields and Fiore most likely were shot before the Jeep went over the embankment. Based on the tire marks on the road before the embankment, there was little “steering input” and the Jeep’s brakes were not applied, making it most likely t hat either the driver was already incapacitated or the car was “deliberately steered” into the embankment. Fiore testified th at he could not recall grabbing the Glock or shooting himself, and he could not remember how Fields was sh ot.
II. D ISCUSSION A

. T he Trial Court P roperly Did Not Instruct the Jury that Duress May Be a Defense to Felony Murder. Fiore argues that the trial court erred by not instruct ing the jury that duress is a defense to felony murder. We disagree. Although t he jury wa s not instru cted that duress is a defense to felony murder, it
was in structed that duress i s a defense to robbery. I t was instructed , under a modified
version of CALCRIM No. 3402 , that Fiore was “not guilty of a ttempted m urder [ , ]

r obbery, b urglary, t ransportation of m arijuana, r esisting a p eace o fficer, s hooting at an16

o ccupied v ehicle [ , ] or e vading a p eace o fficer if he acted under duress. ” Fiore’s trial counsel did not object to th is instruction.
Af ter giving the instruction on duress as a defense to robbery and ot her crimes , the
trial court discussed with counsel whether dures s could be a defense to felony murder if it “negate[d] the robbery.” The court determined there was no need to instruct the jury that duress may be a defense to felony murder, observing that “if the jury does not find
Mr. Fiore guilty of the robbery [,] then they cannot find him guilty of murder based upon that particular theory. The only means by which they could find him guilty would be by some theory other than felony murder. So I am satis fied, while the instruction I think could be more legally precise, I don’t know that I can make it understandable to the jury, necessarily. And it’s correct, in fact, as it’s stated.” The court asked Fiore’s trial counsel if he had “any comments

. . . to put on the record relative to that,” and counsel responded
, “No, Your Honor. Thank you.” Fiore contends that his claim of instructional error is preserved for review because,

e ven though his trial counsel did not object to the instruction below, his cou nsel “did not agree with it, either.” We conclude the claim is reviewable, but for a different reason

. An appellate court may review an instruction regardless whether an objection to it was raised below when the claim on appeal is that the instruction wa s “an incorrect statement
of the law

. . . , or the instructional error affected the defendant’s substantial rights.” ( People v. Mason (2013) 218 Cal.App.4th 818, 823; § 1259; see also People v. Wilkins (2013) 56 Cal.4th 333, 348

- 349.) Here, F iore contend s that the instruction was legally
incorrect and failed to “in struct the jury correctly on a necessary element of the crime.” 10
We review a claim of instructional error de novo. ( People v. Ghebretensae (20 13 ) 222 Cal.App.4th 741, 759.) “ ‘ “[T]he correct ness of jury instructions is to be determined from the entire charge of the [trial] court, not from a consideration of parts of an
instruction or fr om a particular instruction.” ’ ” ( People v. Musselwhite (1998) 17 Cal.4th

10 Because we conclude that the claim is reviewable, we do not consider Fiore’s alternative argument that his attorney’s failure to objec t below constituted ineffective assistance of counsel.17

1216, 1248.) In particular, “ ‘ “[t]he absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.” [Cit ation.]’ ” ( People v. Bolin (1998) 18 Cal.4th 297, 328.) “Jurors are presumed able to
understand and correlate i nstructions and are further presumed to have followed the court’s instructions.” ( People v. Sanchez (2001) 26 Cal.4th 834, 852.)
We must address Fiore’s claim that the trial court erred in failing to instruct the jury on duress as a defense to felony mur der even though the jury may have unanimously
convicted Fiore of malice murder . T his is because t he jury was instructed it could
convict Fiore of second degree murder on the alternative theories of felony murder or
malice murder

. 11 Since we cannot tell fr om the verdict which of those theories the jury accepted, we must consider Fiore’s c laim of instructional error even though it bears only on the theory of felony murder . (See People v. Morales (2001) 25 Cal.4th 34, 43.) Turning to the merits of Fiore’s a rgument, we are not persuaded by it . D uress is generally not a defense to murder, although it “can, in effect, provide a defense to murder on a felony

- murder theory by negating the underlying felony.” ( People v. Anderson (2002) 28 Cal.4th 767 , 772, 784; § 26.) “If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony.” ( Anderson , at
p. 784.) The jury here was instructed that to convict Fiore of felony murder, it had to find
that he committe d robbery

. It was also instructed that dure ss is a defense to robbery . W e must assume that the jury followed these instructions and would not have found Fio re guilty of murder on a felony

- murder theory had it believed that he participated in the robbery under duress

.

11 If the jury had been instructed that Fiore was guilty of first degree murder if it accepted the felony

- murder theory, Fiore’s conviction for second degree murder would have established that the jury unanimously accepted the theory of malice murder. But the jury was instructed (incorrectly , ante , f n. 1) that either theory would result in a conviction for second degree murder, and it was instructed (correctly) that it did not have to unanimously agree on a theory of felony murder or a theory of malice murder to return a guilty verdict on the murder charge. (See § 26, subd. six; People v. Moore (2011) 51 Cal.4th 386, 413.)18

Fiore makes two arguments that, while couched in terms of prejudice, go to
whether the trial court improperly failed to instruct the jury on duress as a defense to felony murder

. First, he argues that the jury could have concluded that he w as guilty of felony murder w ithout considering whether “he was only continuing to participate in the robbery because of duress.” But this argument incorrectly assumes that he would not be guilty of felony murder if the jury found that he no longer wanted to participate in the robbery at the time he killed Fields

. 12 Section 189’s requirement that a killing be “committed in the perpetration of” the underlying felony is satisf ied as long as the two crimes “ ‘ “are parts of one continuous transaction.” ’ ” ( P eople v. Gutierrez (2 002)
28 Cal.4th 1083, 1141.) “ ‘There is no requirement of a strict “causal” [citation] or “temporal” [citation] relationship between the “felony” and the “murder.” ’ ” ( Ibid. ) Rather, section 189 “ ‘obviat[es] the necessity for

. . . any technical inquiry concerning whether there has been a completion, abandonment, or desistence of the [felony] befo re the homicide was completed.’ ” ( People v. Cavitt (2004) 33 Cal.4th 187, 207.) A lthough
it is true that a defendant must have “ inten ded to commit [the applicable felony] ‘either prior to or during the commission of the acts which resulted in the victim’s death ’ ” ( People v. Lewis (2001) 25 Cal.4th 610, 647 ) , this requirement was satisfied here because
Fiore had to have formed the requi site intent for robbery before he shot Fields

. In short,

o nce the jury concluded that Fiore committed robbery, his liability for felony murder was unaffected by whether he was still a willing participant in the robbery at the time of the killing

. Fiore’s second argument is that the trial court’s failure to instruct the jury on duress as a defense to felony murder prevented him from establishing a withdrawal
defense to that crime. Withdrawal is a defense to aiding and abetting, as the jury was
instructed under CALCRIM No. 401. But if Fiore was liable for felony murder, it was

12 Regardless whether the individual jury members found Fiore guilty under a theor y of malice murder or felony murder, they necessarily concluded that he killed Fields because they were specifically instructed that they could not find him guilty of murder if they found that Fields committed suicide.19

not on the theory that he a ided and abetted the killing. A withdrawal defense was only
releva nt to the murder count to the extent it affected his liability for robbery. Fiore’s imp lication that he could have somehow withdrawn from the robbery for the purpose of applicatio n of the felony

- murder rule is incorrect for the reasons already given. (See People v. Cavitt , supra , 33 Cal.4th at p. 207.)
We conclude that the trial court did not err in declining to instruct the jury that duress is a defense to felony murder.
B. The Trial Court Properly Instructed the Jury on When t he Intent to Aid and Abet a Robbery May Be Formed. Fiore contends that the trial court erred by instructing the jury that he could be guilty of robbery on an aiding

- and

- abetting theory even if he form ed the intent to aid and abet the robbery after Fields began to carry away the stolen property. We disagree. The jury was instructed under CALCRIM No. 1603 that “[t]o be guilty of robbery as an aider and abettor, the defendant must have formed the intent to aid and abet the commission of the robbery before or while the perpetrator carried away the property to a place of temporary safety. A perpetrator has reached the place of temporary safety with the property if he or she has successfully escaped from the scene, is no longer being pursued[,] and has unchalleng ed possession of the property.” Fiore did not object to this jury instruction below

. But we will review his argument because he once again claims that the alleged error amounted to a “failure to
instruct correctl y on

. . . a necessary element ” of a crime

. (See People v. Wilkins , supra , 56 Cal.4th at pp. 348

- 349; § 1259.) As we were required to do on his first claim, we
review this claim de novo , and we consider the instruction in context with the others given. ( People v. Musselwhite , supra , 17 Cal.4th at p. 1248; People v. Ghebretensae , supra , 222 Cal.A pp.4th at p. 759.) The challenged instruction embodies th e holding of People v. Cooper (1991)
53 Cal.3d 1158 ( Cooper ) . In that case, our state Supreme Court held that a defendant may be convicted of robbery as an aider and abettor as long as the defendant’s intent to facilitate or encourage the robbery is “form ed before or during [the] carrying away of the20

[stolen property] to a place of temporary safety.” ( Id. at p. 1161, italics omitted.) The court observed that although a robbery is “initially committed” when all the elements of robbery are present , “for pu rposes of determining aider and abettor liability, the commission of a robbery continues until all acts constituting the offense have ceased.” ( Id. at p. 1164, italics omitted.) The court determined that aiding and abetting liability for robbery can aris e any time during asportation, an element that “is initially satisfied by evidence of slight movement” but continues as long as “the [stolen property] is being carried away to a place of temporary safety .” ( Id. at p. 1165 , italics omitted .)
Fiore charact erizes Cooper , supra , 53 Cal.3d 1158 as overturning the “traditional rule in California that a person who forms his intent to assist a crime after it ha [ s ] been
committed

. . . is only liable as an accessory after the fact,” and he urges that Cooper ’s
hold ing is “ripe f

or reconsideration.” Whatever the merits of his view, we are bound by Cooper and are not at liberty to disregard it. (See Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) Fiore argues that there is nevertheless “an open ques tion as to whether the Cooper rule applies to felony mur der” and that “felony[

- ] murder liability for aiders and abettors” should not be extended to those who form their intent to assist during the escape portion of a robbery. He primarily relies on a benc h note to CALCRIM No. 1603 that provides the instruction should not be given “if the defendant is charged with felony murder.” (CALCRIM No. 1603.) These “use notes,” however, do not “have the force of law.” ( People v. Alvarez (1996) 14 Cal.4th 155, 223, fn. 28.) More importantly, th is particular note appears to address a concern, raised in People v. Pulido (1997) 15 Cal.4th 713 , that is inapplicable here. In that case, our state Supreme Court held that a defendant is not guilty of felony murder under s ection 189 if the defendant aids and abets a robbery after

an accomplice has “kill[ed] in the perpetration of [that] robbery

. ” ( Id. at p. 716.) The court observed that in light of its holding, CALJIC No. 9.40. 1, the precursor to
CALCRIM No. 1603, could i ncorrectly “suggest to a jury that a person who aids and abets only in the asportation phase of robbery, after the killing is complete , is nonetheless guilty of first

- degree murder under the felony

- murder rule.” ( Id. at p. 728.) Here,21

however, there is n o question that if Fiore formed the requisite intent for robbery , he did
so before he killed Fields. Fiore also argues that the holding of Cooper , supra , 53 Cal.3d 1158 should not be applied to felony murder because, just as participants in a conspiracy “ are not liable for substantive crimes which were committed before their entry into the conspiracy, late

joining aider[s] and abettors should similarly not be liable.” We fail to understand how
this analogy helps Fiore since , again, he formed any intent to aid and abet the robbery
before he killed Fields. Furthermore, the decisions Fiore cite s limited liability for acts that were not committed by the defendant

. ( People v. Pulido , supra , 15 Cal.4th at p. 720 [“At the outset, it should be emphasized we are not concerned here with that part of the felony

- murder rule making a killer liable for first degree murder if the homicide is committed in the perpetration of robbery. This case involves only the question of a
nonkiller ’s liability for the felony murder c ommitted by another,” italics in original]; People v. Marks (1988) 45 Cal.3d 1335, 1345.) Here, the jury concluded that the act giving rise to liability

— Fields’s killing

— was committed by Fiore

. We see no reason to conclude that Fiore is less liable for k illing Fields just because Fiore formed the requisite intent for robbery after Fields had already committed robbery

. For a similar reason, we reject Fiore’s suggestion that it would be “unjust” and would extend the felony

- murder rule “ ‘ beyond any rationa l function that it is designed to

serve ’ ” to hold that a late

- joining aider and abettor to robbery may be liable for felony
murder. ( People v. Pulido , supra , 15 Cal.4th at p. 724

. ) The purp ose of the felony

murder rule “ ‘is to deter those engaged in fe lonies” that are inherently dangerous “ ‘from
killin g negligently or accidentally.’ ” ( People v. Bryant (2013) 56 Cal.4th 959, 965.)
Fiore formed his intent to aid and abet the robbery , at the latest, during the escape but
before he killed Fields . Holdi ng F iore liable for Fields ’s death is perfectly consistent
with the goal of deterring killings committed in the course of serious felonie s. Finally, Fiore argues that it would violate due process “to retroactively expand the felony[

- ] murder statute to inc lude an aider and abettor

. . . whose intent to assist the
robber did not arise until after the taking was completed [] and until after the escape22

began.” He relies on Bouie v. Columbia (1964) 378 U.S. 347, in which the United States Supreme Court held tha t “an unforeseeable judicial enlargement of a criminal statute, applied retroactively,” violates due process because it deprives a defendant of “fair warning of the conduct which [the statute] prohibits.” ( Id. at pp. 350, 353

- 354.) Again, we are not pers uaded. We do not see how holding Fiore liable for felony murder on the basis of a robbery he was guilty of under Cooper , supra , 53 Cal.3d 1158 constitutes an
unforeseeable judicial enlargement of section 189. Cooper itself, of course, cannot support Fior e’s argument because it was decided well before the events in question. (See
Bouie , at p. 362.) Similarly, t he escape rule was well established at the time of Fiore’s
offenses. Under this rule , a defendant is liable for felony murder committed in the

pe rpetration of ro bbery if he kills at any time “ ‘ throughout the flight of [the] perpetrator
from the scene of a robbery until the perpetrator reaches a place of temporary safety.’ ” ( People v. Wilkins , supra , 56 Cal.4th at p. 345, quoting People v. Thong vilay (1998)
62 Cal.App.4th 71, 77.) These principles render ed it entirely foreseeable that Fiore could
be found guilty of felony murder if , after the marijuana was stolen but before Fields
reached a place of temporary safety, Fiore formed an intent to ai d the robbery and the n killed Fields

. We conclude that the trial court properly instruct ed the jury with
CALCRIM No. 1603.
C. Any Error in the Admission of Opinion Testimony About the Appearance of Brain Matter and Bone Fragments Was Harmless

. Fiore cla ims that the trial court erred by allowing evidence technician Karen Quenell to testify that she observed possible brain matter and bone fragments on the inside of the Jeep’s passenger

- side door and that th is error requires reversal of his murder
convictio n and both attempted

- murder convictions

. He argues that “whether a substance
is ‘brain t issue’

. . . [or] ‘bone matter’ ” “is beyond common knowledge” and requires expert testimony, yet Quenell was not qualified as an expert on either subject. We
conclud e that any error in the admission of Quenell’s testimony was harmless. The prosecutor showed Quenell a photo graph of the Jeep’s interior and asked her what it depicted. She testified that it was “ a photograph of the interior front passen ger23

door panel” a nd showed “what appears to be blood, possible tissue or brain matter [,] an d possible bone fragments

. ” The prosecutor never sought to qualify Quenell as an expert

on any subject related to the identification of such materials

. Fiore’s trial counsel object ed that the testimony was speculative and lacked foundation. The trial court overruled the objection, stating, “I think based on her expertise and her testimony it is possible blood, bone [,] and brain material, so I will allow it to stand.” On cross

exam ination, Fiore’s counsel elicited the information that this evidence had not been collected or tested, and Quenell admitted she could not say “ [ d ] efinitively” what the
materi al on the door panel was. An expert who is properly qualified may offer an opinio n, based on his or her “special knowledge, skill, experience training
, [or] education,” that is “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (Evid. Code, § 801, subds. (a), (b); People v. Chapple (2006) 138 Cal.App.4th 540, 546.) “ ‘Expert opinion is not admissible if it consists of inferences and conclusion which can be drawn as easily and intelligently by the trier of
fact a s by the witness. [Citation.]’ ” ( Chapple , at pp. 546

- 547.) In contrast, a lay witness’s opinion “ ‘ “is admissible where no particular scientific knowledge is required, or as ‘a matter of p r a ct ical necessity when the matters

. . . obse rved are too complex or too sub tle to enable [the witness] a ccurately to convey them to [the trial ] court or jury in any other manner .’ [Citations.]” [Citation.]’ ” ( People v. Chapple , supra , 138 Cal.App.4th at p. 547.) Unlike an expert opinion, a lay opinion must involve a subject that is “ ‘of such common kno wledge that men of ordinary education could reach a conclusion as intelligently as the wit ness.’ ” ( Ibid. ) There is no “third category of admissible opinions provided by highly experi enced, nonexpert, lay witnesses.” ( Id. at p. 548.) Although a lay “wi tness’s experience may affect the weight of the testimony,” the witness’s “opinion testimony may rest only on common experience.” ( Id. at p. 548 & fn. 5.) We need not decide whether Quenell’s testimony was admitted as an expert opinion or whether it shou ld have been excluded because we conclude that any error in24

its admission was harmless. Fiore argues that Quenell’s opinion “supported the prosecution theory that Fields was shot from left to right while sitting in the front seat , ”
and therefore that Fior e was the one who shot Fields and shot at Officer Noland. 13 But
there was substantial other evidence to support the conclusion that Fiore was responsible
for these shots . The deputies who participated in the chase consistently testified that, except for t he shots fired at Officer Noland, all of the shooting was from the front passenger’s side of the Jeep. This testimony supported the inference that Fields was
located in th e passenger’s position throughout the chase . The weight of the physical
evidence an d expert testimony also established that the bullet that killed Fields was traveling from left to right as it entered Fields’s head , and it was not likely that Fields shot himself by holding a gun to his left temple since he was right

- handed

. This evidenc e suggesting that Fiore killed Fields was strong, and Quenell’s testimony added very little
to it. Quenell merely testified on direct examination that the photograph depicted

“ possible tissue or brain matter and possible bone fragments” on the door ( itali cs added )
and on cross

- examination that she was uncertain of the nature of the bi ological matter and
that it was never tested. Given these factors, we conclude that any purported constitutional error in the admission of Quenell’s opinion about the appeara nce of brain matter and bone fragments was harmless beyond a reasonable doubt ( Chapman v. California ( 1967) 386 U.S. 18, 24) , and it was not reasonably probable that Fiore would have received a more favorable
verdict if the trial court had excluded Quenell ’s testimony on this issue . ( People v.
Watson (1956) 46 Cal.2d 818, 836.)

13 This evidence also supported the co nviction for attempted murder of Officer Nelson, even though the prosecution never argued that Fiore was the one who shot at him. If the jury believed Fiore shot at Officer Noland and did not do so under duress, it would have likely found that Fiore was n ot under duress (and thus was liable as an accomplice) during the attempted murder of Officer Nelson seconds later.25

D

. Insufficient Evidence Supports Fiore’s C onviction for Robbery of Gault. The jury convicted Fiore of one count of robbery of Young and one count of robbery of Gault. Fiore cla ims that there is insufficient evidence to sustain his conviction
for robbing Gault because the stolen marijuana undisputedly did not belong to Gault , and
Gault did not have poss ession of it. The Attorney General contends that Gault had constructive posse ssion of the marijuana because he brokered the deal and thus had a “special relationship” with Young. We conclude that this conviction must be reversed

. To evaluate Fiore’s claim, “ ‘we review the whole record to determine whether

. . . [there is] substa ntial evidence to support the verdict

. . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presu me in support of the judgment the existence of every fact the jury could reasonably have
deduced from the evidence. [Citation.] “Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it i s the exclusive province of the

. . . jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends .” ’ ” ( People v. Manibusan (2013)
58 Cal.4th 40, 87.) To be guilty of robbery, a defendant must ta ke property “from the possession of the victim by means of force or fear.” ( People v. Nguyen (2000) 24 Cal.4th 756, 761; § 211.) “A person who owns property or who exercises direct physical control over it has possession of it, but n either ownership nor physical possession is required to establish the element of possession for the purposes of the robbe ry statute , ” and “constructive possession” is sufficient. ( People v. Scott ( 2009 ) 45 Ca l.4th 743, 749

- 750.)

“ [ A ] person who has the right to control prope rty has constructive possession of it.” ( People v. Scott , supra , 45 Cal.4th at p. 750.) To have constructive possession of property, “the alleged victim of a robbery [must] have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” ( Ibid. ) As a result of this relationship, such a26

victim has “ the right to resist the taking,” in contrast to “those bystanders who have no greater interest in the pr operty than any other member of the general population.” ( Id. at pp. 757

- 758.) These special rel ationships are often employment

- related. ( Id. at pp. 752

- 753 [discussing cases]; see, e.g., People v. McKinnon (2011) 52 Cal.4th 610, 687 [ teacher
had constr

uctive possession of school cafeteria’s cash box ] ; People v. Bradford (2010) 187 Cal.App.4th 1345, 1350 [mall security guards had constructive possession of property in stores they were obligated to protect]; People v. Gilbeaux (2003)
111 Cal.App.4th 515, 523 [janitors who were independent contractors had constructive possession of property in store they cleaned].) But they may be present in other circumstances as well, such as when the victim is the owner’s family member . (S ee, e.g. , People v. Weddles (2 010) 184 Cal.App.4th 1365, 1370 [owner’s brother]; People v.
Gordon (1982) 136 Cal.App.3d 519, 529 [owner’s parents] .)
The re is insufficient evidence that such a relationship exist ed between Young, the seller of the marijuana, and Gault. Gault testified that Young was only an “acquaintance” and that he knew him “just [in] passing.” Gault had never been to Young’s house before
the night in question, and the men had little contact after the robbery

. Gault claimed that
he had not acted as a broker and that he did not expect to earn any commission as a result
of the marijuana deal. Fiore testified that he understood Gault to be “brokering” the deal
and had heard Fields and Gault agree that Fields would pay Gault $100 for every pound of marijuana bough t. F iore and Gault gave different accounts of the degree of control
Gault had over the marijuana. Fiore testified that afte r Young told Fields to “[c]heck

. . . out” the marijuana, Gault handed a bag of marijuana to Fiore , and Gault was the one who
rolled the blunts for the men to smoke . Gault, on the other hand, did not testify that he handled the marijuana and d enied having rolled the blunts. The Attorney General argues that Gault had a special relationship with Young
because Gault introduced Young to Fiel ds, directed Fields and Fiore to Young’s house, helped Fields and Fiore sample the marijuana, “participated in the negotiations over the price for the contraband , ” and “was going to be paid $100 for each pound of marijuana
sold.” But this record reveals t hat if Gault had a s pecial relationship with anyone , it was27

with Fi elds, not Young. Gault introduced Fields to Young at Fields’s request. The only
evidence that Gault w as to be paid for participating in the deal was Fiore’s testimony that
Fields , not You ng, promised to pay Gault for each pound of marijuana purchased. And we find nothing in the record to suggest that G ault was involved in negotiating the sale ’s

terms beyond the fact that he was present while Fields and Young were talking

. Although the ev idence permits an inference that Gault had Young’s permission to handle the marijuana for the purpose of letting Fields and Fiore sample it, Young’s acquiescence to Gault’s momentary control over the property for this limited purpose did not establish
that Gault had any right or duty to resist the property’s taking or that Young expected him to do so. (See People v. Ugalino (2009) 174 Cal.App.4th 1060, 1065 [reversing robbery
conviction where victim had “no obligation to protect ” owner’s marijuana by virtu e of being owner’s roommate and owner “was present to protect his own belonging s and there was no evidence he expected [victim] to assist him in that regard”]; cf. People v. Bekele (1995) 33 Cal.App.4th 1457, 1462 [owner’s friend had constructive possessio n of property because owner gave him “implied authority” to resist its taking by seeking his aid to stop the defendant from stealing it], disapproved on other grounds by People v. Rodriguez (1999) 20 Cal.4th 1, 13

- 14 .) We conclude there is insufficient ev idence that Gault “owned, had access to, [had] control over, or [had] an obligation to protect the [stolen] marijuana” ( Ugalino , at p. 1065), and we therefore reverse Fiore’s conviction for robbery of Gault

. E

. No Cumulative Error Appears.
Fiore contends that the cumulative effect of the errors he identifies requires
reversal of his conviction s , even if none of the errors individually requires reversal. Aside from the lack of evidence to support the conviction for r obbery of Gault, t he only potential err or we have identified is in the admission of Quenell’s te stimony , which does not justify reversal for the reasons given . We therefore reject Fiore’s claim of cumulative

error.28 III. D ISPOSITION
The conviction for robbery of Chris Gault (count eight ) is r eversed. The judgment
is otherwise affirmed.

_________________________ Humes, J.

We concur:

_________________________ Ruvolo, P.J.

_________________________ Reardon, J.

People v. Fiore (A136116)29

Trial Court: Hum boldt County Superior Court
Trial Judge: Honorable Christopher G. Wilson
Counsel for Appellant: Stephen B. Bedrick, under appointment by the First District Appellate Project
Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette , Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Jeffrey M. Laurence, Supervising Deputy Attorney General, Christopher J. Wei, Deputy Attorney General