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Name: People v. Fiore
Case #: A136116
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 07/16/2014

Trial court properly did not instruct the jury that duress may be a defense to felony murder. Fiore drove his friend, Fields, to Humboldt County so Fields could buy marijuana. Fields stole the marijuana at gunpoint, after which Fiore drove him away in Fiore’s Jeep. During a police chase that followed, multiple shots were fired at police from the Jeep; officers did not return fire. The pursuit ended when the Jeep crashed. Fields was found dead with a gunshot wound. Fiore survived, with a self-inflicted gunshot wound to the head. A jury convicted Fiore of the second degree murder of Fields with a gun enhancement, two counts of attempted murder with gun enhancements, and two counts of first degree robbery; they hung on other counts. Fiore was sentenced to 68 years and eight months to life, plus three additional life sentences. On appeal, he argued the trial court erred by not instructing the jury that duress is a defense to felony murder, while instructing that duress is a defense to robbery (CALCRIM No. 3402). Held: Affirmed. The Court of Appeal found that the issue was not forfeited despite the lack of objection. However, it found no error. Duress is generally not a defense to murder, though it can provide a defense to felony murder by negating the underlying felony. Here, the jury was properly instructed that to convict Fiore of felony murder, it had to find that he committed robbery. The jury was also instructed that duress was a defense to robbery. It must be presumed that the jury would not have found Fiore guilty of robbery if they believed he had participated under duress.

There was insufficient evidence of a robbery of the marijuana seller’s friend, who was present during the sale, but had no control over the marijuana. Fiore was convicted of robbing Young, the marijuana seller, and Gault, a friend of Young, who was present at the time of the sale. Fiore claimed there was insufficient evidence to sustain the conviction for robbery of Gault because the marijuana did not belong to him, nor did he possess it. The Attorney General argued that Gault had constructive possession of the marijuana because he brokered the deal and thus had a special relationship with Young. Held: Conviction for robbery of Gault reversed. To have constructive possession of property, an alleged robbery victim 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. Here, there was insufficient evidence of a special relationship between Young and Gault. Although Gault introduced Fields to Young, he was only an acquaintance when the transaction took place. Gault denied brokering the marijuana deal, and there was no evidence that he was involved in negotiating the sale’s terms. Gault’s momentary control of the marijuana to allow Fields and Fiore to sample it did not establish that Gault had any right or duty to resist the property’s taking. As a result, there was insufficient evidence that Gault had constructive possession of the marijuana.