People v. Frans CA2/4

Filed 10/9/24 P. v. Frans CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B332532

Plaintiff and Respondent, Los Angeles County Super. Ct. No. MA004251 v.

DAVID WAYNE FRANS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Daviann L. Mitchell, Judge. Reversed and remanded with instructions. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

In 1993, defendant and appellant David Wayne Frans pled guilty to second degree murder. The trial court sentenced him to 15 years to life in state prison. In 2019, Frans filed a petition for recall and resentencing under former Penal Code section 1170.95.1 In 2020, the trial court denied the petition without issuing an order to show cause. On appeal, a different panel of this court reversed the order denying relief and remanded the matter to the trial court for an evidentiary hearing under section 1172.6, subdivision (d)(3). (People v. Frans (Oct. 29, 2021, B307967) (Frans I) [nonpub. opn.].) On remand, the trial court appointed counsel for Frans. The prosecution filed a brief arguing Frans was guilty of murder under current law. In its brief, the prosecution relied on testimony adduced at co-defendant James Tindell’s preliminary hearing, which the prosecution asserted proved beyond a reasonable doubt Frans remains guilty of murder under current law. Relying on facts contained in co-defendant Tindell’s preliminary hearing transcript, the trial court denied Frans relief, concluding the prosecution had proven beyond a reasonable doubt Frans was guilty of murder under current law. Frans timely appealed. He argues Tindell’s preliminary hearing transcript was inadmissible hearsay. That transcript, however, is not included in the appellate record in this case.