California Court of Appeal Dec 4, 2013 No. E055531Unpublished
Filed 12/4/13 P. v. Frank CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055531
v. (Super.Ct.No. SWF10002382)
WILBERT FRANK, JR., OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Jerry E. Johnson, Judge.
(Retired judge of the Los Angles Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed.
Raymond M. DiGuiseppe, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, Meagan J.
Beale and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Wilbert Frank, Jr., guilty of deliberate
premeditated murder. (Pen. Code, § 187, subd. (a).)1 In relation to the murder
conviction, the jury found true the enhancement allegation that defendant personally and
In the instant case, defendant would need to show bad faith in relation to the
destruction of the blood sample; defendant has only asserted the blood could have been
subjected to carbon monoxide screening, which may have resulted in the sample having
exculpatory value. Defendant conceded at the trial court that he was not asserting the
deputies acted in bad faith by failing to preserve the sample. Since defendant did not
meet the first step in the process—showing a bad faith loss of material evidence, the
trial court had no reason to consider sanctions. In other words, there needed to be a bad
faith finding before the trial court could properly consider the jury instruction issue.
Since defendant conceded the bad faith issue, the trial court did not err.
Defendant asserts the trial court erred because there is “little question that the
blood sample ‘possessed an exculpatory value.’” Defendant’s argument is not
persuasive because defendant concedes the blood was not tested for carbon monoxide
poisoning. Thus, defendant can only assert the blood could have been subjected to tests,
which may have revealed exculpatory value. As a result, defendant must show bad faith
on the part of the deputies, but defendant conceded the issue at the trial court.
20
Next, defendant contends that, even without a showing of bad faith under
Trombetta, defendant was entitled to a curative instruction due to “the loss of
constitutionally material evidence” resulting in violations of his “rights to due process
and fair trial.” Defendant’s argument is not persuasive because Trombetta is a due
process case. (Trombetta, supra, 467 U.S. at pp. 480-481.) In support of his argument,
defendant cites People v. Melton (1988) 44 Cal.3d 713, 750, which contains a citation to
Trombetta and discusses the law presented in Trombetta. Accordingly, we conclude our
Trombetta analysis would not differ from a due process/fair trial analysis.
C. HEAT OF PASSION JURY INSTRUCTION
1. PROCEDURAL HISTORY
a) CALCRIM No. 522
Defendant requested the trial court instruct the jury with an “imperfect heat of
passion” instruction. The prosecutor asserted defendant was improperly modifying the
provocation instruction to combine imperfect self-defense with heat of passion.
(CALCRIM No. 522.) The prosecutor conceded defendant could have the jury
instructed with the original version of CALCRIM No. 522, but not a modified version
that combined two different theories. The original version of the instruction explains
how provocation may reduce first degree murder to second degree murder or
manslaughter. (CALCRIM No. 522.) The modification would have allowed for a heat
of passion finding based upon a subjective standard, rather than an objective one.
The prosecutor argued there was no evidence the victim verbally or physically
provoked defendant to act rashly on the day of the murder. The prosecutor asserted the
21
victim “was just standing there with a coat,” and the information about Flores meeting
defendant’s daughters was exchanged eight hours prior to the murder so there could not
be a provocation finding.
Defense counsel asserted the jury could find defendant was provoked because
(1) defendant saw Clarke driving to the restaurant, and he was supposed to teach Clarke
how to drive, so that experience was taken from him; (2) the victim “showed no remorse
in regards to teaching Clarke how to drive”; (3) the victim told defendant she would be
introducing Flores to defendant’s daughters; and (4) defendant’s overall life was
stressful with his in-laws moving into the family home, defendant being forced to leave
the family home, defendant living in fear at his rental home, defendant living with very
few supplies in the rental home, and defendant being told his older children did not want
to visit him. Counsel argued all these issues could be connected to the victim and the
victim teaching Clarke how to drive was the last “straw.”
The trial court found that none of the fear, disappointment, frustration, loss, or
stress experienced by defendant constituted provocation, even if they were all
combined. The trial court concluded it would instruct the jury on the lesser included
offense of voluntary manslaughter, but not provocation. (CALCRIM No. 522.)
b) CALCRIM No. 570
Defense counsel moved the trial court to instruct the jury with a modified version
of CALCRIM No. 570, which concerns heat of passion voluntary manslaughter.
Counsel asserted there was problematic burden-shifting language in the original version
of the instruction, which counsel attempted to fix with modifications. The prosecutor
22
asserted it would be inappropriate to change the language of the CALCRIM instruction.
The trial court found defendant was attempting to “stress portions of CALCRIM 570
that [were] not intended to be stressed.” The trial court declined to modify the
instruction.
Defense counsel asserted the same evidence detailed ante, which would support a
finding of provocation, would also support a heat of passion finding. The prosecutor
asserted the victim’s mere presence was insufficient to support a heat of passion finding.
The prosecutor asserted defendant and the victim were civil in making arrangements to
meet and there was nothing indicating the victim said or did anything provocative at the
restaurant parking lot.
The trial court ruled it would instruct the jury on heat of passion manslaughter.
(CALCRIM No. 570.) The trial court commented that the evidence supporting a heat of
passion finding was “extremely weak, but there is enough evidence.”
2. ANALYSIS
Defendant contends the trial court erred by not instructing the jury that “even if
the provocation was insufficient to objectively induce a heat of passion for purposes of
manslaughter, a defendant’s subjective heat of passion response to provocation could
reduce the crime from first to second degree murder by negating the existence of
premeditation and deliberation.”
We review jury instructions de novo. (People v. Jackson (2010) 190 Cal.App.4th
918, 923.) “We determine the correctness of the jury instructions from the entire charge
of the court, not from considering only parts of an instruction or one particular
23
instruction. [Citation.] The absence of an essential element from one instruction may
be cured by another instruction or the instructions taken as a whole. [Citation.]”
Further, in examining the entire charge we assume that jurors are ‘“‘“intelligent persons
and capable of understanding and correlating all jury instructions which are given.”’
[Citation.]” [Citations.]’ [Citation.]” (People v. Smith (2008) 168 Cal.App.4th 7, 13.)
“The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a
formal request. [Citations.]” (People v. Burney (2009) 47 Cal.4th 203, 250.) In People
v. Avila (2009) 46 Cal.4th 680, our Supreme Court concluded a trial court did not err by
failing to instruct the jury that provocation could affect the degree of murder. The
Supreme Court wrote, “‘Although the court did not use the word “provocation” in
regard to the degree of murder, it did instruct on “heat of passion.” It told the jury that
for the killing to be first degree murder, it must not have been committed “under a
sudden heat of passion or other condition precluding the idea of deliberation.”
[Citation.] By specifically referring to heat of passion and generally referring to any
other condition precluding deliberation, the court fully instructed on the law relevant to
the actual evidence.’” (Id. at pp. 707-708.)
In the instant case, the trial court instructed the jury that “defendant acted
deliberately if he carefully weighed the considerations for and against his choice and,
knowing the consequences, decided to kill. The defendant acted with premeditation if
he decided to kill before completing the acts that caused death.” (CALCRIM No. 521.)
24
The court explained that if the prosecution did not prove these elements or the alternate
theory of lying in wait, then the murder would be second degree.
In regard to heat of passion, the trial court informed the jury that it required
defendant to have “acted rashly and under the influence of intense emotion that
obscured his reasoning or judgment.” (CALCRIM No. 570.) The trial court further
explained, “Heat of passion does not require anger, rage, or any specific emotion. It can
be any violent or intense emotion that causes a person to act without due deliberation
and reflection.” (CALCRIM No. 570.) The instruction further set forth the rule that a
heat of passion finding is not supported if a person could have “‘cool[ed] off’ and
regain[ed] his clear reasoning and judgment.” (CALCRIM No. 570.) In CALCRIM
No. 521, the jury was informed, “A decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and premeditated.”
Given the totality of the instructions, the jury was adequately instructed that
subjective factors affecting defendant’s decision-making skills would preclude a first
degree murder verdict, similar to the situation in People v. Avila, supra. From the
instructions, an intelligent juror, correlating the instructions, would understand that
premeditation and deliberation require clear reasoning and judgment—that if the
defendant’s thinking is obscured by emotion, then the premeditation and deliberation
findings would be problematic. Accordingly, when reviewing the instructions as a
whole, we conclude the trial court did not err because the instructions explained the
relevance of a subjective heat of passion response to the jury as it relates to the degrees
of murder.
25
Defendant asserts the foregoing alleged instructional error was further
complicated by the trial court not defining second degree murder for the jury.
Defendant’s argument is not persuasive because the trial court defined murder for the
jury, explained how a killing qualified as first degree murder, and then explained that
“all other murders are of the second degree.” The trial court’s instructions about second
degree murder were reasonable. The instructions set forth the concept that if the
definition of murder was met, but the first degree findings were not supported, then the
murder would be second degree. Accordingly, we find defendant’s argument to be
unpersuasive.
D. RESTITUTION
1. PROCEDURAL HISTORY
Defendant’s probation report reflects that, after the murder, the victim’s and
defendant’s three eldest daughters were residing with an uncle outside of California
while the two youngest children were residing with an aunt in California. The report
further reflects a request by the prosecutor that defendant be ordered to pay $82,583.98
because that amount was “paid out by the victim compensation and government claim
board.” The probation officer recommended defendant “[p]ay restitution of $82,583.98,
plus [an] additional amount to be determined by the Probation Department[ and p]ay
interest on restitution at 10% per annum. [§ 1202.4, subd. (f)(3)(G)].”
26
At defendant’s sentencing hearing, the following exchange took place:
The Court: “There’s also some restitution that’s already been afforded the family
of the victim and it reads $82,583.98. The question I have is does that—I’ll order that
restitution be paid by the defendant.
“[Defense Counsel]: I would ask that it be left in an amount to be determined
because it looks like this is not a final amount, your Honor.
“The Court: No, it doesn’t. But that amount appears to be up to this point at
least per probation’s calculations. And then the defendant is to pay any amount in
addition to that to be determined by probation.”
Later in the hearing, the following discussion took place:
[Prosecutor]: “And, your Honor, just for clarification, it didn’t state this in the
probation officer’s report, the restitution amount listed by the Court, that’s actually
already been paid by the Victim Compensation Government Claims Board so the
restitution should be ordered to be paid to them.
“The Court: To whomever it’s due.
“[Prosecutor]: Right.
“The Court: That will be ordered. I indicated that it is in fact—if it weren’t paid
by the Victim Restitution Fund, it would be paid directly to the named victim.
“[Prosecutor]: Right.
“The Court: But since it’s been paid now, then they owe that back to the Victims
Restitution Fund as a third party.”
27
2. ANALYSIS
Defendant contends the trial court erred by imposing a restitution fine in the
amount of $82,583.98 because the record does not support restitution in that amount.
(Former § 1202.4, subd. (f) [eff. Sept. 27, 2010].) The People assert defendant forfeited
this contention by failing to raise it at the trial court.
A defendant can forfeit a claim concerning a restitution fine by failing to raise
the issue in the trial court. (People v. Nelson (2011) 51 Cal.4th 198, 227; People v.
Gamache (2010) 48 Cal.4th 347, 409.) At the trial court, defendant did not request a
hearing to dispute the amount of the fine (§ 1202.4, subd. (f)(1)), nor did he raise an
objection concerning the lack of evidence submitted in support of the fine (§ 1202.4,
subd. (f)(4)(B)). Given that the restitution issue was not raised below, we conclude
defendant forfeited the issue for appeal.
Defendant asserts he did not forfeit the alleged error for appeal because
substantial evidence issues are an exception to the forfeiture rule. Out of caution, we
will address the merits of defendant’s contention. “‘When the probation report includes
a discussion of the victim’s loss and a recommendation on the amount of restitution, the
defendant must come forward with contrary information to challenge that amount.
[Citation.]’ [Citations.]” (People v. Collins (2003) 111 Cal.App.4th 726, 734, but see
People v. Harvest (2000) 84 Cal.App.4th 641, 653 [a probation report “may satisfy
notice requirements for due process . . . but it cannot take the place of evidence”].)
The probation report reflects the Victim Compensation and Government Claims
Board paid $82,583.98 to the victims. Typically, “[t]he amount of assistance provided
28
by the Restitution Fund shall be established by copies of bills submitted to the
California Victim Compensation and Government Claims Board reflecting the amount
paid by the board” and what services were provided. (§ 1202.4, subd. (f)(4)(B).)
However, as set forth ante, a probation report can be sufficient, if there is not contrary
evidence offered by the defendant. (People v. Collins, supra, 111 Cal.App.4th at p.
734.)
In the instant case, the probation report reflects a recommended restitution
amount of $82,583.98. Defendant did not present any evidence that challenged this
amount. The trial court could reasonably infer that there were expenses associated with
the children moving given the evidence that five children were left without parents to
care for them, three of the children moved out of state to live with a relative and two of
the children moved within the state to live with a different relative.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
HOLLENHORST Acting P. J.
McKINSTER J.
29
AI Brief
AI-generated · verify before citing
Holding. The trial court did not abuse its discretion in excluding expert testimony regarding carbon monoxide poisoning due to a lack of evidentiary foundation, nor did it err in denying a motion for sanctions regarding the failure to preserve blood samples.
Issues
Did the trial court err by excluding expert testimony regarding carbon monoxide poisoning?
Did the trial court err by failing to instruct the jury on the prosecution's failure to preserve blood samples?
Did the trial court err by failing to instruct the jury on provocation and heat of passion?
Did the trial court err in the amount of restitution imposed?
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The trial court’s decision was reasonable because the evidence presented at trial did not support an inference that defendant may have been suffering from carbon monoxide poisoning at the time of the murder.”