People v. Hillman CA5

Filed 1/22/24 P. v. Hillman 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F085401 Plaintiff and Respondent, (Super. Ct. No. BF165130A) v.

FRANK JACOB HILLMAN, OPINION Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo- Appellant Frank Jacob Hillman was charged by information of first degree murder of Shawn Bivens (Pen. Code, § 187, subd. (a)). Following a jury trial, the jury found

appellant guilty of the lesser-included offense of second degree murder. Appellant was sentenced to a prison term of 15 years to life. On appeal, appellant contends the judgment must be reversed because the trial court erred (1) by admitting evidence of prior uncharged misconduct under Evidence Code1 section 1101, subdivision (b), and (2) by failing to instruct the jury on the lesser- included offense of involuntary manslaughter. Finding no error as to the first claim, and finding the second claim forfeited, we affirm. FACTS Prosecution Case Charged Conduct On August 7, 2016, appellant was parked in his vehicle at a motel/housing complex. Bivens approached appellant, apparently asked him for money, and the two began arguing. Appellant started to drive away, and Bivens threw a wrench at appellant’s car. Appellant turned his vehicle around, drove towards Bivens, and struck him with the vehicle. The impact killed Bivens. Surveillance footage of the incident was played for the jury. Appellant was observed by a neighbor having trouble getting the car into gear after striking Bivens and then driving away from the scene. Bivens was found by police wedged against a chain link fence. After the incident, appellant went home to his girlfriend, Amanda Reed, and appeared “a little shook up.” Appellant told Reed he got into a fight with someone and hit him with the car. Reed told appellant they needed to return to the scene, which was within walking distance from their residence, and on the way, appellant was emotional and crying and said it was an accident. Reed told police appellant reported he was just trying “to scare” Bivens.