PEOPLE v. WILKINS











Filed 1/7/11






CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, v. COLE ALLEN WILKINS, Defendant and Appellant.

G040716 (Super. Ct. No. 06NF2339) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Sharon M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Teresa Torreblanca and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
* * *


It has long been recognized in this state that “[t]he purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit. [Citations.]” (People v. Washington (1965) 62 Cal.2d 777, 781, italics added.) Defendant committed a burglary of a residence under construction before workers arrived to begin their day. He loaded the back of his pickup truck with numerous boxed appliances and fixtures. He stuffed the cab of the truck to the windows with smaller items. In his haste to leave the scene unnoticed, he left the tailgate on the truck down and did not tie down the loot loaded into the bed of the truck despite the fact that he had ties in his truck. Sixty miles later on his drive home where he would unload the loot, the stove defendant stole fell off the back of his truck, resulting in the victim’s death. The jury convicted defendant of first degree murder under the felony-murder rule. He contends, inter alia, that the evidence does not support his conviction and that the court erred when it refused to instruct the jury that a burglary is complete upon the perpetrator reaching a place of temporary safety.
Although defendant was, by all accounts, driving normally and his crime had not yet been discovered, defendant committed the acts that resulted in the death while he was at the scene of, and in the process of committing, the burglary. The acts that caused the homicide — the failure to tie down the load of stolen loot and raise the truck’s tailgate — occurred at the scene of the burglary, not 60 miles later when part of the unsecured load fell off the back of the defendant’s truck as he drove to where he could unload and hide the haul. As a result, it was not unreasonable for the jury to conclude the homicide and the burglary were part of one continuous transaction, inasmuch as defendant was in flight from the scene with his license plates secreted.
We also reject defendant’s argument that the trial court erred in refusing his request to instruct the jury pursuant to CALCRIM No. 3261 [burglary complete upon the burglar reaching a place of temporary safety]. The Supreme Court has held the instruction on the “continuous-transaction” doctrine is sufficient to inform the jury on the duration of a felony for purposes of the felony-murder rule and that the escape rule, which terminates a felony at the point the perpetrator reaches a place of temporary safety, defines the scope of an underlying felony for certain ancillary purposes and not for felony-murder purposes. (People v. Cavitt (2004) 33 Cal.4th 187, 208 (Cavitt).)[1]
Lastly, we address defendant’s argument that the 25 years to life sentence imposed in this matter is cruel and unusual. Given defendant’s record as set forth in a nearly one-inch thick probation report and described by the seasoned trial judge as “chilling,” as well as the fact that the jury found defendant guilty of first degree murder, we reject this argument as well.
I
FACTS
Appliances at the Work Site
Defendant lived in Long Beach with Nancy Blake. On one day of the week before July 4, 2006, and one day of the week after, he worked at a home construction site in Menifee, a city in Riverside County. The homeowner had a delivery of major appliances and other items purchased from Home Depot on June 28. Defendant’s cell phone records showed he was in the area of the Menifee jobsite on the delivery date. The delivery included a refrigerator, a dishwasher, a stove, a range hood, a microwave and a sink. It also included light fixtures, ceiling fans, door locks and door handles. Most of the items were stored in the kitchen area and some were in the garage.
At the end of the work day on July 6, all of the items were still in the residence when the workers locked the premises. While the owner was having breakfast the next morning, he received a call from the carpenter working at the house telling him all of his purchases were missing. He called the police. Defendant’s cell phone records showed he was in the area of the Menifee construction site during the early morning of July 7.

Defendant, Trivich, and Telephone Calls
In September 2005, sometime after their romantic relationship ended, Kathleen Trivich and defendant entered into a business relationship to buy a piece of property in Palm Springs and build on it. Trivich paid for the land and was to pay for the materials to build a house on the property. Defendant said his contribution was to “basically oversee the project.” Trivich also bought a Ford F-250 truck for defendant in 2006. The truck was to be used to haul building materials. As of July 2006, no construction “whatsoever” had been completed.
On July 6, 2006, defendant left his home in Long Beach about “8:30 or 9:00” p.m. He was driving his Ford F-250 truck. Trivich was at a speech and acting class at 8:00 p.m. that night, until just after midnight. Sometime thereafter she checked her cell phone and found a message from defendant. He wanted gas money. She called defendant back on his cell phone. She agreed to give him money. She drove to Long Beach, where she put $100 or $200 in an envelope and slid it under the door to his house.
After driving to Long Beach, where Trivich went to an ATM and withdrew the money she left for defendant at his house, she again spoke to defendant on the phone. She told him she dropped the money off at his house, and defendant said he had some news for her. He said, “I’ve got a surprise for you. I got some really big things for the kitchen.” Trivich asked him what he had, but he did not tell her. At the time of this call, defendant’s cell phone was using a cell tower along the 91 Freeway.



The Freeway
Calls to the California Highway Patrol began at 5:01 a.m. on July 7, 2006. The callers said there were items in one of the lanes of the westbound 91 Freeway, right before “Kraemer and Glassell in Anaheim.” One said he ran into a big box, and that he saw someone else run into it, too. About four minutes after the first call, someone reported that a tanker truck rolled over.
At trial, Danny Lay testified he was westbound on the 91 Freeway somewhere around Kraemer right before a freeway interchange at about 5:00 o’clock in the morning of July 7, 2006. He was in the second lane to the right of the carpool lane. A Ford pickup without a rear license plate was in front of him. There were “a lot of boxes in the back of the truck.” When Lay was 25 to 50 yards behind the truck just east of Kraemer, “a large box fell from the right corner of the truck into the freeway.” Lay had a car to his left and a car to his right, so he hit his brakes and tried to stop. He hit the box.
Lay proceeded after the pickup. He turned on his flashing lights, turned his bright lights on and off repeatedly and hit his horn. The truck slowed down and both vehicles pulled off the freeway. Lay pulled up next to the passenger side of the pickup, but there were so many boxes blocking the window, he couldn’t see the driver. He thinks the driver looked over at him, saw him and then “accelerated away.” Lay kept flashing his lights and honking his horn, and was finally able to pull up alongside the pickup again. The driver of the pickup stopped and threatened Lay, using a vulgarity.
Lay identified defendant as the person who was driving the pickup truck. Defendant and Lay got out of their vehicles, and defendant said he was “going to kick [Lay’s] ass.” Lay said, “bring it on, but first something fell from your truck.” Defendant looked in the back of the pickup and remarked, “Oh, my God. It’s a thousand-dollar stove.” Lay saw the tailgate on the truck was down. There were no ropes or tie-downs. He also saw various sized boxes. He remembered seeing ceiling fans and a refrigerator. He asked defendant for identification. Defendant went to the glove box and appeared to look through it. He then said he must have forgotten his license, and that a friend, Kathleen Trivich, owned the truck. He identified himself as Michael Wilkins.
Charles Thomas was also on the freeway that morning, driving behind a white truck. The white truck made a “pretty severe” lane change. Thomas said “as soon as he swerved and I kind of got startled and slowed down, and then all of a sudden, I saw a white box, my headlights shined on this white box.” He explained it was dark out and he wanted to move, but “there was cars and a lot of traffic.” He was asked if he hit the box, and responded: “It was so fast. Yeah, I hit it. It was so fast. I didn’t slam on my brakes, there was nothing I could do.” He said he called 911, and that another vehicle hit the box, too, and they both pulled over to the side of the road. The other vehicle suffered a flat tire, and “had a hard time limping off.”
Donald Wade was driving behind a big rig truck that morning, and “saw an automobile coming across out of the left lanes across the traffic about, looked like about 90-degree angle and he hit the truck in front of me.”
James Davies, also on the freeway at the time, saw a truck as it hit the K-rail. “When I moved forward in traffic about 50 yards or so, I did see an appliance sitting in the lane.” Davies pulled over to the side of the road, called 911 and spoke with a motorcycle officer who arrived at the scene.
Thomas Hipsher was driving “a big truck, tractor with two trailers” carrying a full load of powdered cement that morning as he drove along “the slow lane” at 55 miles per hour. He felt an impact and lost control of his vehicle. He suffered bruised ribs and “a lot of cuts and bruises.” He never saw the car that struck him.

The Death
California Highway Patrol Officer John Heckenkemper responded to the scene shortly after 5:00 a.m. on July 7. He described the scene: “Upon my arrival, there was — traffic was obviously in disarray. There was a stove in the middle of the lanes and beyond that, just west of the stove, there was an accident involving a big rig that had overturned.”
Captain paramedic John Mark of Anaheim described what he saw: “Upon our arrival, we found a large semi-truck commodity hauler on its side off the shoulder of freeway with the cab extending off the shoulder. And we recognized that there was a vehicle actually trapped between the two trailers.” They could not get to the car underneath the truck until the truck was removed. Then “it took a fair amount of time to extricate the victim from the vehicle.” The man inside was deceased.
The coroner testified she conducted an autopsy of David Piquette. She described numerous injuries on the body, and said the cause of death was “positional asphyxia. That caused — due to compression of neck and chest, positional asphyxia.”
An accident reconstructionist testified “Piquette swerved in an area just shy of where the stove was . . . to hit the big rig where we know he did.” His investigation showed the driver of the big rig “steered to the right at about the same time that a driver probably saw . . . Piquette coming from the left, and then that would be a completely natural human reaction.” He said that in order to avoid hitting the stove, given the conditions, a driver in Piquette’s position would have had to have been driving at 28 miles per hour, and the speed limit in the area was 65 miles per hour.

Afterward
Blake received a telephone call from defendant “around” 5:00 or 5:15 on the morning of July 7, 2006. He said he was coming home, and arrived at 5:30 or 6:00 a.m. Defendant said he needed help unloading some items. When she went outside, she saw in the truck “a lot of boxes and what looked like to be . . . a refrigerator laying down on the bed with [a] box on top. Everything was boxed.” Boxes were also piled “to the window” inside the cab of the truck.
Later that day, the two went to Palm Springs where defendant owned some property. He and Trivich planned on building a house on the property. On the evening of July 7, defendant telephoned Sean Doherty and asked if “it would be okay for him to store some appliances in [his] garage.” The next day, July 8, Trivich and Doherty were in Palm Springs, where Doherty owns a home.
On July 8, defendant and Doherty spoke when they were alone. Defendant told Doherty, “I’m in trouble. Something’s happened. There has been an accident.” Defendant said somebody was killed. Doherty was told “something had fallen off [defendant’s] truck, a stove had fallen off the truck, and somebody had swerved, or hit it and swerved and was killed.”
Blake recalled that at some point on July 8, there was a conversation about what had happened on the 91 Freeway. Blake said defendant “suggested I don’t speak to anyone about the accident until he could find a lawyer.”
Doherty said that “maybe 8:00 or 9:00” on the evening of July 8, he, Blake, Trivich and defendant were together. Defendant was attempting to hide the fact that he had been the driver. Doherty was asked whether he heard defendant make a statement to Trivich regarding who was driving the truck. Doherty responded: “That they were — were trying to find some way to make it look like she was driving the truck versus him.” He said he heard defendant “trying to convince” Trivich to lie and say she was driving the truck when the incident happened.
At some later time, Doherty took “investigators from the highway patrol” into his garage. They looked at the various items, which included a refrigerator, a dishwasher and a microwave. None of those items had been in his garage before he gave defendant permission to store things there.
California Highway Patrol Officer Joseph Kenneth Morrison drove to the construction. The distance from the construction site to the place where Piquette was killed is a little over 60 miles. The distance from where Lay said he first saw the truck carrying the appliances to the collision scene is approximately 5.6 miles.

Defendant’s Testimony
Defendant testified in his own defense. He explained his involvement with Trivich with respect to Palm Springs: “I approached her in the late part of 2005, I don’t know exactly what month it was, but basically at that time, you know, the real estate market was at its peak, things were going good. I was living in Palm Springs part time. Previous to this, Sean who testified, had mentioned that he had purchased this house for a certain amount and now his house is valued at this. I saw this as a good opportunity to possibly, you know, buy some property, build a house, sell it and, you know, hopefully make a profit from it.” He added: “because she agreed to do the financial backing, I had a deal that was to basically oversee the project and make sure the house got built in a timely manner and made sure everything went according to plan.”
With regard to the appliances, defendant explained that on July 6, 2006, he had oral surgery, and then believed that night he “left [his] house slightly after 10:00, 10:15, 10:20, somewhere in that timeframe” and “went to Palm Springs.” Before getting to Palm Springs, he stopped at the Home Depot “over there off of the 91 and Weir Canyon I believe it is.” He added: “When I got there, I pulled into the parking lot. Rick^[[2]] was there, he was with another fellow. I did not recognize him. He had a truck load full of stuff. We talked briefly. He asked me if I was interested in the stuff, I told him I was, however, I told him I wasn’t carrying that much cash on me at that time. My intention at that time was to buy the fridge and possibly the stove depending on how much he was going to charge me. [¶] He asked me if I was interested in the stuff and I said, yes, definitely. He asked me if there was anyway I can come up with the money. I told [him], yes, if he could give me another hour or so, I can go back home, retrieve some money and meet him at a later time.” They agreed to a price of $1,500 for everything.
He admitted he suspected the merchandise may have been stolen, “almost too good to be true.” He said: “I needed the stuff for the house to be built in Palm Springs.”
Defendant said he had some tie-downs on his truck but the boxes were stacked on top of the tie-downs and he couldn’t get to them. He weighed his options, “jumped on the tailgate, I moved the stuff around and, you know, honestly felt at that time with no traffic or anything like that and just the weight of the items, I didn’t feel that there was a danger of anything falling off my truck. We were talking about a 185-pound stove and a 200-something-pound fridge.”
On cross-examination, he admitted that in 1991 he twice stole property belonging to others with the intent to permanently deprive the owners of their property. He confirmed he had been to the Menifee jobsite twice prior to this incident.
He said he first met Rick at a jobsite “in the Temecula or Menifee area.” The second time he saw Rick was in a parking lot in Temecula, when defendant was on his way to a restaurant. Rick took defendant to the back of his truck where there were “stacks and stacks of tile. I looked at them, and he had two different kinds. I asked him how much. He gave me a price. I thought the price was decent.” Defendant said he purchased the tiles from Rick.
The third time defendant saw Rick was when he was walking into a 24 Hour Fitness in Temecula on July 5, 2006. Rick flagged him over to his truck. When the prosecutor reminded defendant he had already said the incident at the Home Depot was the third time, defendant said, “I’m getting confused a little bit.” Defendant went on to explain that at the time he saw Rick by the 24 Hour Fitness, Rick told him he had a fridge and a stove for $500. They made a deal, even though Rick did not have the appliances with him. When the prosecutor asked him whether or not he testified differently on direct, defendant accused the prosecutor of confusing him. Defendant said he and Rick agreed to meet the following evening at 11:00 p.m. in the Home Depot parking lot in Yorba Linda.
Defendant admitted to the prosecutor that his plan was to take all of the stolen merchandise to Palm Springs and unload it himself at Doherty’s house. He also admitted that he knew he ought to have tied them down.
Defendant then told the jury that after he made his purchases in the Home Depot parking lot, he drove all the way to Palm Springs to Doherty’s house, arriving at about 2:00 a.m., and realized he could not lift the items by himself. So he turned around to drive to Long Beach, starting the journey “a little after” 3:00 a.m., without even unloading the smaller items that were in the cab of the truck, or taking the time to tie anything down. He said he left the tailgate down.
Defendant said he drove toward Blake’s house in the fast lane. He admitted he lied to Lay, gave him a false name and gave him a false contact phone number. He said he lied because he “wasn’t covered [under] the insurance policy.” He admitted the license plates and registration for the truck he was driving were in the passenger side door, even though he told Lay he did not have them. Later he added another reason he lied was because his license had been suspended.
As the prosecutor questioned defendant further, he testified that when he arrived at Blake’s home, he was able to unload the items himself. Blake helped him with the smaller items, but not with the larger ones. He said he used a dolly.
II
DISCUSSION
A. Impeachment with Prior Juvenile Adjudications
Prior to trial, defendant moved to exclude evidence of his prior juvenile adjudications for burglary in 1988 and 1990, for kidnapping in 1992, and for rape in 1993, as well as his adult conviction for failing to register as a sex offender. He asserted this evidence was not admissible to impeach his testimony because the failure to register as a sex offender is not a crime of moral turpitude and juvenile adjudications are not convictions. The prosecutor stated his intention to introduce evidence of the conduct underlying each of the juvenile adjudications, but not to introduce evidence of the adult conviction.
The court exercised its discretion and excluded any reference to defendant’s failure to register as a sex offender, the rape adjudication that presumably gave rise to the registration requirement, or the conduct underlying the rape adjudication. It also excluded any reference to the burglaries due to potential prejudice given the importance of the burglary in the present case. The court held, however, that defendant could be asked whether he committed thefts on August 21, 1991, and November 20, 1991. When asked, defendant admitted he committed a theft on each occasion.
Impeachment based upon criminal conduct is not limited to introduction of a prior felony conviction. A defendant may be impeached with past criminal conduct involving moral turpitude. (People v. Harris (2005) 37 Cal.4th 310, 337.) Admission of such evidence is “subject, of course, to the restrictions imposed under Evidence Code section 352 and other applicable evidentiary limitations.” (People v. Lee (1994) 28 Cal.App.4th 1724, 1740.) The trial court exercises broad discretion in determining the admissibility of evidence and we review the court’s ruling for an abuse of discretion. (People v. Harris, supra, 37 Cal.4th at p. 337.) “‘[D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]’ [Citation.]” (People v. Green (1995) 34 Cal.App.4th 165, 182-183.)
In exercising its discretion, the trial court should take into account factors similar to those that must be considered when the admissibility of a prior conviction is under consideration: “(1) whether the [conduct] reflects adversely on an individual’s honesty or veracity; (2) the nearness or remoteness in time of [the conduct]; (3) whether the conduct is for the same or substantially similar conduct to the charged offense; and (4) what the effect will be if the defendant does not testify out of fear of being prejudiced because of the impeachment by prior convictions. [Citation.]” (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) Defendant does not contend the conduct fails to reflect adversely upon his veracity. It does. (People v. Gurule (2002) 28 Cal.4th 557, 608 [“theft crimes necessarily involve an element of deceit”].) The third above listed factor is not an issue. Defendant testified. The court could have permitted the prosecution to introduce evidence that defendant committed burglaries, but did not do so because of the similarity with the present alleged conduct, instead limiting impeachment to generic thefts. The only factor at issue is remoteness.
The conduct with which defendant was impeached occurred in 1991. The charged offense occurred in 2006, 15 years later. The prior conduct could be characterized as remote, but this remoteness does not automatically render such evidence inadmissible for impeachment purposes. (Cf. People v. Mendoza, supra, 78 Cal.App.4th at p. 925 [“convictions remote in time are not automatically inadmissible for impeachment purposes”].) In People v. Green, supra, 34 Cal.App.4th 165, the court found a defendant’s 20-year old prior conviction was not inadmissible due to remoteness because the defendant had not led a blameless life in the interim. (Id. at p. 183.) Neither has defendant. After his discharge from the California Youth Authority on the August 1991 burglary that included his rape of a woman, he suffered a felony conviction as an adult for failing to register as a sex offender. The court considered the remoteness of the prior conduct and defendant’s subsequent actions. Accordingly, we find the trial court did not err in permitting defendant to be impeached with the fact that he committed two prior thefts. We do not here list defendant’s other subsequent transgressions as they were not made known to the court prior to the court’s ruling.



B. Jury Instructions
Defendant argues the trial court erred when it instructed the jury on aiding and abetting and on the effect of recent possession of stolen property. He also contends the court erred when it refused his requested instruction on the escape rule. We address each argument in turn.

1. Aiding and Abetting
The court instructed the jury on aiding and abetting pursuant to CALCRIM Nos. 400 and 401. Defendant argues there was no evidence in the record to support the instructions.
“Trial courts only have a sua sponte duty to instruct on ‘the general principles of law relevant to and governing the case.’ [Citation.] ‘That obligation includes instructions on all of the elements of a charged offense’ [citation], and on recognized ‘defenses . . . and on the relationship of these defenses to the elements of the charged offense.’ [Citations.]” (People v. Rubalcava (2000) 23 Cal.4th 322, 333-334.)
Here the evidence supported jury instructions on an alternative liability theory of aiding and abetting. Besides defendant’s story about meeting someone named Rick and another man in Yorba Linda, defense counsel also obliquely raised the issue at trial. While cross-examining a highway patrol investigator, counsel questioned about the number of people required to load the items found at Doherty’s home, and elicited the fact that lifting was done by more than one person. Additionally, there was evidence law enforcement found a fingerprint outside a laundry room window at the burglarized residence. Todd Gorman, who locked up the residence at 7:30 or 8:00 p.m. on July 6, 2006, testified the laundry room window did not latch properly. Gorman showed a highway patrol investigator the laundry room window because he thought the burglar probably gained entry through the window. A latent fingerprint was lifted from outside the window. Defense counsel attempted to demonstrate on cross-examination of the investigator that the print was not defendant’s. Although objections to his questions were sustained, defendant was in a position to argue the burglar was someone other than defendant because if the fingerprint was his, the prosecution would have introduced that evidence. Thus, there was evidence from which a jury could have inferred defendant aided and abetted another in committing the burglary.

2. Recent Possession of Stolen Property
Defendant next contends “the trial court prejudicially erred and denied [him] due process of law when it instructed the jury that they could find [him] guilty of burglary on the basis of evidence that did not rationally support an inference that he was guilty of that crime.” The court instructed the jury: “If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not find the defendant committed the crime of burglary based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed burglary. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of burglary. [¶] Remember that you may not find that the defendant committed any crime unless you are convinced that each fact essential to the conclusion that the defendant committed that crime has been proved beyond a reasonable doubt.”
An inference of guilt may be drawn from unexplained possession of stolen property. (Barnes v. United States (1973) 412 U.S. 837, 843.) “Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt. [Citations.]” (People v. McFarland (1962) 58 Cal.2d 748, 754.) “As long as the corroborating evidence together with the conscious possession could naturally and reasonably support an inference of guilt, and that inference is sufficient to sustain a verdict beyond a reasonable doubt, we discern nothing that lessens the prosecution’s burden of proof or implicates a defendant’s right to due process.” (People v. Williams (2000) 79 Cal.App.4th 1157, 1173.)
Here there was substantial corroborating evidence. Defendant worked at a construction site near the burglarized house. His cell phone records show he was in the area at the time the merchandise was delivered to the residence and at the time of the burglary. The night the appliances were stolen, he called Trivich and told her he “got some really big things for the kitchen.” There was also evidence from which an inference could be drawn that he was in a hurry to get home with the stolen items in that he did not take the time to secure them on his truck. Plus, he testified he “needed the stuff for the house to be built in Palm Springs.”
Defendant testfied he met with Rick in Temecula on July 5, at approximately 4:15 p.m., and arranged to buy a refrigerator and stove from Rick. They agreed upon a price of $500. This purported meeting took place before the burglary. There is no evidence Rick ever worked on at the burglarized house or knew of the appliances and fixtures it contained.
We note the last paragraph of the instruction cautions the jury to “[r]emember that you may not find that the defendant committed any crime unless you are convinced that each fact essential to the conclusion that the defendant committed that crime has been proved beyond a reasonable doubt.” Nothing in this record implicates defendant’s constitutional rights, lessened the prosecution’s burden or permitted an inference of guilt without a rational basis. The trial court did not err when it instructed the jury on recent possession of stolen property.



TO BE CONTINUED AS PART II….



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