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The People v. Cole Allen Wilkins

January 7, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
COLE ALLEN WILKINS, DEFENDANT AND APPELLANT.



Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed. (Super. Ct. No. 06NF2339)

The opinion of the court was delivered by: Moore, Acting P. J.

CERTIFIED FOR PUBLICATION

OPINION

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).)*fn1

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 ...


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