Ct.App. 4/3 G040716 Super. Ct. No. 06NF2339 Court: Superior County: Orange Judge: Richard F. Toohey
The opinion of the court was delivered by: Cantil-sakauye, C. J.
Defendant Cole Allen Wilkins was convicted of first degree murder under a felony-murder theory that the victim was killed during the commission of a burglary. The evidence at trial established that defendant burglarized a house under construction and loaded some large household appliances onto the back of a pickup truck. Sometime later, as he was driving on a freeway, an unsecured stove stolen in the burglary fell off his truck. Another driver swerved to avoid the stove, crashed into a large truck, and was killed. The trial court instructed the jury that in order for the felony-murder rule to apply, the burglary and the act causing the death must be part of one "continuous transaction." (See CALCRIM No. 549.) It refused defendant's request that the jury be instructed that, for purposes of felony murder, the felony continues only until the perpetrator has reached a place of temporary safety. (See CALCRIM No. 3261.) The Court of Appeal found no error in the trial court's refusal to instruct the jury on the so-called "escape rule" and affirmed.
We conclude that it was error to refuse the instruction on the escape rule and that the error requires reversal of defendant's conviction.
In 2005, defendant entered into an arrangement with a former girlfriend, Kathleen Trivich, under which she purchased a piece of property in Palm Springs and defendant, as co-owner, was to oversee the construction of a house on that property. Trivich also purchased a truck for defendant's use, but the title remained in her name. Defendant lived in Long Beach with his girlfriend Nancy Blake.
In 2006, Dennis Kane was building a home in Menifee, a city in Riverside County located roughly between Long Beach and Palm Springs. Kane had purchased a large number of appliances and other items for the house, including a stove, refrigerator, dishwasher, microwave, light fixtures, ceiling fans, door locks, and a sink. These items were last seen in the house about 8:00 p.m. on the evening of Thursday, July 6, 2006, when Kane's brother-in-law locked up the house.
Trivich testified at trial that on Friday, July 7, 2006, she twice spoke to defendant on the phone. The first time, at 12:45 a.m., he told her that he "got some big items for the kitchen." He did not tell her exactly what the items were. The second time, at 1:12 a.m., he told her that he was on his way to Palm Springs.
Shortly before 5:00 a.m. on Friday, July 7, 2006, defendant was driving Trivich's pickup truck westbound on "the 91 freeway" just east of the Kraemer Boulevard exit in Anaheim. He was travelling about 60 to 65 miles per hour, heading in the direction of his home in Long Beach. He was about 62 miles northwest of the Kane home in Menifee. The bed and cab of the pickup truck were loaded with appliances that had been stolen from the Kane home. The tailgate of defendant's truck was down and none of the items in the bed of the truck were tied down.
A stove fell off defendant's truck onto the 91 freeway. A driver behind defendant's truck, Danny Lay, struck the stove with his car. Lay attempted to get defendant to pull over by flashing his lights and honking his horn. Defendant slowed down and pulled over, but then accelerated again. Lay pulled up next to defendant's truck, rolled down the window, and told defendant to get off the freeway. Defendant pulled over at the next exit and stopped. He got out of the truck and threatened Lay, but when Lay told him that something had fallen off his truck, defendant exclaimed, "Oh my God, it's a thousand-dollar stove."
Defendant falsely told Lay that his name was Michael Wilkins. He gave Lay the name of the registered owner of the truck, Kathleen Trivich, but gave him several false telephone numbers. Defendant then continued on to his home in Long Beach. In the meantime, the stove was still on the four-lane 91 freeway, in either the fast lane or the lane just to the right of it. At 5:00 a.m., David Piquette, driving his car in the fast lane, suddenly swerved to the right, apparently to avoid hitting the stove. His car crossed the middle lanes and struck a big rig truck that was travelling in the far right lane. Piquette died.
When defendant arrived home in Long Beach about 5:30 or 6:00 a.m. on Friday, July 7, 2006, he and his girlfriend, Nancy Blake, moved some of the stolen items into Blake's trailer. The next day, he and Blake dropped the trailer off for repairs in Riverside, and drove the truck with the remaining stolen items to the home of defendant's friend, Sean Doherty, in Palm Springs. They used the tiedowns that were kept in the pockets of the backseat of the truck to secure the load in the truck bed. Defendant stored the remaining items in Doherty's garage.
That same Friday morning, between 7:00 and 7:30 a.m., Kane received a telephone call advising him that the appliances were missing from his house in Menifee, and reported the matter to the police. The police subsequently recovered the items from Nancy Blake's trailer and Sean Doherty's garage, and arrested defendant.
To trace defendant's whereabouts, cell phone records were used. Cell phone company records indicated, in relevant part, that defendant made or received calls on his cell phone at 10:13 p.m. on Thursday night, July 6, 2006, and at 12:45 a.m., 1:12 a.m., and 4:30 a.m. on Friday morning, July 7, 2006. These records showed which cell tower transmitted each call. Normally, a cell phone call is transmitted through the closest tower, which would be located between two and 10 miles away from the caller's location. Thus, defendant's location at the time of the calls must have been within a few miles of the cell tower that transmitted each call. The 10:13 p.m. call was transmitted through a tower close to defendant's home in Long Beach. The 12:45 a.m. call was transmitted through a tower located near the 91 freeway, east of Long Beach. The 1:12 a.m. call was transmitted through a tower approximately 10 miles farther east. The 4:30 a.m. phone call was transmitted through a tower located near Riverside, and near the intersection of the 91 freeway and "the 215 freeway." The Riverside tower was about 31 miles north of the scene of the burglary in Menifee, and 31 miles east of the location where the accident would occur a half-hour later.
There was, however, no direct evidence of when the burglary took place. The prosecution's theory was that when the cell phone calls were made to Trivich at 12:45 a.m. and 1:12 a.m., defendant was driving eastbound on the 91 freeway, en route from his home in Long Beach to the Kane home in Menifee. After Trivich's truck was loaded with the appliances, under the prosecution's theory, at about 4:00 a.m. defendant got on the 215 freeway -- which was the closest freeway to the Kane home -- and drove north, placing him about 30 miles from Menifee at the time of the ...