21 Cal. App. 5th 881
Cal. Ct. App. 5th2018Background
- Franklin got into a heated confrontation at a La Mesa bar, left briefly, then returned; after further confrontation and being struck from behind, he retrieved a gun from his brother's car and fired multiple rounds at a departing vehicle, injuring no one.
- Police recovered ten casings at the scene; a gun registered to Franklin's brother was later matched to nine casings.
- Franklin testified he was drunk, feared for his life, thought the victim was armed, and fired to scare them away; he denied aiming to kill.
- A jury convicted Franklin of premeditated and deliberate attempted murder (Terry) and two counts of assault with a semiautomatic firearm; firearm-use enhancements were found on each applicable count.
- During deliberations the jury asked for clarification on the elements of attempted voluntary manslaughter (heat of passion); the trial court answered inaccurately by stating the People must prove all five CALCRIM No. 603 factors beyond a reasonable doubt.
- Franklin appealed arguing the trial court’s supplemental instruction (and counsel’s failure to object/request a pinpoint instruction) improperly shifted burdens and undermined consideration of provocation; he also sought resentencing in light of recent firearm-enhancement legislation.
Issues
| Issue | Plaintiff's Argument (Franklin) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether the court's supplemental answer to the jury misstates law on heat-of-passion and burden of proof | Trial court told jury the People must prove all CALCRIM No. 603 factors, effectively making provocation an element to be proved by People and shifting burden to Franklin; this undermined the jury's ability to find voluntary manslaughter | The response was understandable in context and would not have misled the jury to change the burden of proof; any error was harmless | The court agreed the response was legally incorrect (People need not prove provocation) but found the error harmless beyond a reasonable doubt given the instructions and jury verdict (premeditation finding inconsistent with heat of passion) |
| Whether counsel was ineffective for not objecting to the court’s proposed response to the jury | Failure to object and failure to request pinpoint instruction deprived Franklin of adequate instructions on provocation and premeditation | Defense assent does not waive review where instruction is legally incorrect; People contend no prejudice | Court rejected ineffective-assistance claim for failure to show prejudice; no reversible error shown |
| Whether a finding of premeditation/deliberation precludes heat-of-passion mitigation in this case | Franklin: jury question shows provocation was in play; erroneous answer could have prevented reduction to manslaughter | People: verdict finding willful, deliberate, and premeditated shows jury necessarily found no heat of passion; any instructional error was harmless | Court held the premeditation/deliberation findings are inconsistent with heat-of-passion here and therefore negate prejudice from the erroneous supplemental instruction |
| Whether resentencing is required because of recent changes to firearm-enhancement statutes | Franklin seeks application of amended sentencing rules | People concede retroactivity to nonfinal cases and agree resentencing is appropriate | Case remanded for resentencing so trial court can exercise discretion under the revised firearm-enhancement statutes |
Key Cases Cited
- People v. Rios, 23 Cal.4th 450 (explaining that heat of passion negates malice and the People must prove absence of provocation to sustain murder)
- People v. Beardslee, 53 Cal.3d 68 (discussing a trial court's duty under section 1138 and care in supplemental jury instructions)
- People v. Thompkins, 195 Cal.App.3d 244 (warning that erroneous answers to jury inquiries during deliberations can be highly prejudicial)
- Bollenbach v. United States, 326 U.S. 607 (court admonition that a judge's misleading reply to a jury inquiry can be decisive and reversible)
- People v. Wharton, 53 Cal.3d 522 (holding a finding of willful, deliberate, and premeditated murder is inconsistent with heat of passion and can render omission harmless)
- People v. Berry, 18 Cal.3d 509 (reversing where insufficient instruction on provocation meant jury may not have properly considered heat of passion)
- Chapman v. California, 386 U.S. 18 (establishing the harmless-beyond-a-reasonable-doubt standard for constitutional instructional error)