People v. Franklyn

• Decision Date: 22 June 1984
• Docket Number: Cr. 43528
• Citation: 203 Cal.Rptr. 813,157 Cal.App.3d 518
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jeffrey Anthony FRANKLYN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 813

203 Cal.Rptr. 813

157 Cal.App.3d 518

The PEOPLE, Plaintiff and Respondent, v. Jeffrey Anthony FRANKLYN, Defendant and Appellant.

Cr. 43528.

Court of Appeal, Second District, Division 7, California.

June 22, 1984.

Hearing Granted Sept. 13, 1984.

Russell Iungerich, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., William R. Weisman and Robert S. Henry, Deputy Attys. Gen., for plaintiff and respondent.

THOMPSON, Acting Presiding Justice.

Defendant Jeffrey Anthony Franklyn was convicted, by a jury, of four felony offenses arising out of the robbery of a grocery market. These offenses included first degree murder (Pen.Code, § 187; count I), ¹ robbery (§ 211; count II), and two counts of attempted murder (§§ 664/187; counts III and IV).

The special circumstances that the murder of Kenneth Bolan was committed by the defendant while he was an accomplice in the commission of the crime of robbery in violation of section 211 within the meaning of section 190.2, subdivision (a)(17), in connection with count I was found true by the jury. In addition, the jury found defendant had used a firearm in the commission of each of the offenses.

Defendant was sentenced to life in prison without possibility of parole on the felony-murder conviction. Sentences on the other offenses were stayed, with the stay to become permanent upon completion of the sentence on the felony-murder conviction. This appeal followed.

On appeal, defendant contends: (1) the trial court improperly instructed the jury on the mens rea required of an aider and abettor; and (2) the jury instructions on the requisite malice of attempted murder are contradictory and require a reversal of the convictions for attempted murder. ²

We have concluded, in light of People v. Beeman (1984) 35 Cal.3d 547, 199 Cal.Rptr. 60, 674 P.2d 1318, that the convictions for first degree felony murder and robbery must be reversed. Furthermore, in view of the contradictory jury instructions defining the mental element essential to the crime of attempted murder, we have concluded the convictions for attempted murder must also be reversed.

Facts

Viewed in accordance with the usual rule governing appellate review (People v. Johnson (1980) 26 Cal.3d 557, 578, 162 Cal.Rptr. 431, 606 P.2d 738), the evidence established that on September 15, 1981, at approximately 2 p.m., Randy Otsuji, store manager of Frank's Market located at 250 North La Brea in Inglewood, was shelving products when he first observed from about 20 feet away two young black men in maroon/red jackets walking at a fast pace through the store. Otsuji became suspicious and went to observe the men from the office's one-way mirror. From the office area, elevated 10 to 15 feet above the store, Otsuji continued to watch the men. When Kenneth Bolan, a liquor clerk, went upstairs to the office to retrieve some cash, Otsuji advised him of the two men. Before leaving the office to return to the liquor department, Bolan pointed out, through the one-way mirror, the two men to storeowner Donald Yasuda. After Bolan left the office, Donald Yasuda watched the men for a minute or two. When Donald Yasuda saw that the two men appeared to be waiting in line to be served at the liquor department, he proceeded to the produce department which was located at the opposite end of the store.

Serving customers at the liquor counter that afternoon were three employees: Bolan, Mary Yasuda and Ralph Vengas. Venegas waited on a woman at the far end of the liquor counter while Bolan, who had just returned from the office, and Mary Yasuda waited on customers at the register at the opposite end of the liquor counter. Bolan reached into the drawer beneath the register for a bag of money just as one of the men in a red jacket stepped behind the counter and grabbed the bag from Bolan. When Bolan jerked back suddenly, grabbing the bag, the man shot Bolan in the head. At that instant Bolan released his grip on the bag and fell down wounded while the man fell back into some liquor bottles. The man hastily ran from behind the counter, knocking down Mary Yasuda as he rushed toward the door. The other jacketed man, who had been standing on the customer's side of the counter, also ran with the shooter, and together they exited the market's automatic middle doors.

Several market employees heard the shots and screams, and they either ran toward the liquor department or turned their eyes in that direction in time to see the two men fleeing. Among those employees who witnessed the escape were Mary Yasuda and clerk Jeffrey Mueting. Mueting, from his post at register 4, which was located three registers away from register 1 in the liquor department, saw the two men's profiles as they ran past him.

Once outside the market which faces La Brea Avenue, the two men made a sharp right turn and ran east on Beach Boulevard along the side of the market. One of the fleeing pair fired several .22 caliber bullets in the general westerly direction of the market employees who ran after them.

Meanwhile, Mr. Gonzalo Lizarraga, a UPS driver, had double parked at 200 East Beach in preparation to make several pickups at Del-Kay Plastics. A 1969 Datsun car was parked between his truck and the curb and it was to this parked and unoccupied car that the two jacketed men ran. The UPS driver first heard shots and then observed from a distance of about 15 feet the two men reach the Datsun. He saw one of the men fire a shot before entering the passenger side of the car. The other man entered the car on the driver's side and then took about 10 seconds to start the car. Once the car's engine started, the two men sped away, traveling east on Beach Boulevard.

A few moments earlier inside the market Curtis Ankenberg, who worked at register 6 located farthest from the liquor department, heard two shots and glass break and he hastily ran to the produce room at the extreme back of the store. Quickly, Ankenberg grabbed the back door key from the produce clerk. While opening the door which opens onto Beach Boulevard, Ankenberg heard shots being fired from the street. Upon opening the door, he saw two black males running east on Beach. He observed as they got into a Datsun and drove east. Although Ankenberg did not see the men's faces, he was able to write down their license plate number which was ZBB 814. Ankenberg then returned to the market and called the police.

A radio message alerting area police of the incident was then broadcast. Police officers and a paramedic unit soon arrived but were unable to save the life of clerk Bolan who sustained a fatal .38 caliber gunshot wound to the head.

Traffic Officer Hoffman was traveling northbound on Prairie Avenue when he received the call concerning the Frank's Market incident and a description of the two suspects. Almost immediately thereafter he saw the suspects driving south on Prairie near Manhattan Beach boulevard in Los Angeles, wearing what appeared to be red blazer jackets. As he changed direction himself, Hoffman advised nearby units of the suspect's location. Hoffman proceeded to follow the suspects when another motorist, unconnected with the robbery, signalled to Hoffman and subsequently detained the officer for about 15 seconds. During this brief period, Hoffman lost sight of the suspects.

Meanwhile, Mrs. Esme Flowers and her daughter arrived home at 3612 W. 102nd Street. As they drove into their carport, they observed a small car with two black males pull into a nearby carport. According to Mrs. Flowers, the men pulled in and out of several carports before parking at the end carport which contained a trash bin. The two men who emerged from the car were strangers to Mrs. Flowers but she noticed that one man was wearing a light colored shirt and the other had on a red shirt. She watched as they placed something under the trash bin. Mrs. Flowers continued to observe the men as they quickly scrambled through a hole in the back fence and disappeared. Within five minutes, police officers, including Officer Harry Clark, arrived and began to question Mrs. Flowers who pointed to the small car and told the officers what she had just witnessed.

Upon his arrival at the carport area of 3612 W. 102nd Street, Officer Clark located the suspects' vehicle, a 1969 Datsun with the license number ZBB 814. The officer's search of the carport area uncovered a maroon jacket behind a trash bin and a .22 caliber sawed-off rifle underneath the same bin.

Meanwhile, after having lost sight of the suspects' car on Prairie Avenue, Officer Hoffman proceeded to search the nearby residential areas. At 102nd street, he joined with other officers who had detained two men matching the physical description of the suspects. The two detainees were not wearing red jackets.

Shortly thereafter, Officer Arlen Vaselenko escorted market employees Venegas and Otsuji to 104th Street east of Yukon where they were asked to identify the two detainees. The employees, who remained seated in the police car, were unable to make a positive identification. However, Thaddeus Paul Daley and Curtis Prentice Wilson were arrested at that time.

Officer Richard Causey, assigned to the Investigation Identification Bureau, arrived at 3612 W. 102nd Street around 3 p.m. that same afternoon. He observed the 1969 Datsun and a trash bin near the wall. He also observed a maroon colored shirt wedged between the bin and the wall. Upon his examination of the jacket, Causey found a wallet, keys, a driver's license, and other identification belonging to defendant Jeffrey Anthony Franklyn. Causey also noticed a loaded .22 caliber sawed-off rifle underneath the trash bin. According to Officer Causey, defendant's prints ³ were not found on or inside the car nor were they found on the rifle.

Officer Michael Harvey arrived at 104th Street near Yukon soon after hearing of the Frank's Market incident over his police radio. Around 2:30 he began...