Metropolitan News-Enterprise


Friday, March 8, 2013


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S.C. Orders Retrial for Man Convicted of Murder in Traffic Death

Court Grants Reversal Due to Lack of ‘Escape’ Instruction in Felony-Murder Case




The California Supreme Court yesterday unanimously ordered a new trial for a Long Beach man convicted of first degree murder in connection with a traffic fatality.

Cole Allen Wilkins was sentenced to 26 years to life in prison by Orange Superior Court Judge Richard Toohey after being tried and found guilty under a felony-murder theory.

The Fourth District Court of Appeal affirmed the conviction two years ago, but the high court said yesterday that Wilkins likely would have been acquitted but for an instructional error by the judge.

The victim, Los Angeles Deputy Sheriff David Piquette, was killed when a stove fell from Wilkins’ pickup truck.

Fatal Crash

The deputy was driving to work around 5 a.m. on July 7, 2006 on the 91 Freeway from his Corona home when he came upon a scene where several drivers had hit the stove. He swerved to avoid a collision, but hit a truck carrying cement and was crushed to death.

The driver of the truck, “a big truck, tractor with two trailers,” testified that he was carrying a full load at a speed of 55 miles per hour, lost control of the vehicle after hitting a vehicle that he never saw, and was injured in the ensuing collision.

Subsequent investigation determined that the stove was one of several large appliances taken in the burglary of a home under construction in Menifee, Riverside County, more than 60 miles from the site of the fatality.

After recovering the remainder of the appliances from the residences of two friends of Wilkins, authorities concluded that Wilkins had burglarized the residence, and—in his haste to flee the scene—failed to tie the appliances down, even though he had tie-downs in his vehicle.

Burglary Denied

Wilkins claimed he had purchased the appliances for $1,500 from a friend named “Rick.” The defendant, who admitted two prior convictions for selling stolen property, said he suspected the goods Rick was selling might be stolen, but “needed the stuff for the house” that he and an ex-girlfriend were planning to build as an investment.

A check of Wilkins’ cell phone records revealed he was in the Menifee area when the items were delivered about 10 days before they were stolen, and again around the time the crime occurred.

Wilkins admitted that he did not stop his vehicle until a motorist who was driving behind him when the stove fell off flashed his lights and honked his horn. He also acknowledged that he gave the man a phony name and two false telephone numbers and did not produce a driver’s license or registration for the truck, and that he lied to CHP investigators

He lied, he said, because he was uninsured and his driver’s license was suspended.

Chief Justice’s Opinion

Chief Justice Tani Cantil-Sakauye, writing for the high court, said Toohey should have instructed jurors that to find Wilkins guilty under the felony-murder rule, they had to find that he had not reached a “temporary place of safety” between the time of the burglary and the fatal event.

That principle, the “escape rule,” is set out in CALCRIM No. 3261. Wilkins’ attorney asked for the instruction at trial, but the judge denied it based on a bench note to the instruction, reading:

“This instruction should not be given in a felony-murder case to explain the required temporal connection between the felony and the killing. . . .This instruction should only be given if it is required to explain the duration of the felony for other ancillary purposes, such as use of a weapon.”

The chief justice explained, however, that the bench note was drawn from a case involving a different issue. People v. Cavitt (2004) 33 Cal.4th 187 held that a perpetrator who had escaped to a place of safety following the underlying felony could still be convicted of murder where his accomplice remained at the scene where both the underlying felony and the killing occurred.

“However,” Cantil-Sakauye wrote, “in cases like the present one, involving a single perpetrator, we have never suggested that if the perpetrator flees the scene of the crime and reaches a place of temporary safety before the killing, the killing and the felony could still be considered part of one continuous transaction.”

Federal Standard

The chief justice went on to say that the instructional error violated the defendant’s federal constitutional right to have the jury properly instructed on the elements of the offense. But even if the less stringent state-law standard applied, she said, reversal would be required.

Given the time and distance between the burglary and the fatality, the fact that Wilkins was driving at a normal speed, and the fact that the burglary had not yet been discovered, “there is a reasonable probability that a jury properly instructed on the escape rule would have concluded that defendant had reached a place of temporary safety before the fatal act occurred and was not guilty of felony murder,” Cantil-Sakauye wrote.

The case was argued in the Supreme Court by Richard A. Levy of Torrance for the defendant and by Deputy Attorney General Steven T. Oetting for the prosecution. 

The case is People v. Wilkins, 13 S.O.S. 1124.


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