Filed 8/2/16 P. v. Franks CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070660
         Plaintiff and Respondent,
                                                                                (Super. Ct. No. 1444611)
                   v.

TOM MARK FRANKS,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Ricardo
Cordova, Judge.
         Gideon Margolis, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L.
Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Kane, J. and Poochigian, J.
                                   INTRODUCTION
       A jury found appellant Tom Mark Franks not guilty of second degree murder for
the death of Jacqueline Millan, but instead found him guilty of voluntary manslaughter
(Pen. Code, § 192, subd. (a); count I). It was found true he personally and intentionally
discharged a firearm (Pen. Code, § 12022.53, subd. (d)). Appellant admitted a bail
enhancement allegation and prior felony conviction allegations. He was sentenced to an
aggregate prison term of 39 years.1 Various fees and fines were imposed.
       On appeal, appellant contends the trial court abused its discretion in admitting
evidence of his prior acts of domestic violence. We find no abuse of discretion and no
prejudice even when we presume error occurred. We affirm.
                               FACTUAL BACKGROUND
I.     Relevant trial facts.
       A.     The shooting.
       On May 4, 2012, Jacqueline (Dotty) Millan was shot in her head. The shooting
occurred near a house on Vernon Avenue in Modesto which Jacqueline was renovating
with appellant. There was no evidence of gun powder around Jacqueline’s wound,
indicating it was not a close-range shot. There was no exit wound. The bullet wound
was approximately one centimeter in size. The bullet struck her skull and shattered into
several pieces, making it impossible to determine its caliber. Based on the size of the
entry wound, a deputy believed a small handgun could have been used to shoot her. She
was declared brain dead on May 7, 2012.
       B.     The neighbor’s testimony.
       Floriberto Aguilar saw Jacqueline in the early evening of the shooting. She was
walking towards the Vernon house, which was two houses from his residence. Aguilar


1    Appellant was concurrently sentenced and received additional time from a
companion case which is not part of this appeal.


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went inside his residence and opened a window. He could hear Jacqueline arguing with
appellant, recognizing their voices from past encounters. Jacqueline was accusing
appellant of cheating on her. Aguilar knew appellant was Jacqueline’s boyfriend. The
arguing lasted 20 or 30 minutes. He called 911 when it intensified.
       After calling authorities, Aguilar poked his head out his window. It was dark
outside. He saw Jacqueline’s silhouette as she stood outside, and he did not see anyone
else. He pulled his head back inside and continued to hear Jacqueline arguing with
appellant. After some time, appellant was quiet for three to five minutes. At some point
Aguilar saw a “tall, skinny male” run out of a nearby alley. This person turned and ran
down the street in Jacqueline’s general direction. Aguilar did not believe the skinny male
was appellant. Aguilar then heard three shots and sounds of someone running away. He
described the shots as if coming from “a little toy cap gun” which made a “popping
noise.” Aguilar called 911 again and reported the shots fired. He looked out his window
and saw two vehicles parked in the street. Aguilar could see a man was in one of the
vehicles. Aguilar exited his house and found Jacqueline lying on the ground, severely
injured but still conscious.
       C.     Appellant’s initial statements.
       Sheriff’s deputies arrived at the shooting scene at approximately 10:00 p.m. and
conducted a search of the area. Later that night, deputies established a perimeter around
the Vernon house. Following commands from deputies, appellant exited the rear of that
house. He was taken into custody and transported to a sheriff’s station. Sometime after
11:25 p.m. that night, a deputy administered a gunshot residue test on appellant’s hands,
which was negative. The lack of gunshot residue either indicated appellant did not fire a
gun, he fired a gun but no particles were deposited on the areas which were sampled for
testing, he fired a gun and no residue was left on his hands, or any deposited residue was
removed by the time the samples were collected.



                                            3.
       Deputies conducted a general search around the crime scene, and searched the
Vernon residence and a neighboring storage shed. No gun or ammunition was located.
No spent shell casings were located. In the shed, a gun holster was located, which
appeared very worn. The holster was designed to hold a compact-sized gun, possibly
having a two- or three-inch barrel. Deputies were unable to search a burned-out detached
garage located at the Vernon house due to its structural unsoundness. Deputies also did
not search two septic tanks on the property which were not sealed but were covered with
plywood. Based on the covering, a deputy opined at trial that someone could have tossed
something into a septic tank.
       At the sheriff’s office, appellant told deputies he had been sleeping in the Vernon
house when the shooting occurred. He said he had been at Jacqueline’s residence earlier
in the evening, identifying himself as her “off and on” boyfriend of 27 years, and her
live-in boyfriend over the last year. He denied arguing with Jacqueline that night and
said he was asleep when any arguing occurred. He said he was oblivious to what
happened outside. He claimed to have not heard any of the shots, sirens or noises.
Appellant then said he had an earlier argument with Jacqueline that day at another
location, and he had been drinking earlier. He claimed to have gone to the Vernon house
alone and passed out from too much alcohol.
       When shown the gun holster from the shed, appellant said he did not know
anything about it and claimed somebody was setting him up. He later admitted that
everything in the shed belonged to him. He opined it was Steve Millan, Jacqueline’s
estranged husband, who hurt Jacqueline. Appellant was confronted with Aguilar’s
statements that appellant was heard arguing with Jacqueline before the shots. Appellant
continued to deny having any argument with her outside the Vernon house. He showed
very little emotion upon hearing that Jacqueline was not doing well and would probably
not live.



                                            4.
       D.     Appellant changes his story.
       Several days later, after being placed into jail, appellant asked to speak again with
a deputy. In the subsequent interview, appellant changed his story regarding the night of
the shooting. He said he returned to the Vernon house and Jacqueline arrived shortly
thereafter, banging on the door. She accused him of having an affair and cheating on her.
The argument escalated and became physical. He said Jacqueline swung at him on the
front porch. He gave her a bear hug and they moved to the front yard. He said “all of a
sudden a gun comes out of nowhere.” He had no idea where the gun came from. A
single shot occurred. He let go of Jacqueline, walked back inside the Vernon house and
fell asleep. He said he did not check on Jacqueline’s well-being because he was in shock,
blacked out, and did not know what happened. When asked why he lied during his first
interview, appellant said he did not know, he was in shock, and he did not know what
occurred.
       E.     Evidence of appellant’s prior acts committed against Jacqueline.
       The son of Steve and Jacqueline, Aaron Millan, told the jury that appellant and
Jacqueline argued a lot. Aaron recalled a fishing trip during which appellant and
Jacqueline got into an argument, and appellant pushed her. Police were called and she
complained about her chest hurting.
       On another day in April 2012, appellant and Jacqueline had an argument and he
tried to set fire to an attic of a house they were renovating. Appellant lit newspaper and
began to climb a ladder to the attic. Aaron knocked the newspaper from appellant’s
hand, and the argument continued. Appellant left the area. Jacqueline complained of
chest pain and she showed Aaron a handprint on her chest, which Aaron photographed.
Later that night, appellant went to Jacqueline’s residence and began yelling outside.
Appellant held a brick in his hand, which he threw at Jacqueline’s front door, causing
some damage.



                                             5.
       On another day, Aaron witnessed appellant burning a pile of clothes in their
backyard. Aaron also knew the garage at the Vernon house caught on fire when Aaron
and Jacqueline were not there.
       April Rodrigues, a friend of Jacqueline, recalled an incident when appellant and
Jacqueline got into an argument. Appellant started swinging at Jacqueline, who swung
back. Rodrigues described him as “going nutty” and he hit and kicked at Jacqueline.
Appellant said he was going to kill Jacqueline, called her a stupid bitch, and told
Rodrigues to get out of the way or he would hit her. Appellant left before police arrived.
       F.     Arson investigation.
       On April 8, 2012, fire captain and arson investigator Alfonso Zamora investigated
a fire to the garage at 1605 Vernon Avenue in Modesto. He determined arson was the
cause. He interviewed Jacqueline at her residence. Zamora saw articles of burnt clothing
in the driveway. Zamora also interviewed appellant, who said Jacqueline burnt the
clothes because she was mad at him for cheating on her. Appellant denied any
knowledge of the garage fire at the Vernon house and denied starting it. Appellant,
however, admitted to Zamora that the night before the garage fire occurred, appellant had
lit a piece of paper on fire, but denied trying to burn anything down.
       G.     Steve Millan’s whereabouts during the shooting.
       Aaron testified he was home with Jacqueline on the day she was shot. Aaron
testified that his father, Steve, was not home that day and had not been home for a while.
       Steve testified he and Jacqueline had been married for 13 years but they were
separated. Steve believed Jacqueline knew their relationship was over. He denied ever
being violent towards her, and said he does not own a gun. He worked as a long-haul
truck driver and was not home for long periods of time. He testified he had been away
for approximately three months when the shooting occurred. He was off-duty from work
from April 30 through May 4, 2012. On the day of the shooting, he testified he was in



                                             6.
Ontario, California, staying in his truck. Evidence was introduced at trial showing he
made a cash transaction in Ontario, California on the day of Jacqueline’s shooting.
        Steve became aware of appellant approximately eight months before Jacqueline’s
death. Steve knew Jacqueline was having an affair with appellant. In December, before
the shooting, Steve spoke with appellant on the telephone. Appellant threatened to blow
up Steve’s truck, burn down Steve’s house, and “torch the cars.”
                                       DISCUSSION

I.      The Trial Court Did Not Abuse Its Discretion And Any Presumed Error Is
        Harmless.
        Appellant argues the trial court abused its discretion in admitting evidence of his
prior acts of domestic violence against Jacqueline. He contends reversal is required.
        A.     Background.
               1.     The trial court’s ruling.
        Prior to trial, the prosecution sought leave to introduce evidence of appellant’s
prior acts of domestic violence pursuant to Evidence Code2 section 1109. Specifically,
the prosecutor wanted to introduce the following incidents: (1) on April 7, 2012,
appellant arrived drunk at the house on 1605 Vernon Avenue, he threatened to burn down
the house, attempted to throw a burning newspaper into the attic, and he slapped
Jacqueline across the chest. When Jacqueline and Aaron returned to their home,
appellant threw a brick at the house, causing damage; (2) in Rodrigues’s presence, on
April 8, 2012, appellant confronted Jacqueline at the 1605 Vernon Avenue house. He
struck her five times, knocking her to the ground; and (3) on the same day, April 8, 2012,
the garage at 1605 Vernon Avenue was burned down and appellant was seen leaving the
area.


2      All further statutory references are to the Evidence Code unless otherwise
specified.


                                              7.
       At the hearing on the motion, the prosecutor said it was probable that three or four
witnesses would testify about these prior acts, two of whom would testify on other trial
issues. It was believed this testimony would take less than half a day. Defense counsel
conceded these three prior instances were proper under section 1109, but argued these
acts should be excluded under section 352. The defense asserted the evidence of
appellant’s guilt was relatively weak, making these acts more prejudicial than probative
because the jury could conclude appellant was a bad guy.
       The court determined a relatively insignificant amount of time would be consumed
by this proposed evidence, and it was proper based on allegations of prior domestic
violence. The court ruled this evidence was admissible.
              2.     Relevant closing arguments.
       During closing arguments, the prosecutor’s initial summation focused on the
evidence pointing to appellant as the shooter. Aguilar heard appellant arguing with
Jacqueline close to the time of the shooting. Appellant had time to throw his gun away,
either placing it in the burned-out garage or tossing it down the septic tank. The
prosecutor summarized the past acts of violence which appellant committed upon
Jacqueline. The prosecutor asked the jury to find appellant’s final statement to the
deputy as unreasonable and lies. Jacqueline’s wound was from a small caliber gun and
deputies located the holster. The prosecutor finished her comments by urging the jury to
find appellant guilty of murder, asking them to look at all of the evidence, “including the
lies and where he was and the argument immediately before, and his propensity to
commit domestic violence as one factor including all of those factors to find him guilty.”
       B.     Standard of review.
       “We review a challenge to a trial court’s choice to admit or exclude evidence
under [Evidence Code] section 352 for abuse of discretion. [Citation.]” (People v.
Branch (2001) 91 Cal.App.4th 274, 282.) We will reverse only if the court’s ruling was



                                             8.
“ ‘arbitrary, whimsical, or capricious as a matter of law. [Citation.]’ [Citation.]” (Id. at
p. 292.)
       C.     Analysis.
       Appellant asserts the disputed evidence was not highly relevant regarding the
identity of Jacqueline’s shooter. He contends the prior acts were not similar to the
murder and did not readily permit an inference that the same person shot Jacqueline. In
contrast, he argues the prejudicial effect of these acts substantially outweighed its
probative value. He maintains the jurors could have had a strong emotional bias created
from this evidence, perhaps believing he was an arsonist, and there was a considerable
likelihood the jury could confuse the uncharged acts from the charged crime. He submits
the trial court abused its discretion when the legal principles are examined compared to
the reasonableness of the trial court’s decision. We disagree.
              1.     The trial court did not abuse its discretion.
       In general, character evidence is inadmissible to prove a person’s conduct on a
specific occasion. (§ 1101, subd. (a).) However, evidence a defendant committed a prior
crime or other bad act may be admissible if relevant to prove another fact, such as
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or
accident. (§ 1101, subd. (b).) Moreover, when a defendant is charged with an offense
involving domestic violence, “evidence of the defendant’s commission of other domestic
violence is not made inadmissible by [Evidence Code] Section 1101 if the evidence is not
inadmissible pursuant to [Evidence Code] Section 352.” (§ 1109, subd. (a)(1).)
Section 1109 effectively “ ‘permits the admission of defendant’s other acts of domestic
violence for the purpose of showing a propensity to commit such crimes. [Citation.]’
[Citations.]” (People v. Brown (2011) 192 Cal.App.4th 1222, 1232-1233.)
       Section 352 grants a trial court with discretion to exclude evidence “if its
probative value is substantially outweighed by the probability that its admission will
(a) necessitate undue consumption of time or (b) create substantial danger of undue

                                             9.
prejudice, of confusing the issues, or of misleading the jury.” (§ 352.) Under section
352, “the probative value of the evidence must be balanced against four factors: (1) the
inflammatory nature of the uncharged conduct; (2) the possibility of confusion of issues;
(3) remoteness in time of the uncharged offenses; and (4) the amount of time involved in
introducing and refuting the evidence of uncharged offenses. [Citation.]” (People v.
Branch, supra, 91 Cal.App.4th at p. 282.)
       We are unpersuaded by appellant’s argument that his past acts of domestic
violence were not relevant because they were dissimilar to the final act of murder. As
evidenced by the legislative history of section 1109, propensity evidence is permissible in
cases involving charges of domestic violence because domestic violence involves a
scheme of dominance, control and ongoing abuse. (People v. Johnson (2000) 77
Cal.App.4th 410, 419.) Without evidence of past domestic violence, the escalating nature
of that crime is otherwise masked. (Ibid.) It has been recognized that “murder is ‘the
ultimate form of domestic violence[.]’ ” (People v. Brown, supra, 192 Cal.App.4th at
p. 1237.)
       Here, appellant’s prior acts had some probative value to show his ongoing
motivation and intent to both threaten Jacqueline, including a past threat to kill her, and
to physically harm her. Appellant’s past actions demonstrate a pattern of dominance and
control over Jacqueline.
       This evidence was not unduly inflammatory. There was no possibility the jury
would confuse the prior incidents with the charged allegation of murder because the past
acts occurred at different times and involved different circumstances. The prior acts were
relatively mild compared with the murder charge. The presentation of this evidence did
not consume a lengthy amount of trial time. When comparing the legal principles with
the reasonableness of the trial court’s decision, we cannot say that the trial court abused
its discretion.



                                             10.
               2.     Any presumed error was harmless.
         When evidence is erroneously admitted regarding a defendant’s prior bad acts, the
issue is whether it is reasonably probable a result more favorable to the defendant would
have been reached without the error. (People v. Ogle (2010) 185 Cal.App.4th 1138,
1145.)
         Here, Aguilar heard appellant arguing with Jacqueline before her murder. The
argument became so intense Aguilar called 911. Jacqueline’s gunshot wound was small
and likely caused by a small caliber gun. Although law enforcement never located a gun,
they recovered a worn holster in appellant’s shed which previously held a small gun.
Appellant initially told interviewing deputies he slept through the events that night, he did
not argue with Jacqueline at the Vernon house, and knew nothing of Jacqueline’s
shooting. Several days later, however, he dramatically changed his story and said he
argued with Jacqueline at the Vernon house, they were on the lawn, a gun suddenly
appeared, and she was shot. He claimed to have returned inside without checking on her
condition and fell asleep.
         Although the prosecutor mentioned the prior acts as one factor showing
appellant’s guilt, those prior acts did not dominate the prosecution’s case or closing
arguments. Appellant’s statements lacked any credibility regarding his involvement in
Jacqueline’s death. It is not reasonably probable a result more favorable to appellant
would have occurred had evidence of his prior acts not been admitted. Any presumed
error was harmless. Accordingly, appellant’s conviction will not be reversed.
                                      DISPOSITION
         The judgment is affirmed.




                                            11.
