People v. Frans CA2/4 ( 2024 )

Filed 10/9/24 P. v. Frans CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(a). This
opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B332532
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA004251
v.
DAVID WAYNE FRANS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Daviann L. Mitchell, Judge. Reversed and
remanded with instructions.
Marilee Marshall, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Michael J.
Wise, Deputy Attorneys General, for Plaintiff and Respondent.
In 1993, defendant and appellant David Wayne Frans pled
guilty to second degree murder. The trial court sentenced him to
15 years to life in state prison. In 2019, Frans filed a petition for
recall and resentencing under former Penal Code section
1170.95.1 In 2020, the trial court denied the petition without
issuing an order to show cause. On appeal, a different panel of
this court reversed the order denying relief and remanded the
matter to the trial court for an evidentiary hearing under section
1172.6, subdivision (d)(3). (People v. Frans (Oct. 29, 2021,
B307967) (Frans I) [nonpub. opn.].)
On remand, the trial court appointed counsel for Frans.
The prosecution filed a brief arguing Frans was guilty of murder
under current law. In its brief, the prosecution relied on
testimony adduced at co-defendant James Tindell’s preliminary
hearing, which the prosecution asserted proved beyond a
reasonable doubt Frans remains guilty of murder under current
law. Relying on facts contained in co-defendant Tindell’s
preliminary hearing transcript, the trial court denied Frans
relief, concluding the prosecution had proven beyond a
reasonable doubt Frans was guilty of murder under current law.
Frans timely appealed. He argues Tindell’s preliminary
hearing transcript was inadmissible hearsay. That transcript,
however, is not included in the appellate record in this case.
1 All undesignated statutory references are to the Penal
Code. Effective June 30, 2022, the Legislature renumbered
section 1170.95 to section 1172.6. (Stats. 2022, ch. 58, § 10.)
There were no substantive changes to the statute. For clarity, we
will refer to the statute by its new section number. That section
provides relief to certain individuals convicted of murder under
an imputed-malice theory of liability. (See § 1172.6.)
2
It is unclear why the prosecution did not rely on Frans’s
preliminary hearing transcript instead of, or in addition to,
Tindell’s, when seeking to prove its case in the trial court. We
take judicial notice of the record in Frans I resolving Frans’s
previous section 1172.6 appeal (case number B307967). We note
that the record in that case contains both preliminary hearing
transcripts.
The case is remanded to the trial court for further
proceedings under section 1172.6, subdivision (d)(3). If the
prosecution elects to offer either or both preliminary hearing
transcripts in seeking to prove its case against Frans, the trial
court should rule on any objection to the admissibility of those
transcripts under subdivision (d)(3).
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DISPOSITION
We reverse the trial court’s order denying Frans section
1172.6 relief, and remand the case for further proceedings under
section 1172.6, subdivision (d)(3).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, P. J.
We concur:
COLLINS, J.
ZUKIN, J.
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