Filed 1/22/24 P. v. Hillman CA5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANK JACOB HILLMAN,

Defendant and Appellant.

F085401

(Super. Ct. No. BF165130A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John R. 

Brownlee, Judge.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. 

Cary and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooAppellant Frank Jacob Hillman was charged by information of first degree murder 

of Shawn Bivens (Pen. Code, § 187, subd. (a)). Following a jury trial, the jury found 
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appellant guilty of the lesser-included offense of second degree murder. Appellant was 

sentenced to a prison term of 15 years to life. 

On appeal, appellant contends the judgment must be reversed because the trial

court erred (1) by admitting evidence of prior uncharged misconduct under Evidence 

Code1section 1101, subdivision (b), and (2) by failing to instruct the jury on the lesserincluded offense of involuntary manslaughter. 

Finding no error as to the first claim, and finding the second claim forfeited, we 

affirm. 

FACTS

Prosecution Case

Charged Conduct

On August 7, 2016, appellant was parked in his vehicle at a motel/housing 

complex. Bivens approached appellant, apparently asked him for money, and the two 

began arguing. Appellant started to drive away, and Bivens threw a wrench at appellant’s 

car. Appellant turned his vehicle around, drove towards Bivens, and struck him with the 

vehicle. The impact killed Bivens. Surveillance footage of the incident was played for 

the jury. Appellant was observed by a neighbor having trouble getting the car into gear 

after striking Bivens and then driving away from the scene. Bivens was found by police 

wedged against a chain link fence. 

After the incident, appellant went home to his girlfriend, Amanda Reed, and 

appeared “a little shook up.” Appellant told Reed he got into a fight with someone and 

hit him with the car. Reed told appellant they needed to return to the scene, which was 

within walking distance from their residence, and on the way, appellant was emotional 

and crying and said it was an accident. Reed told police appellant reported he was just 

trying “to scare” Bivens. 

1 All further undesignated statutory references are to the Evidence Code.
3.

An auto mechanic who replaced the alternator on appellant’s vehicle on July 29, 

2016, testified he had test driven the vehicle for five to 10 minutes and noticed no issues 

with the steering, braking, or any other problems with the vehicle. A Bakersfield police 

officer conducted an inspection of the vehicle in conjunction with the investigation of the 

incident. His inspection revealed that no vehicle malfunction caused it to collide with 

Bivens, and the brake pads were within the manufacturer’s specifications. 

Uncharged Prior Conduct

The week prior to Bivens’s death, appellant, Reed, and their children went to 

Redondo Beach in the same vehicle he was driving on August 7, 2016. On that trip, on 

August 1, 2016, appellant was driving and screaming at Reed, and in attempts to deescalate the situation, she had him pull into a 7-11. She went into the 7-11 and asked the 

employee to call 911, while appellant stayed outside. From inside, she observed another 

woman screaming in appellant’s face and arguing with him. Eventually, the woman and 

appellant got into their respective vehicles and left the parking lot. Reed was worried 

because one of her children was in the car with appellant, but appellant came back into 

the parking lot a minute later. The police arrived shortly after.

The 7-11 employee testified that while he was calling 911, he observed appellant 

getting out of the car and making aggressive verbal threats toward a woman who 

appeared to be trying to provide assistance. The employee opined appellant was trying to 

leave, and the other woman was trying to tell him not to go as there was a child in the car.

The other woman got into her car and appellant got into his car. While the woman’s car 

was still in the parking lot, appellant accelerated towards her vehicle but slammed on his 

brakes before there was a collision. It appeared to the employee to be intentional, like 

appellant was going to ram the woman’s car. At trial, the employee testified appellant 

left the parking lot first.

The Redondo Beach police officer who responded to the scene observed 

appellant’s vehicle parked in the parking lot and contacted Reed, who was “very upset.” 
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Reed was “frantic, crying, rapidly trying to explain what was going on.” Appellant was 

ordered to exit the vehicle, but he initially refused. Eventually, he was placed in 

handcuffs and arrested. Reed told the officer appellant had been driving the vehicle 

around Redondo Beach, yelling at her, speeding around town with their family in the car, 

and acting completely irrational. She was fearful of his “irrational behavior and erratic 

driving.” She told the officer she saw appellant verbally accosting the other woman, 

yelling and advancing toward her in an aggressive manner, and later quickly accelerating

toward the woman’s vehicle and abruptly stopping before rearending it. He accelerated 

out of the parking lot quickly enough to make the tires screech. The 7-11 employee told 

the officer that appellant had accelerated toward the woman’s vehicle at a high rate of 

speed and slammed on his brakes within a foot or two of the woman’s vehicle, and 

chased the woman out of the parking lot, accelerating hard enough to make the tires 

screech.

On cross-examination, the Redondo Beach officer testified that appellant’s arrest 

was for child endangerment, and the reason was that he was accelerating through the 

parking lot with a car seat that was not strapped in properly. 

Defense Case

The defense elicited testimony from the investigating officer of the charged 

offense that he overheard a conversation between appellant and Reed after appellant was 

arrested where he told her that Bivens tripped and that if he had not have fallen, appellant 

would have been able to stop the car in time and would not have hit him. He said he did 

not stop in enough time and that he “was either going too fast or he [Bivens] ... didn’t get 

out of the way in enough time.” 

A traffic accident reconstruction expert testified on behalf of appellant. He 

testified the physical evidence of the scene including the surveillance footage was 

consistent with appellant braking at the time he collided with Bivens. 
5.

DISCUSSION

I. Admission of Uncharged Conduct

A. Relevant Background

The People moved in limine to admit, and the defense moved to exclude, the 

Redondo Beach incident. The People alleged the prior incident was “relevant to 1) 

[appellant’s] intent to kill, 2) [appellant’s] knowledge that driving in direction of others is 

dangerous to human life, 3) [appellant’s] knowledge that his brakes did work and would 

work, and 4) absence of mistake or accident in Shawn Bivens’ murder on August 7, 

2016.” 

In ruling on the People’s motion, the trial court noted it understood the defense’s 

position was that hitting Bivens was an accident. The trial court concluded “the activity 

that happened six days before goes to intent and lack of accident, and as a result, I’ll 

allow the People to use it in their case in chief.” The trial court added, “that will be under 

intent. Not knowledge.” Accordingly, the trial court denied appellant’s motion to 

exclude the evidence. 

B. Standard of Review and General Legal Principles

Trial courts have broad discretion in determining the admissibility of evidence,

and we review challenges to the admission of evidence for abuse of discretion. (People 

v. Jackson (2016) 1 Cal.5th 269, 320‒321.) Under this standard, the court’s ruling 

“ ‘ “will not be disturbed, and reversal of the judgment is not required, unless the trial 

court exercised its discretion in an arbitrary, capricious, or patently absurd manner that 

resulted in a manifest miscarriage of justice.” ’ ” (People v. Lewis (2009) 46 Cal.4th 

1255, 1286.) 

Evidence of prior misconduct is generally inadmissible to prove conduct on 

another specified occasion or to prove a person’s disposition to commit such an act. 

(§ 1101, subd. (a).) Section 1101, subdivision (b) is an exception to this general rule, 

providing that evidence of specific prior acts may be admitted, “ ‘ “ ‘when offered as 
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evidence of a defendant’s motive, common scheme or plan, preparation, intent, 

knowledge, identity, or absence of mistake or accident in the charged crimes.’ ” ’ ” 

(People v. Scully (2021) 11 Cal.5th 542, 586.) Evidence admitted under section 1101, 

subdivision (b) is also subject to analysis under section 352. (§ 1101.) 

“Evidence is not inadmissible under section 352 unless the probative value is 

‘substantially’ outweighed by the probability of a ‘substantial danger’ of undue prejudice 

or other statutory counterweights. Our high court has emphasized the word ‘substantial’ 

in section 352.” (People v. Holford (2012) 203 Cal.App.4th 155, 167.)

C. Analysis

Appellant contends the uncharged act was not similar enough to the charged 

offense and, even if it was, it was “unwarrantedly prejudicial” and thus should have 

nonetheless been excluded. We disagree. 

Uncharged misconduct is admissible to prove intent “ ‘only if the charged and 

uncharged crimes are sufficiently similar to support a rational inference’ ” on the issue. 

(People v. Edwards (2013) 57 Cal.4th 658, 711.) Admission of uncharged conduct to 

prove intent requires “[t]he least degree of similarity” of the purposes enumerated in 

section 1101, subdivision (b). (People v. Ewoldt (1994) 7 Cal.4th 380, 402.) 

We conclude the trial court did not abuse its discretion in determining the 

uncharged incident was sufficiently similar to the charged offense so as to be probative of 

intent or lack of mistake. We reject appellant’s characterization that the incident was “a 

simple case of two vehicles almost colliding accidentally” and his contention that the 

Redondo Beach incident evidence did not “establish an intent on appellant’s part to scare, 

threaten, or run into [t]he woman’s vehicle.” Contrary to appellant’s assertions, the jury 

could have reasonably inferred appellant was angry at the woman as they were seen 

arguing, and he was observed being verbally aggressive toward her, and that he 

maneuvered his vehicle in an intentional and aggressive manner towards the woman’s 

vehicle. This is sufficiently similar to the charged conduct where appellant, after getting 
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angry at Bivens for throwing a wrench at his car, drove the same vehicle he was driving 

in the Redondo Beach incident towards Bivens. 

We also cannot say the trial court’s conclusion that the probative value of the 

evidence was not “substantially” outweighed by a “substantial danger” of undue 

prejudice was an abuse of discretion. Factors that may be considered include, “ ‘(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.’ ” (People v. Culbert 

(2013) 218 Cal.App.4th 184, 192.) 

Here, the uncharged misconduct happened a mere six days before the charged 

offense, so it was close in time, and therefore more relevant than if it had occurred further 

in the past. While the uncharged incident was inflammatory in that it included aggression 

toward another person, and appellant was ultimately arrested for child endangerment, it 

was not nearly as egregious as the charged offense—first degree murder. Thus, the 

probability that the jury would have been unduly prejudiced toward appellant was low.

Additionally, the jury’s decision to convict appellant of a lesser included offense tends to 

show they diligently discharged their duty rather than trying to punish appellant for his 

past behavior. Appellant does not contend the prosecution’s presentation of the Redondo 

Beach evidence took a substantial amount of time during trial, nor do we find it did, and 

the jury was correctly instructed on how to use the evidence, limiting potential confusion 

to the jury. 

For the above reasons, we conclude the trial court did not err by admitting the 

evidence of the Redondo Beach incident. We reject appellant’s brief contention that his 

federal constitutional right to due process was violated by admission of this evidence. 

Because we find no error under state law, we find the alleged error does not rise to the 

level of a due process violation. (See People v. Garcia (2008) 168 Cal.App.4th 261, 

278.)
8.

II. Failure to Give Lesser Included Instruction—Involuntary Manslaughter

A. Relevant Background

Following an in-chambers jury instruction conference, the trial court put on the 

record that “after discussing the case, ... we are going to go murder one, murder two, and 

voluntary manslaughter” and “we wanted to put on the record that [defense counsel is] 

not asking for involuntary due to tactical or strategic reasons based on [the defense’s]

argument.” Defense counsel responded, “Yes, your Honor. Based on the state of the 

evidence and how I believe the defense would proceed, it’s a strategic decision not to 

have that instruction.”

The trial court instructed the jury on first degree murder, second degree murder, 

and voluntary manslaughter. Defense counsel’s argument to the jury was that appellant 

was not guilty of murder, but guilty of voluntary manslaughter. 

B. Analysis

Appellant now claims the trial court erred by failing to instruct the jury on 

involuntary manslaughter. Respondent contends, as a threshold matter, that appellant’s 

claim is barred by the invited error doctrine. We agree with respondent. 

The trial court has a sua sponte duty to instruct fully on all lesser necessarily 

included offenses supported by the evidence. (People v. Souza (2012) 54 Cal.4th 90, 

114.) This duty “ ‘ “exists even when as a matter of trial tactics a defendant not only fails 

to request the instruction but expressly objects to its being given.” ’ ” (Ibid.) 

“Nevertheless, the claim may be waived under the doctrine of invited error if trial counsel 

both ‘ “intentionally caused the trial court to err” ’ and clearly did so for tactical reasons. 

[Citation.] Invited error will be found, however, only if counsel expresses a deliberate 

tactical purpose in resisting or acceding to the complained-of instruction.” (Ibid.) 

Here, defense counsel clearly indicated he was not requesting the jury be 

instructed on involuntary manslaughter for strategic reasons, and it appeared the trial 

court did not give the instruction based on defense counsel’s position. Therefore, 
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assuming for the purpose of appellant’s argument that involuntary manslaughter is a 

lesser included offense obligating the trial court to instruct the jury on it,2 we find 

appellant’s instructional error claim forfeited. 

We reject appellant’s suggestion that the invited error doctrine does not apply 

when the trial court has a sua sponte duty to give an instruction. He does not support his 

assertion with authority and does not address our high court’s contrary indication in 

People v. Souza, supra, 54 Cal.4th 90 by which we are bound. (See Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) To the extent appellant argues that his 

claim is preserved because defense counsel did not object to the instruction but rather did 

not request it, we do not find this to be a substantive distinction. Because the purpose of 

the invited error doctrine is to “prevent a defendant from asserting on appeal that a trial 

court decision for which he advocated below is error and therefore a basis for reversal” 

and thus “the crucial inquiry is whether defendant advocated for the erroneous ruling, not 

whether the trial court’s error was caused by that advocacy.” (People v. Cady (2016) 

7 Cal.App.5th 134, 147, fn. 4.)

In anticipation of our finding appellant invited the error and therefore forfeited this 

claim, appellant contends that defense counsel’s failure to request an involuntary 

manslaughter instruction constituted ineffective assistance of counsel. We do not find 

ineffective assistance of counsel on this appellate record. 

To prevail on an ineffective assistance of counsel claim, appellant must establish 

that (1) the performance of his trial counsel fell below an objective standard of 

2 The parties disagree as to whether involuntary manslaughter is actually a lesserincluded offense of the crime charged in the present case. (See Pen. Code, § 192, 

subd. (b) [the offense of involuntary manslaughter “shall not apply to acts committed in 

the driving of a vehicle”].) We assume only for the purpose of appellant’s argument that 

it is. Given our conclusion appellant invited any error and therefore forfeited his claim, 

we do not reach the merits of whether involuntary manslaughter was a lesser-included 

offense under the facts of this case. 
10.

reasonableness and (2) prejudice occurred as a result. (Strickland v. Washington (1984) 

466 U.S. 668, 687; People v. Anderson (2001) 25 Cal.4th 543, 569.) In evaluating an 

ineffective assistance of counsel claim, we “ ‘ “presume that “counsel’s performance fell 

within the wide range of professional competence and that counsel’s actions and 

inactions can be explained as a matter of sound trial strategy.” ’ ” (People v. Bell (2019) 

7 Cal.5th 70, 125.) Reversal is appropriate “only if there is affirmative evidence that 

counsel had ‘ “ ‘no rational tactical purpose’ ” ’ for an action or omission.” (People v. 

Mickel (2016) 2 Cal.5th 181, 198.) Here, counsel informed the court it was a strategic 

decision not to have the instruction and “we will not second-guess the representation.” 

(See People v. Medellin (2020) 45 Cal.App.5th 519, 525, fn. 4.)

For the reasons set forth, we do not reach the merits of appellant’s claim that the 

trial court erred by failing to instruct on involuntary manslaughter.

DISPOSITION

The judgment is affirmed. 

 DE SANTOS, J.

WE CONCUR:

POOCHIGIAN, Acting P. J.

SMITH, J.