People v. Franklin CA4/1

California Court of Appeal · D063871 · 2013-10-24 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCN309838
Trial judge: Kathleen M. Lewis
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), O'Rourke, Cynthia Aaron

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:48Z · confidence low

The trial court convicted Roxana Franklin of exhibiting a firearm in a threatening manner and denied defense counsel's request to demonstrate the operation of the gun. The Court of Appeal affirmed the judgment after conducting an independent review of the record pursuant to People v. Wende and finding no reasonably arguable issues.

Ruling reviewed	Standard	The court	The model
Denial of defense counsel's request to demonstrate the operation of the gun “Did the trial court prejudicially err in refusing to allow a demonstration of the operation of the gun?”	unclear	not reached	unsure The appellate court identified this as a 'possible, but not arguable issue' in the Wende brief but did not provide specific legal analysis or a standard of review for this specific evidentiary ruling, stating only that it had reviewed the entire record and found no reasonably arguable appellate issues.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying any arguable issues and requires the court to conduct an independent review of the record if no issues are identified.
relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to withdraw from an appeal where no arguable issues exist, requiring a brief identifying potential issues and court review.

The appellate opinion: sound with gaps — The opinion is procedurally sound as it follows the established Wende/Anders protocol for reviewing appeals where counsel finds no arguable issues. However, it is a 'sound with gaps' opinion because it fails to provide any substantive legal analysis or reasoning for why the identified 'possible' issue regarding the gun demonstration was not 'arguable,' relying solely on the conclusion that no issues were found after independent review.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

Following a court trial, the San Diego Superior Court convicted Roxana Franklin of exhibiting a firearm in a threatening manner against a motor vehicle occupant (Pen. Code, § 417.3), found she personally used a firearm, and placed her on probation with 180 days in an electronic surveillance program; during trial the court denied a defense request to demonstrate the operation of the revolver. On appeal, appointed counsel filed a Wende/Anders brief identifying the denial of the demonstration as a possible but not arguable issue, Franklin filed no supplemental brief, and the Court of Appeal independently reviewed the record, found no reasonably arguable issues, and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of defense counsel's request to demonstrate the operation of the .22 caliber revolver (that it automatically cocks when opened) at trial. “At trial defense counsel offered to demonstrate the operation of the gun, specifically that it automatically cocks when it is opened. The trial court denied the request.”	unclear	correct	agree with court The court did not articulate a standard of review or analyze the ruling; it treated the issue as not reasonably arguable after Wende review. Evidentiary rulings of this kind are ordinarily reviewed for abuse of discretion, and because § 417.3 requires only that a firearm be exhibited in a threatening manner causing reasonable fear, whether the gun cocked automatically or by Franklin's thumb was at most marginally relevant, so exclusion would likely be within discretion and, in any event, harmless. The opinion gives no account of the trial court's reasons, which limits certainty.
Judgment of conviction under Pen. Code § 417.3 with a personal firearm use finding (§ 1192.7, subd. (c)(8)) and grant of probation with 180 days custody. “We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues.”	unclear	correct	agree with court The appellate court conducted the independent record review required by Wende and Anders, offered the defendant an opportunity to file her own brief, and found no arguable issue. The recited facts (victim's testimony that Franklin displayed a pistol, cocked it, and asked 'Do you want to die?'; recovery of a revolver from the car) are sufficient to support the conviction and use finding even though the trial court found the victim partly to blame. Nothing in the opinion suggests legal error.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error before affirming.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous may so advise the court and file a brief referring to anything in the record that might arguably support the appeal, after which the court reviews the record itself.

The appellate opinion: sound with gaps — The opinion follows the Wende/Anders procedure, recites the facts, procedural history, offense, punishment, and the possible issue identified by counsel, and affirms after independent review; the result is defensible on the facts recited. It does not, however, explain the trial court's reasons for excluding the gun demonstration or state why that issue is not arguable, leaving a gap in the analysis of the one flagged issue.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 10/24/13 P. v. Franklin CA4/1 NOT TO BE PUBLISHED IN 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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D063871

Plaintiff and Respondent, v. (Super. Ct. No. SCN309838)

ROXANA FRANKLIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Kathleen M. Lewis, Judge. Affirmed.

Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Roxana Franklin was convicted, following a court trial, of exhibiting a firearm in a threatening manner against an occupant of a motor vehicle (Pen. Code,1 § 417.3). The court also found Franklin personally used a firearm in the commission of the offense 1 All further statutory references are to the Penal Code unless otherwise specified (§ 1192.7, subd. (c)(8)). The court granted Franklin probation subject to 180 days custody, to be served in the electronic surveillance program in lieu of jail.

Franklin filed a timely notice of appeal.

Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders) raising a possible, but not arguable issue. We offered Franklin the opportunity to file her own brief on appeal, but she has not responded.

STATEMENT OF FACTS

This conviction arises out of an incident of "road rage." At about 1:00 p.m., on September 4, 2012, William Porter was driving on Interstate 5 in his red station wagon.

He noticed a blue Mercedes pass him at a high rate of speed. Both Porter and the Mercedes exited on the eastbound ramp to Highway 78.

A short distance away, according to Porter, the Mercedes, driven by Franklin, pulled next to him. Franklin rolled down her window and said, "You are an asshole."

Porter said he made no response and the Mercedes drove away.

Porter again encountered the Mercedes and then rolled down his window and called Franklin an "ugly bitch." Franklin responded angrily, "fuck you."

As the encounter continued, Porter said he pulled over and the Mercedes pulled next to him. The driver was yelling obscenities. The woman in the passenger seat said "Roxy, let it go."

2 Porter drove forward but said the Mercedes again pulled next to him. Franklin produced a leather wallet with a badge and a pair of handcuffs and said, "When do you want to go to jail? I'm a cop."

Porter said he drove on and was again encountered by Franklin, who was holding a pistol. Porter said he heard the gun cock and saw Franklin's thumb move. She asked, "Do you want to die?" Porter called 911.

Porter followed Franklin and observed her drive to the California Highway Patrol (CHP) office in Oceanside. He waited in a parking lot across the street to await police.

Franklin got out of her car, looked at Porter and "flipped him off."

Franklin acknowledged having handcuffs and a flat badge. She had worked for the Coronado Police Department but was never a sworn police officer.

A search of the car revealed a .22 caliber revolver between the driver's seat and the center console.

At trial defense counsel offered to demonstrate the operation of the gun, specifically that it automatically cocks when it is opened. The trial court denied the request.

Franklin testified in her own behalf. She said Porter had cut her off while on Interstate 5. When they exited at Highway 78, and stopped shortly thereafter, she saw Porter make hand gestures. At the next stop Porter called Franklin and her passenger "fat, ugly dykes." Franklin responded that Porter was a "fucking asshole."

Franklin said the encounter went on for some distance with Porter bumping the rear of her car.

3 At a further encounter Franklin, acting out of fear, displayed her badge and handcuffs. When that did not work she displayed her "pea shooter."

Franklin drove to the CHP office to report that Porter had tried to kill her several times.

Lisa Cronin, who was the passenger in Franklin's car, testified to essentially the same version of the events as did Franklin Following the testimony the trial court took the matter under submission.

Ultimately, the court found the victim was partly to blame for "this entire mess," but nonetheless found Franklin guilty of the felony in count 1 and that she had personally used a firearm.

As we have previously noted, appellate counsel has filed a brief indicating she is unable to identify any argument for reversal and asks this court to review the record for error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.

738, the brief identifies a possible, but not arguable issue:

Did the trial court prejudicially err in refusing to allow a demonstration of the operation of the gun?

We have reviewed the entire record in accordance with Wende, supra, 25 Cal.3d 436 and Anders, supra, 386 U.S. 738, and have not found any reasonably arguable appellate issues. Competent counsel has represented Franklin on this appeal.

4 DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

WE CONCUR:

O'ROURKE, J.

AARON, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12