People v. Franklin CA4/1
- Proceeding
- appeal from an order
- Trial court
- Superior Court of San Diego County · No. SCE351716
- Trial judge
- Patricia K. Cookson
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), Laurence D. Rubin, Julia C. Kelety
Analysis
The trial court denied Franklin's petition for resentencing under Penal Code section 1172.6, finding he had not made a prima facie case because the jury verdicts established he was the direct perpetrator and shooter. The Court of Appeal affirmed the denial after conducting an independent review of the record pursuant to Wende and Anders, finding no potentially meritorious issues.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of petition for resentencing under Penal Code section 1172.6“The court found Franklin had not stated a prima facie case for relief under section 1172.6 and denied the petition without issuing an order to show cause.” | de novo | correct | agree with court agree with court |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Establishes the procedure for appointed appellate counsel to file a brief identifying potentially meritorious issues when none are found, requesting independent review by the court.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires the appellate court to independently review the record for error when counsel files a Wende brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires appointed counsel to identify potentially meritorious issues and request independent review by the court.
The appellate opinion: sound — sound
How this analysis was made · dispute it
unusual dispositionThe trial court denied Franklin's Penal Code section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, finding from the record of conviction that he was prosecuted and convicted as the actual shooter who acted with specific intent to kill and that the jury was never instructed on natural and probable consequences liability. On appeal, appointed counsel filed a Delgadillo brief, Franklin filed a largely incomprehensible supplemental brief and habeas petition, and the Court of Appeal independently reviewed the record under Wende and Anders, found no arguable issue, and affirmed.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of section 1172.6 resentencing petition at the prima facie stage without issuing an order to show cause, on the ground that the record of conviction showed Franklin was the direct perpetrator who acted with intent to kill and the jury was not instructed on natural and probable consequences“The jury verdicts established Franklin was the shooter and that he acted with the specific intent to kill.” | unclear | correct | agree with court A defendant convicted as the actual perpetrator of attempted murder with a jury finding of specific intent to kill, where no imputed-malice theory (natural and probable consequences) was presented, is ineligible for section 1172.6 relief as a matter of law, and the trial court may rely on the record of conviction, including jury instructions and verdicts, at the prima facie stage. The court's reliance on verdicts and instructions rather than weighing disputed facts is permissible, so counsel's flagged issue about reviewing historical facts has no traction. The opinion did not articulate a standard of review or cite the controlling Supreme Court authority on the prima facie inquiry, but the result is correct. |
Authorities
- relied: People v. Delgadillo (2022) 14 Cal.5th 216 — Procedure when appointed counsel finds no arguable issues in an appeal from denial of a section 1172.6 petition; the court must evaluate any supplemental brief the defendant files and may, in its discretion, independently review the record.
- relied: People v. Wende (1979) 25 Cal.3d 436 — Appellate court independently reviews the record for arguable issues when appointed counsel files a no-issue brief.
- relied: Anders v. California (1967) 386 U.S. 738 — Counsel filing a no-merit brief should identify issues considered that might arguably support the appeal.
- missed: People v. Lewis (2021) 11 Cal.5th 952 — At the prima facie stage of a section 1172.6 petition the court may consult the record of conviction, including jury instructions and verdicts, to determine ineligibility as a matter of law, but may not engage in factfinding or weighing of evidence; the court did not cite this controlling authority even though counsel's identified issue concerned review of historical facts at the prima facie stage.
The appellate opinion: sound with gaps — The result is plainly correct because the jury found Franklin was the actual shooter who acted with intent to kill and no imputed-malice theory was given, making him ineligible for section 1172.6 relief as a matter of law. The opinion, however, does not state a standard of review, does not cite People v. Lewis on the limits of the prima facie inquiry, and does not substantively explain why the issue counsel flagged (review of historical facts) lacks merit beyond reciting the trial court's findings.
Opinion
Filed 7/26/23 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, D081596
Plaintiff and Respondent, v. (Super. Ct. No. SCE351716)
D’MARE ATTE FRANKLIN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. D’Mare Atte Franklin, in pro. per.; and Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted D’Mare A. Franklin of attempted murder (Pen. Code,1 §§ 187, 664), and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury also found true firearm enhancements under section 12022.53, subdivision (c) and 12022.5, subdivision (a).
1 All further statutory references are to the Penal Code. Franklin was sentenced to an indeterminate life term for the attempted murder, with a consecutive term of 20 years for the personal discharge of the firearm causing great bodily injury (§ 12022.53, subd. (c)). Franklin appealed and this court affirmed the convictions but remanded the case for resentencing on the firearm enhancements. (People v Franklin (Mar. 26, 2018, D071453) [nonpub. opn.].)2 In 2022, Franklin filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. At the hearing, the court concluded Franklin was prosecuted as the direct perpetrator of the offense. The jury verdicts established Franklin was the shooter and that he acted with the specific intent to kill. The court also noted the jury was not instructed on the theory of liability for the acts of another based on the natural and probable consequences. The court found Franklin had not stated a prima facie case for relief under section 1172.6 and denied the petition without issuing an order to show cause. Franklin filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to the direction provided in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to independently review the record for error consistent with the procedure outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Franklin the opportunity to file his own brief on appeal. He has responded with a lengthy document which contains what appears to be a brief as well as a separate petition for 2 The facts of the offenses are adequately discussed in our earlier opinion. We will not repeat them in this opinion. 2 habeas corpus. The document is almost incomprehensible. It does not dispute that Franklin was the actual perpetrator of the offenses. Instead, it offers a rambling assortment of statements and citations to various cases, constitutional amendments without any explanation of how they apply to this appeal from the denial of his petition for resentencing. We will quote fairly typical phrases from the document simply to illustrate why we conclude it does not raise any potentially meritorious issues for reversal on appeal. On page 4 of the habeas petition Franklin states: “The point of error of the specific denial in appealing the argumentative denial of the rez nova extraordinary writ pertains to conflict of the choice of laws arguendo the depecage [sic] penumbra renvol within Ca. Pen. Code [section] [1172.6] . . . .” The supplemental brief begins with the phrase “Prothonotary, [sic] Oyez; would you be ready, willing and able to forward the engrossed strict and practically constructed holograph . . . .” DISCUSSION As we have noted, appellate counsel has filed a Delgadillo brief and asks the court to exercise its discretion to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel has identified the following possible issues that were considered in evaluating the potential merits of this appeal: Did the trial court err by reviewing historical facts when evaluating whether Franklin had made prima facie showing, and if so, was Franklin prejudiced by that error? We have reviewed the record consistent with the requirements of Wende and Anders. We have not discovered any potentially meritorious issues for reversal on appeal. Competent counsel has represented Franklin on this appeal.
3 DISPOSITION The order denying Franklin’s petition for resentencing under section 1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
Cites, in this corpus
- People v. Delgadillo S266305 · 2022-12-19
- People v. Wende Crim. 20851 · 1979-10-12