People v. Franco CA4/1

Filed 6/6/25 P. v. Franco CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D084115

Plaintiff and Respondent,

v. (Super. Ct. No. SCD220281)

ABRAN FRANCO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Joan P. Weber, Judge. Reversed and remanded for resentencing. Cynthia M. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Daniel J. Hilton and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent. MEMORANDUM OPINION Abran Franco appeals from a judgment imposed on remand after we affirmed in part and reversed in part an order granting partial relief on his

petition to vacate two murder convictions under Penal Code section 1172.6.1 (People v. Franco (Nov. 15, 2022, D079397) [nonpub. opn.].) In this appeal, the parties agree that the matter must be remanded for another resentencing hearing because when the trial court imposed a 10-year consecutive sentence for a vicarious firearm enhancement under section 12022.53, subdivision (b), it was not aware of its discretion to impose a lesser one-year armed enhancement under section 12022, subdivision (a)(1). (People v. McDavid (2024) 15 Cal.5th 1015, 1030 (McDavid).) We agree with the parties and therefore reverse and remand for resentencing. As a result, it is premature for us to address Franco’s additional contention that the trial court violated the double jeopardy clause of the California Constitution by imposing a greater sentence after the prior appeal. In 2011, a jury convicted Franco of two counts of second-degree murder (§ 187, subd. (a)) based on two separate shooting incidents, along with true findings on vicarious firearm and gang enhancements. (§§ 186.22, subd. (b)(1), 12022.53, subds. (d) and (e)(1).) The court sentenced him to 80 years to life, consisting of 15 years to life for each of the second-degree murder counts, plus 25 years to life for each accompanying firearm enhancement. We affirmed the judgment. (People v. Franco (Dec. 10, 2012, D060354) [nonpub. opn.].) In 2021, the trial court granted Franco’s petition to vacate one of his murder convictions under section 1172.6, redesignated it as assault and disturbing the peace, denied Franco’s petition as to the other murder conviction, and resentenced Franco to an aggregate sentence of 18 years to life, consisting of a sentence of 15 years to life for the remaining murder conviction and a consecutive sentence of three years for the assault. The