People v. Franklin CA5

Filed 1/15/14 P. v. Franklin CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F064905

Plaintiff and Respondent, (Kings Super. Ct. No. 11CM7577)

v. OPINION TYRELL LOVELL FRANKLIN,

Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kings County. James T. Laporte, Judge. Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Kane, J. and Poochigian, J.

PROCEDURAL BACKGROUND Defendant Tyrell Lovell Franklin was charged with the following crimes: assault by an inmate upon a correctional officer with force likely to cause great bodily injury (count 1 – Pen. Code,1 § 4501); assaulting a correctional officer with a deadly weapon (count 2 – § 4501); battering a person not in custody by an inmate (count 3 – § 4501.5); battery resulting in serious bodily injury (count 4 – § 243, subd. (d)); and resisting an executive officer (count 5 – § 69.) It was further alleged that defendant had suffered a prior serious felony conviction (§§ 667, subds. (a)(1), (b)-(i); 1170.12, subds. (a)-(d)), committed the offenses while confined in a state prison (§ 1170.1, subd. (c)).2 A great bodily injury enhancement (§ 12022.7, subd. (a)) was alleged as to all counts. On counts 1 and 2, the jury convicted defendant of the lesser-included offense of misdemeanor assault. (§ 240.) The jury found defendant guilty as charged on counts 3, 4 and 5. The only great bodily injury enhancement the jury found true was the enhancement on count 4 – battery resulting in serious bodily injury. (§ 243, subd. (d).) The court sentenced defendant to an aggregate term of 16 years in prison. The court refused defense counsel’s request to stay execution of the punishment on count 4 under section 654. The court stated the following at the sentencing hearing: