People v. Franklin CA1/1

Filed 4/6/21 P. v. Franklin CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publi- cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or- dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A159387 v. TERRELL MARQUIS FRANKLIN, (Contra Costa County Super. Ct. No. 5- Defendant and Appellant. 141281-6)

MEMORANDUM OPINION1 Defendant Terrell Marquis Franklin was charged with one count of murder (Pen. Code, § 187, subd. (a)2), one count of attempted murder (§§ 187, subd. (a), 664), shooting at an inhabited dwelling (§ 246), and first degree residential burglary (§§ 459, 460, subd. (a)). Personal firearm use enhancements were also alleged. Approximately one year later, he agreed to a negotiated disposition, pleading no contest to the attempted murder charge and admitting one of the firearm enhancements. The remaining charges and enhancements were dismissed. He was sentenced to 12 years in state prison.

This case is appropriately resolved by way of memorandum opinion 1

pursuant to pursuant to California Standards of Judicial Administration, section 8.1. 2 All further references are to the Penal Code unless otherwise

indicated.

1

Defendant subsequently filed a petition for resentencing pursuant to section 1170.95, which the trial court denied on the ground section 1170.95 does not apply to convictions for attempted murder. The only issue defendant raises on appeal is whether section 1170.95 applies to defendants, like him, who pleaded to an attempted murder charge to avoid going to trial for murder. Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.) amended murder liability under the felony-murder and natural and probable consequences theories. The bill redefined malice under section 188 to require that the principal acted with malice aforethought. Now, “[m]alice shall not be imputed to a person based solely on his or her participation in a crime.” (§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a defendant who was not the actual killer and did not have intent to kill is not liable for felony murder unless he or she “was a major participant in the underlying felony and acted with reckless indifference to human life, as described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).) Senate Bill No. 1437 (2017-2018 Reg. Sess.) also enacted section 1170.95, which authorizes “[a] person convicted of felony murder or murder under a natural and probable consequences theory [to] file a petition with the court that sentenced the petitioner to have the petitioner’s murder conviction vacated and to be resentenced on any remaining counts” so long as three conditions are met: “(1) A complaint, information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder or murder under the natural and probable consequences doctrine. [¶] (2) The petitioner was convicted of first degree or second degree murder following a trial or accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first degree or second degree murder. [¶] (3)