People v. Franklin CA3

Filed 8/10/22 P. v. Franklin CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE,

Plaintiff and Respondent, C094058

v. (Super. Ct. No. 07F10729)

LEROME FRANKLIN,

Defendant and Appellant.

A jury convicted defendant Lerome Franklin in 2007 of attempted murder and conspiracy to commit murder, and the trial court sentenced defendant to 50 years to life in prison for the conspiracy count plus 25 years to life for a firearm enhancement. The trial court imposed but stayed an indeterminate term for the attempted murder count.

1

In 2020, defendant petitioned the trial court for resentencing under Penal Code section 1170.95.1 After appointing counsel (who was later replaced by retained counsel), the trial court denied the petition as failing to make a prima facie case for relief. The trial court concluded that former section 1170.95 did not apply to attempted murder and conspiracy to commit murder. Moreover, after reviewing the record of conviction, the trial court stated that, in any event, the jury necessarily found defendant had an intent to kill, which also removed the crimes from the ambit of former section 1170.95. Defendant now contends (1) he is eligible for section 1170.95 relief for his conspiracy to commit murder conviction, (2) he is eligible for section 1170.95 relief for his attempted murder conviction, and (3) he was entitled to personally appear at the hearing. We conclude defendant is not entitled to section 1170.95 relief. In so concluding, we do not determine whether defendant was entitled to personally appear at the hearing because any error was harmless beyond a reasonable doubt. We will affirm the trial court’s order denying the petition for resentencing. BACKGROUND As reflected in our 2010 opinion on direct appeal from the judgment, defendant, while in jail for an altercation with Timothy Hurst (aka T-Money), called Floyd Martin and told him to “get on Money.” Martin shot Hurst several times, but Hurst survived. (People v. Martin (Nov. 30, 2010, C060683) [nonpub. opn.] (Martin).) The trial court sentenced defendant to 50 years to life for the conspiracy count with an additional 25 years to life for a firearm enhancement under section 12022.53, subdivisions (d) & (e).