People v. Franklin CA1/3

Filed 8/23/22 P. v. Franklin CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, Plaintiff and Respondent, A161194 v. TYRIS LAMAR FRANKLIN, (Contra Costa County Super. Ct. No. 51103019) Defendant and Appellant.

A jury found Tyris Lamar Franklin guilty of first-degree murder and found true a firearm enhancement. At resentencing, the trial court struck the firearm enhancement pursuant to Penal Code1 section 12022.53, subdivision (h), and resentenced Franklin to one term of 25 years to life and ordered him to pay a probation report fee. On appeal, Franklin contends we should order the trial court to vacate the fee. He also argues the trial court erred by failing to credit him with all time served prior to resentencing. We agree on both counts, and shall remand to the trial court to modify the judgment accordingly. BACKGROUND In 2011, Franklin was charged with first-degree murder (Penal Code § 187), with an enhancement for personal use of a firearm (§ 12022.53, subds.

All statutory references are to the Penal Code, unless otherwise 1

indicated.

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(b)–(d).) Franklin was a minor at the time. A jury found him guilty of the charge and found true the firearm enhancement. The trial court sentenced him to 25 years to life for the murder and a consecutive 25-to-life term on the enhancement, for a total of 50 years to life in state prison. In September 2018, the parties stipulated to holding a hearing pursuant to Proposition 57,2 which entitled minors to a hearing before a juvenile court to determine whether it was appropriate for the minor to be charged in adult criminal court. (Welf. & Inst. Code, § 707, subd. (a)(1); People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 305.) After the Proposition 57 hearing, the juvenile court transferred Franklin’s case back to adult court, at which time the trial court set a resentencing hearing due to a recent amendment to section 12022.53 that provided trial courts the discretion to strike firearm enhancements imposed under that section.3 (See § 12022.53, subd. (h).) In October 2020, at the resentencing hearing, the trial court exercised its new discretion to strike the firearm enhancement, and it resentenced Franklin to a term of 25 years to life. This appeal followed.