People v. Banks CA5

Filed 10/17/22 P. v. Banks 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, F084299 Plaintiff and Respondent, (Super. Ct. No. F08907825) v.

LARRY BANKS, OPINION Defendant and Appellant.

THE COURT * APPEAL from an order of the Superior Court of Fresno County. Adolfo M. Corona, Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Poochigian, Acting P. J., Detjen, J. and Snauffer, J.

STATEMENT OF APPEALABILITY This is an appeal from the denial of appellant Larry Banks’s petition for resentencing under Penal Code former section 1170.95 (now 1172.6),1 and is authorized by Penal Code section 1237, subdivision (b).2 (See Teal v. Superior Court (2014) 60 Cal.4th 595, 596.) STATEMENT OF THE CASE An information filed on March 24, 2009, charged Banks with murder (§ 187; count one). The information further alleged that Banks personally used a knife in the commission of count one (§ 12022, subd. (b)(1)). On September 23, 2009, a jury found Banks guilty of first degree murder and found the knife use enhancement true. The trial court sentenced Banks to life pursuant to section 1170.2 and former section 190. In Banks’s prior appeal, this court affirmed the judgment. (See People v. Banks (Mar. 17, 2011, F058831) [nonpub. opn.].) On June 29, 2021, through counsel, Banks filed a motion for a Franklin3 evidence preservation hearing. There does not appear to have been a ruling on that motion.4

1 Effective June 30, 2022, Penal Code section 1170.95 was renumbered section 1172.6, with no change in text (Stats. 2022, ch. 58, § 10). 2 Unlabeled statutory references are to the Penal Code. 3 People v. Franklin (2016) 63 Cal.4th 261. 4 The record on appeal does not include a ruling on the motion. However, a review of the Fresno County Superior Court’s online docket, which is available to the public, shows that on April 11, 2022, Banks filed a motion to dismiss his request for a Franklin hearing. We are not taking judicial notice of this purported April 11, 2022, filing, or of any other superior court records. We bring this April 11, 2022, filing to Banks’s attention as a courtesy to inform him that the status of his Franklin hearing request is uncertain. In any event, it should be understood that this appeal is only from the denial of the section 1172.6 motion, and that it does not involve the motion for a Franklin hearing.