People v. Franklin CA4/1

Filed 7/26/23 P. v. Franklin CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D081596

Plaintiff and Respondent,

v. (Super. Ct. No. SCE351716)

D’MARE ATTE FRANKLIN,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Affirmed. D’Mare Atte Franklin, in pro. per.; and Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2016, a jury convicted D’Mare A. Franklin of attempted murder

(Pen. Code,1 §§ 187, 664), and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury also found true firearm enhancements under section 12022.53, subdivision (c) and 12022.5, subdivision (a).

1 All further statutory references are to the Penal Code.

Franklin was sentenced to an indeterminate life term for the attempted murder, with a consecutive term of 20 years for the personal discharge of the firearm causing great bodily injury (§ 12022.53, subd. (c)). Franklin appealed and this court affirmed the convictions but remanded the case for resentencing on the firearm enhancements. (People v

Franklin (Mar. 26, 2018, D071453) [nonpub. opn.].)2 In 2022, Franklin filed a petition for resentencing under section 1172.6. The court appointed counsel, received briefing, reviewed the record of conviction, and held a hearing. At the hearing, the court concluded Franklin was prosecuted as the direct perpetrator of the offense. The jury verdicts established Franklin was the shooter and that he acted with the specific intent to kill. The court also noted the jury was not instructed on the theory of liability for the acts of another based on the natural and probable consequences. The court found Franklin had not stated a prima facie case for relief under section 1172.6 and denied the petition without issuing an order to show cause. Franklin filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to the direction provided in People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo) indicating counsel has not been able to identify any potentially meritorious issues for reversal on appeal. Counsel asks the court to exercise its discretion to independently review the record for error consistent with the procedure outlined in People v. Wende (1979) 25 Cal.3d 436 (Wende). We offered Franklin the opportunity to file his own brief on appeal. He has responded with a lengthy document which contains what appears to be a brief as well as a separate petition for