People v. Franklin CA3

Filed 2/29/24 P. v. Franklin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE,

Plaintiff and Respondent, C098284

v. (Super. Ct. No. 22CF03754)

LESLEY WILLIAM FRANKLIN, JR.,

Defendant and Appellant.

Defendant Lesley William Franklin, Jr., pleaded no contest to felony possession of a controlled substance. He waived a jury or court trial for the determination of aggravating factors and agreed the trial court could impose the lower, middle, or upper term. The trial court sentenced him to the upper term of three years. Defendant did not object in the trial court to the trial court’s findings of aggravating factors or to the upper term sentence. Defendant now contends the trial court erred under Penal Code section 11701 in imposing the upper term sentence. We conclude defendant forfeited the contention by failing to object in the trial court. Accordingly, we will affirm the judgment.

1 Undesignated statutory references are to the Penal Code.

1

BACKGROUND In January 2023, defendant pleaded no contest to felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)). As part of the plea agreement, defendant acknowledged that the trial court could not impose a sentence exceeding the middle term unless aggravating factors justified the upper term. Defendant waived his right to a jury or court trial where any facts underlying an aggravating factor must be proven beyond a reasonable doubt. Defendant agreed that the trial court could find aggravating factors based on the probable cause declaration and police reports, and acknowledged that the trial court could impose the lower, middle, or upper term. Defendant also agreed that if he believed the summary in the probation report was incomplete or incorrect, he could submit additional portions from the probable cause declaration and police reports. A presentencing probation report stated that defendant had 12 prior felony convictions and 12 prior misdemeanor convictions. The probation report also stated that defendant served prior prison terms in 1977, 1983, 1999, 2005, 2011, 2018, and 2020. The probation report listed the following aggravating factors: (1) the crime involved a large quantity of contraband (Cal. Rules of Court, rule 4.421(a)(10)); (2) the defendant’s prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); (3) defendant was on probation, mandatory supervision, postrelease community supervision, or parole when the crime was committed; and (4) the defendant’s prior performance on probation, mandatory supervision, postrelease community supervision, or parole was unsatisfactory. The probation report did not list any mitigating factors. The probation report recommended imposition of the upper term because this was defendant’s 13th felony conviction, he had more than 44 parole and probation violations, he was on parole when he committed the instant offense, and he served numerous prison terms. Defendant filed proposed corrections to the probation report but did not contest the number of convictions or that he served prior prison terms.