People v. Franklin CA3

Filed 7/3/24 P. v. Franklin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C099919

Plaintiff and Respondent, (Super. Ct. No. 01F02563)

v.

TIMOTHY PRINCE FRANKLIN,

Defendant and Appellant.

Defendant Timothy Prince Franklin appeals following his resentencing pursuant to Penal Code1 section 1172.75. Defendant contends the trial court abused its discretion by declining to strike a five-year sentence enhancement imposed pursuant to section 667, subdivision (a). We see no abuse of discretion and affirm.

1 Undesignated statutory references are to the Penal Code.

1

FACTUAL AND PROCEDURAL BACKGROUND We described the underlying offenses and procedural background in our decision in defendant’s prior appeal, People v. Franklin (Dec. 14, 2006, C051778) [nonpub. opn.]: “In March 2001, a 14-year-old neighbor of defendant Timothy Prince Franklin let him into her home. When she dropped some coins onto the floor, defendant scooped them up. The girl reached for her coins, but he grabbed her legs, causing her to fall to the floor. Defendant then repeatedly pulled up the girl’s shirt, licked her breasts, pulled down her pants, licked her vagina, and put his penis in her vagina. “A jury convicted defendant of rape, sexual battery, and the commission of a lewd act on a 14-year-old victim. The jury also found defendant had a prior serious felony conviction (strike) and had served two prior prison terms. He was sentenced to . . . prison for an aggregate term of 32 years . . . four months. He appealed, and this court affirmed the judgment. “In May 2005, the trial court granted defendant’s petition for writ of habeas corpus, ordering resentencing because the [trial] court had imposed a fully consecutive term for the rape even though the controlling statute did not mandate such a term ( . . . § 667.6, subd. (d) . . . ), and the court did not state any separate reason supporting its discretionary choice of that term. “At resentencing in January 2006, defendant was committed to . . . prison for the same term, 32 years . . . four months. The trial court imposed a second-strike (doubled) term of [eight] years for sexual battery and consecutive terms of 16 years for rape, 16 months for the lewd act, five years for having the prior strike, and two years (one each) for having served two prior prison terms.” (People v. Franklin, supra, C051778, fns. omitted; see also People v. Franklin (Aug. 22, 2003, C040922) [nonpub. opn.].) In July 2023, the trial court issued an order informing the parties that the Department of Corrections and Rehabilitation had identified defendant as eligible for resentencing pursuant to section 1172.75. The parties agreed that section 1172.75 had