P. v. Franklin

Filed 3/16/07 P. v. Franklin CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Los Angeles County, Steven Suzukawa, Judge. Affirmed in part, vacated in part, and remanded with directions as to Christopher Franklin. Modified and, as modified, affirmed with directions as to Charles Franklin.

Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant Christopher Franklin.

Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant Charles Franklin.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Christopher Franklin and Charles Franklin appeal from judgments entered following a court trial. The court convicted Christopher Franklin on count 1 attempted willful, deliberate, and premeditated murder (Pen. Code, 187, 189)[1]with findings that a principal was armed with a firearm ( 12022, subd. (a)(1)), a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), count 2 assault with a semiautomatic firearm ( 245, subd. (b)) with a finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), and count 3, assault upon a peace officer with a semiautomatic firearm ( 245, subd. (d)(2)) with findings that appellant personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (b)). The court sentenced Christopher Franklin to prison for 19 years.

The court convicted Charles Franklin on count 1 attempted willful, deliberate, and premeditated murder ( 187, 189) with findings that a principal was armed with a firearm ( 12022, subd. (a)(1)), a principal personally used a firearm ( 12022.53, subds. (b) & (e)(1)), and the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), count 2 - assault with a semiautomatic firearm ( 245, subd. (b)) with a finding that the offense was committed for the benefit of a criminal street gang ( 186.22, subd. (b)), and count 4 - evading a police officer (Veh. Code, 2800.2, subd. (a)). The court sentenced Charles Franklin to prison for 16 years 8 months.

We accept respondents concession that, as to each appellant, multiple punishment on counts 1 and 2 violated Penal Code section 654. Moreover, there is no need to decide Christopher Franklins claims that his abstract of judgment must be amended in various respects. Since his multiple punishment claim is valid, and since, as respondent concedes, the trial court erroneously imposed a 10-year Penal Code section 186.22, subdivision (b), gang enhancement as to count 3 even though the trial court found not true that enhancement, we will, as to him, remand the matter for resentencing.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on January 17, 2005, Christopher Franklin (Christopher) and his brother Charles Franklin (Charles) committed a drive-by shooting, attempting to murder Kenneth Woods for the benefit of a criminal street gang. In particular, Christopher, using a semiautomatic weapon, fired about 13 shots from a car driven by Charles, and a bullet struck Woods.

Los Angeles County Sheriffs Sergeant Elizer Vera heard the gunshots, saw the car leave the area, and followed it in his patrol car. Vera turned on his patrol cars overhead lights and siren. Christopher leaned out the right front passenger window of the car he was in, pointed a Tech-9 semiautomatic assault weapon at Vera, and tried to shoot him. Christopher manipulated the weapon and withdrew back in the car. He later leaned out the window again and, using the Tech-9, tried to shoot Vera. Christopher again withdrew, and later threw the Tech-9 from the car.

CONTENTIONS

Christopher claims (1) multiple punishment on counts 1 and 2 violated Penal Code section 654, (2) the abstract of judgment must be corrected to reflect that, as to count 1, the court imposed a four-year, instead of a one-year, enhancement pursuant to Penal Code section 12022.5, subdivision (a)(1), and (3) the abstract of judgment must be corrected to reflect that, as to count 3, the court imposed a Penal Code section 12022.5, subdivision (a)(1), enhancement and not a Penal Code section 12022.5, subdivision (b), enhancement. Christopher also claims the court erred by imposing a 10-year Penal Code section 186.22, subdivision (b), gang enhancement as to count 3. Charles claims multiple punishment on counts 1 and 2 violated Penal Code section 654.

DISCUSSION

1. As to Christopher, Multiple Punishment on Counts 1 and 2 Was Improper, as Was Imposition of a Gang Enhancement as to Count 3.

a. Pertinent Facts.

As to Christopher, the court found not true a Penal Code section 186.22, subdivision (b)(1), gang enhancement allegation as to count 3. The court initially sentenced Christopher to prison for 19 years as follows. The court imposed the five-year lower term on count 1, plus a four-year middle term for a Penal Code section 12022.5, subdivision (a)(1), enhancement,[2]plus ten years for the gang enhancement. As to count 2, the court imposed a concurrent six-year middle term. As to count 3, the court imposed a seven-year middle term, plus a four-year middle term pursuant to Penal Code section 12022.5, to be served concurrently.

However, following a later unreported discussion, the court stated it misspoke and [t]he court meant to make count 3 the principal term, which would be the low base term of five years; four years, mid term, for the 12022.5, allegation; and count 1 would be the concurrent term, although the court would have to still impose ten years for the gang enhancement, so the sentence is the same.

Christophers abstract of judgment reflects the court imposed a one-year Penal Code section 12022.5, subdivision (a)(1) enhancement as to count 1. His abstract of judgment also reflects the court imposed a Penal Code section 12022.5(B) enhancement as to count 3.

b. Analysis.

There is no dispute that as a result of the courts resentence (considered in light of the initial sentence), Christophers final sentence was 19 years in prison, representing, as to count 3 (the principal term), the 5-year lower term on that count, plus a 4-year middle term pursuant to Penal Code section 12022.5, subdivision (a)(1), plus 10 years pursuant to a Penal Code section 186.22, subdivision (b), gang enhancement. As to count 1, Christophers final sentence, as orally pronounced, was a 5-year lower term, plus a 4-year middle term pursuant to Penal Code section 12022.5, subdivision (a)(1), plus a 10-year gang enhancement, and count 1 was a concurrent term. As to count 2, Christophers final sentence was a concurrent 6-year middle term.

Christopher claims multiple punishment on counts 1 and 2[3]violated Penal Code section 654.[4] Respondent concedes the issue. We accept respondents concession. (Cf. People v. Parks (1971) 4 Cal.3d 955, 959, 961, fn. 3; People v. Meriweather (1968) 263 Cal.App.2d 559, 561-564.)

Christopher claims the abstract of judgment must be corrected to reflect that, as to count 1, the court imposed a four-year, instead of a one-year, enhancement pursuant to Penal Code section 12022.5, subdivision (a)(1). He also claims the abstract of judgment must be corrected to reflect that, as to count 3, the court imposed a Penal Code section 12022.5, subdivision (a)(1), enhancement and not a Penal Code section 12022.5, subdivision (b), enhancement.

There is no need to address the above two claims since, for the reasons discussed below, this matter will be remanded for resentencing. We are confident that, following remand, the trial court will forward to the Department of Corrections an amended abstract of judgment reflecting correct references to Penal Code sections and subdivisions, and to imposed terms.

Respondent concedes the trial courts imposition of the 10-year gang enhancement as to count 3 was error since the trial court previously found that enhancement allegation not true. The result was an unauthorized sentence which may be corrected at any time. (Cf. People v. Huff (1990) 223 Cal.App.3d 1100, 1106.)

As a matter of remedy as to Christopher, the trial courts sentencing scheme suggests the court wanted his total prison sentence to be 19 years. Accordingly, we will vacate Christophers sentence and remand his case for further sentencing. (Cf. People v. Menius (1994) 25 Cal.App.4th 1290, 1294-1295; People v. Stevens (1988) 205 Cal.App.3d 1452, 1455-1458; People v. Savala (1983) 147 Cal.App.3d 63, 66-70.) We express no opinion concerning the manner in which the court should exercise its discretion or what Christophers sentence should be.

2. As to Charles, Multiple Punishment on Counts 1 and 2 Was Improper.

Charles claims multiple punishment on counts 1 and 2 violated Penal Code section 654. Again, respondent concedes the issue, and we accept the concession. (Cf. People v. Parks, supra, 4 Cal.3d at pp. 959, 961, fn. 3; People v. Meriweather, supra, 263 Cal.App.2d at pp. 561-564.)

DISPOSITION

The judgment as to Christopher Franklin is affirmed, except that Christophers final sentence and each of its components are vacated and the matter is remanded to the trial court for resentencing consistent with this opinion. The judgment as to Charles Franklin is affirmed, except that the judgment is modified by staying execution of sentence on his conviction for assault with a semiautomatic firearm (count 2) pending completion of his sentence on his remaining convictions, such stay then to become permanent, and, as modified, the judgment is affirmed. The trial court is directed to

forward to the Department of Corrections an amended abstract of judgment as to each appellant.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P.J.

CROSKEY, J.

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[1] Subsequent statutory references are to the Penal Code.

[2] On January 27, 2006, the parties agreed that the court amend the information to reflect Penal Code section 12022.5 allegations as to counts 1 and 3, instead of Penal Code section 12022.53, subdivision (b) allegations as to those counts. The court indicated it would permit the amendment, but inadvertently referred to 12022.53(a)(1) instead of 12022.5. There is no dispute the information was amended to reflect section 12022.5 allegations as to counts 1 and 3, instead of section 12022.53, subdivision (b) allegations as to those counts.

[3] Although Christopher, in his opening brief, refers to count 3, assault with a semiautomatic firearm, respondent correctly observes that assault with a semiautomatic firearm was the charge in count 2.

[4] Penal Code section 654 states, in relevant part, (a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.