P. v. Franklin
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) 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.
Court 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, Court, as to him, remand the matter for resentencing.
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