People v. Franklin CA4/1 ( 2023 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
2 The facts of the offenses are adequately discussed in our earlier
opinion. We will not repeat them in this opinion.
2
habeas corpus. The document is almost incomprehensible. It does not
dispute that Franklin was the actual perpetrator of the offenses. Instead, it
offers a rambling assortment of statements and citations to various cases,
constitutional amendments without any explanation of how they apply to this
appeal from the denial of his petition for resentencing. We will quote fairly
typical phrases from the document simply to illustrate why we conclude it
does not raise any potentially meritorious issues for reversal on appeal. On
page 4 of the habeas petition Franklin states:
“The point of error of the specific denial in appealing the argumentative
denial of the rez nova extraordinary writ pertains to conflict of the choice of
laws arguendo the depecage [sic] penumbra renvol within Ca. Pen. Code
[section] [1172.6] . . . .” The supplemental brief begins with the phrase
“Prothonotary, [sic] Oyez; would you be ready, willing and able to forward the
engrossed strict and practically constructed holograph . . . .”
DISCUSSION
As we have noted, appellate counsel has filed a Delgadillo brief and
asks the court to exercise its discretion to review the record for error. To
assist the court in its review, and in compliance with Anders v. California
(1967) 386 U.S. 738 (Anders), counsel has identified the following possible
issues that were considered in evaluating the potential merits of this appeal:
Did the trial court err by reviewing historical facts when evaluating whether
Franklin had made prima facie showing, and if so, was Franklin prejudiced
by that error?
We have reviewed the record consistent with the requirements of
Wende and Anders. We have not discovered any potentially meritorious
issues for reversal on appeal. Competent counsel has represented Franklin
on this appeal.
3
DISPOSITION
The order denying Franklin’s petition for resentencing under section
1172.6 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
KELETY, J.
RUBIN, J.
4