People v. Franklin CA2/4 ( 2024 )

Filed 10/2/24 P. v. Franklin CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PEOPLE OF THE STATE OF B328912
CALIFORNIA,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. A453505-02)
v.
BENJAMIN FRANKLIN,
Defendant and Appellant.
APPEAL from judgment of the Superior Court of Los
Angeles County, Joseph R. Porras, Judge. Affirmed.
James S. Donnelly-Saalfield, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, Thomas C. Hsieh, Deputy Attorney General,
for Plaintiff and Respondent.
INTRODUCTION
In December 1981, Harold Williams (Williams) was shot to
death, his jewelry and car were stolen, and his home was set on
fire. In 1982, a jury convicted appellant Benjamin Franklin
(appellant) of first degree murder (Pen. Code, § 1871), robbery
(§ 211), and grand theft auto (§ 487.3). In 2020, appellant filed a
petition for resentencing under former Penal Code, section
1170.95 (now § 1172.6).2 After issuing an order to show cause
and conducting an evidentiary hearing, the Superior Court
denied the petition, finding respondent the People of the State of
California (the People) proved beyond a reasonable doubt that
appellant was a major participant in the robbery and acted with
reckless indifference to human life. Appellant challenges the
sufficiency of evidence supporting the resentencing court’s
findings, contends he was denied the effective assistance of
counsel, and argues the court’s theory of felony murder violated
his Sixth Amendment right to a jury trial. We affirm.
BACKGROUND
A. Information and Trial Evidence
We recite the factual background from the materials
considered by the resentencing court during the evidentiary
hearing. Those materials include the reporter’s and clerk’s
1 All statutory references in this opinion are to the Penal Code.
2 In 2022, former Penal Code section 1170.95 was renumbered
1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) We
refer to the current statutory numbering in this opinion.
2
transcripts from appellant’s trial.3 On December 7, 1981,
Williams’s body was found in a pond in his backyard. Appellant
and his brothers, Roy Franklin (Roy) and Kirk Franklin (Kirk) 4,
were charged with murder, robbery, arson, and grand theft auto.
The information alleged special circumstances—appellant’s
personal use of a firearm during the commission of the murder
and robbery.
Until his death on December 6, 1981, Williams lived in a
home on 80th Street in Los Angeles County. He had known Roy
for about four years.
Certain items of Williams’s belongings were described at
trial. For years, Williams had “continuously” worn a distinctive
gold and red ring, including on the evening before his death. He
owned a white Volkswagen bug that he parked in his driveway.
Alex Franklin (Alex), the father of appellant and his
brothers, testified that he lived in a house on 106th Street.
Appellant kept his clothes there, sometimes slept there, and
called it his “home.” Before the murder, Alex owned a .38 caliber
3 The People requested we take judicial notice of the appellate
record from the direct appeal from his conviction (clerk’s and reporter’s
transcripts and our opinion in People v. Franklin (Jan. 13, 1984, 2
Crim. 43628) [nonpub. opn.] (Franklin I).) The same documents were
on the CD that was marked as Exhibit 1 and received into evidence at
the section 1172.6 evidentiary hearing. Since the documents are
already part of the record, we deny the request for judicial notice as
superfluous. (Orange County Water Dist. v. Public Employment
Relations Bd. (2017) 8 Cal.App.5th 52, 59 [where documents were
already in record, request for judicial notice was “superfluous and
moot”].)
4 Because some of the persons described in this opinion share
surnames, we refer to them by their first names. This is to avoid
confusion, and no disrespect is intended.
3
handgun, but it was stolen in early December. He saw appellant
carrying the gun the week before and on the day of the murder.
The night of the murder, Alex saw appellant, Roy, and Kirk
depart from his home around 7 p.m. Before 9 p.m., a neighbor
saw three young Black men in Williams’s yard, and she
recognized Roy.
Appellant described what happened inside of Williams’s
home in a post-arrest interview. Appellant said he entered the
home armed with a snub-nosed .38 caliber gun. He said there
was a man in the home who wore a black beanie and “kept
saying, ‘Don’t kill me, don’t kill me, don’t kill me.’”
Williams’s home was set on fire. A neighbor heard someone
start the Volkswagen and drive away around 11 p.m. Appellant
told a sheriff’s deputy that he and Kirk stole the car.
On December 7, 1981, sheriff’s deputies found Williams’s
body in a backyard pond, wrapped in a blood-stained rug and a
sheet, along with a black beanie and other items. A bag of cans
and gardening equipment were piled on the body. Blood spots
were found inside the house. The next day, appellant pawned
Williams’s ring.
During a search of Alex’s home on December 9, sheriff’s
deputies recovered two spent .38 caliber cartridges. The same
day, appellant was seen driving a white Volkswagen and in
possession of the same handgun that would later be confiscated
upon his arrest. Fearing he would be implicated in the murder,
appellant drove to Bakersfield. He then decided to return to Los
Angeles and was arrested on December 10, 1981, with a loaded
.38 caliber gun in his pocket. Deputies confiscated the gun and
six live .38 caliber rounds of ammunition.
4
It was stipulated that Williams died from a gunshot wound
to the back of his head. A firearms examiner analyzed the gun
taken from appellant, the live rounds, the spent casings, and the
bullet retrieved from Williams’s body. He opined it was
“probable” the gun fired the bullet retrieved from Williams’s
body.
Defense witnesses attempted to establish an alibi.
Appellant, his sister, and a friend testified he was at Alex’s home
from around 7 p.m. to midnight on the night of the murder.
Appellant admitted he pawned Williams’s ring but testified he
found it at Alex’s home days before the murder. He admitted he
owned the gun that deputies confiscated.
In 1982, a jury convicted appellant of first degree murder
on the basis of the felony murder rule, robbery, and grand theft
auto; he was acquitted of the arson charge. The jury found true
the special circumstance that he personally used a gun during
the commission of the robbery; however, it found not true the
allegation he used a gun during the commission of the murder.
Appellant appealed from the judgment, and a different panel of
the court affirmed. (Franklin I (Jan. 13, 1984, 2 Crim. 43628).)
B. Section 1172.6 Proceeding
In 2020, appellant filed a petition for resentencing under
section 1172.6. After finding the petition alleged a prima facie
case for relief, the resentencing court issued an order to show
cause.5 An evidentiary hearing was conducted, at which the
5 While the petition was pending, appellant was paroled and
released from custody. According to his counsel, appellant faced
lifetime probation for the murder conviction and wanted to pursue the
5
court admitted copies of the reporter’s and clerk’s transcripts
from trial and the records of conviction of two prior robberies
involving appellant. The resentencing court denied appellant’s
petition and found the People proved, beyond a reasonable doubt,
that appellant remained guilty under the current version of the
felony murder law as a major participant in the robbery who
acted with reckless disregard for human life.
DISCUSSION
Appellant asserts three primary errors on appeal. First, he
contends the evidence did not support a finding that he was a
major participant in the robbery acting with reckless indifference
to human life. Second, he contends he was denied effective
assistance of counsel because his attorney failed to object to the
admission of records of conviction for two prior robberies. Third,
he contends the court’s theory of felony murder violated his Sixth
Amendment right to a jury trial.
A. Governing Law: Section 1172.6
In Senate Bill No. 1437 (2017–2018 Reg. Sess.), “the
Legislature significantly narrowed the scope of the felony-murder
rule” and “created a path to relief for defendants who had
previously been convicted of murder on a felony-murder theory
petition. The People did not object, and the resentencing court
proceeded on the assumption appellant has lifetime probation that
would be “count[ed] as actual custody.” No one contends this appeal is
moot, and we note that parole and probation have been treated as
constructive custody in other contexts. (See, e.g., People v. Villa (2009)
45 Cal.4th 1063, 1069 [habeas corpus relief has been expanded “‘to
persons who are determined to be in constructive custody,’” such as
“‘one on parole’” or on “‘probation’”].)
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but who could not have been convicted under the new law.”
(People v. Strong (2022) 13 Cal.5th 698, 703 (Strong).)
Resentencing is available “if the defendant neither killed nor
intended to kill and was not ‘a major participant in the
underlying felony [who] acted with reckless indifference to
human life, as described in subdivision (d) of [Penal Code] section
190.2.’” (Ibid; § 189, subd. (e); § 1172.6.)
Once a petitioner establishes a prima facie case for relief
under section 1172.6 and the Superior Court issues an order to
show cause, an evidentiary hearing is conducted. (Strong, supra,
13 Cal.5th at pp. 708–709.) The prosecution has the burden of
proving “‘beyond a reasonable doubt, that the petitioner is guilty
of murder or attempted murder under California law as amended
by the changes to Section 188 or 189 made effective January 1,
2019. . . .’” (People v. Cooper (2022) 77 Cal.App.5th 393, 411.)
The trial court acts as an independent fact finder and may
“consider evidence previously admitted at any prior hearing or
trial that is admissible under current law, including witness
testimony, stipulated evidence, and matters judicially noticed.”
(People v. Cody (2023) 92 Cal.App.5th 87, 102, 110, original italics
omitted; § 1172.6, subd. (d)(3).) The trial court “must review all
the relevant evidence, evaluate and resolve contradictions, and
make determinations as to credibility, all under the reasonable
doubt standard . . . .” (People v. Clements (2022) 75 Cal.App.5th
276, 298.)
Our high court substantially clarified the law governing
findings under Penal Code section 190.2, subdivision (d) in People
v. Banks (2015) 61 Cal.4th 788 (Banks) and People v. Clark (2016)
63 Cal.4th 522 (Clark). (People v. Oliver (2023) 90 Cal.App.5th
466, 478.) “‘Banks elucidated what it means to be a major
7
participant and, to a lesser extent, what it means to act with
reckless indifference to human life, while Clark further refined
the reckless indifference inquiry.’” (Ibid.)
Banks considered “under what circumstances an accomplice
who lacks the intent to kill may qualify as a major participant.”
(Banks, supra, 61 Cal.4th at p. 794.) Our high court identified
factors that should be considered in making that determination:
“What role did the defendant have in planning the criminal
enterprise that led to one or more deaths? What role did the
defendant have in supplying or using lethal weapons? What
awareness did the defendant have of particular dangers posed by
the nature of the crime, weapons used, or past experience or
conduct of the other participants? Was the defendant present at
the scene of the killing, in a position to facilitate or prevent the
actual murder, and did his or her own actions or inaction play a
particular role in the death? What did the defendant do after
lethal force was used?” (Id. at p. 803, fn. omitted.) However,
whether a defendant acted as a major participant depends on the
totality of the circumstances. (Id. at p. 802.) Moreover, “[n]o one
of these considerations is necessary, nor is any one of them
necessarily sufficient. All may be weighed in determining the
ultimate question, whether the defendant’s participation ‘in
criminal activities known to carry a grave risk of death’ [citation]
was sufficiently significant to be considered ‘major.’ [Citation.]”
(Id. at p. 803.)
“Reckless indifference to human life is ‘implicit in
knowingly engaging in criminal activities known to carry a grave
risk of death.’ [Citation.]” (In re Scoggins (2020) 9 Cal.5th 667,
676–677 (Scoggins).) “Examples include ‘the person who tortures
another not caring whether the victim lives or dies, or the robber
8
who shoots someone in the course of the robbery, utterly
indifferent to the fact that the desire to rob may have the
unintended consequence of killing the victim as well as taking
the victim’s property.’ [Citation.]” (Ibid.) “Reckless indifference
‘encompasses a willingness to kill (or to assist another in killing)
to achieve a distinct aim, even if the defendant does not
specifically desire that death as the outcome of his actions.’
[Citation.]” (Id. at pp. 676–677.)
In Clark, our high court listed factors to consider when
determining whether reckless indifference existed: “Did the
defendant use or know that a gun would be used during the
felony? How many weapons were ultimately used? Was the
defendant physically present at the crime? Did he or she have
the opportunity to restrain the crime or aid the victim? What
was the duration of the interaction between the perpetrators of
the felony and the victims? What was the defendant’s knowledge
of his or her confederate’s propensity for violence or likelihood of
using lethal force? What efforts did the defendant make to
minimize the risks of violence during the felony?” (Scoggins,
supra, 9 Cal.5th 667, 677 [summarizing Clark factors].) No
single consideration is necessary, nor is any one of them
necessarily sufficient. (Clark, supra, 63 Cal.4th at p. 618.)
We review the trial court’s denial of a section 1172.6
petition for substantial evidence. (People v. Reyes (2023) 14
Cal.5th 981, 988.) We review the record in the light most
favorable to the judgment below to determine whether it discloses
substantial evidence—that is, evidence which is reasonable,
credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
(Ibid.) “‘We presume, in support of the judgment, the existence of
9
every fact the trier of fact could reasonably deduce from the
evidence, whether direct or circumstantial.’ [Citation.]” (In re
Harper (2022) 76 Cal.App.5th 450, 460.) We do not resolve
credibility issues or conflicts in the evidence. (People v. Schell
(2022) 84 Cal.App.5th 437, 442 (Schell).)
C. Felony Murder Under Current Law
1. Major Participant
In deciding appellant was a major participant in the
robbery, the resentencing court focused primarily on his role in
the criminal enterprise, his use and supply of a lethal weapon,
his presence at Williams’s home, his facilitation of the murder,
and his conduct after lethal force was used. The court found
appellant went to Williams’s home carrying a .38 caliber firearm,
which he never loaned out and usually carried in his front pocket.
The spent casings that law enforcement retrieved from Alex’s
home and the bullet that killed Williams were .38 caliber.
Appellant had “what appears to be what is the murder weapon
both before and after,” indicating he supplied the weapon. After
the killing, appellant took the victim’s vehicle, pawned the
victim’s ring, and fled with his brother to Bakersfield.
Indeed, appellant admitted he took his gun into Williams’s
home, and the jury found true the allegation that appellant
personally used a gun during the commission of the robbery.
Thus, substantial evidence identified by the court and found in
the record support the finding that appellant was a major
participant in the robbery.
Appellant argues that some Banks factors weigh against
finding that a defendant was a major participant: (1) there was
no evidence appellant engaged in planning the robbery; (2) too
10
much emphasis was placed on the jury’s finding he personally
used a firearm during the robbery; (3) there was no evidence that
appellant was aware of prior violent crimes committed by his
brothers; (4) there was no evidence appellant was in a position to
either facilitate or prevent the killing; and (5) appellant’s conduct
after the killing did not support an inference he was a major
participant in the robbery.
Appellant fails to recognize that not all Banks factors must
weigh in favor of a major participant finding. (Banks, supra, 61
Cal.4th at p. 803.) Appellant is essentially requesting that we
reweigh the evidence in his favor and draw inferences adverse to
the resentencing court’s ruling. This violates the principles of
substantial evidence review, and we decline to do so. (See People
v. Jones (2022) 86 Cal.App.5th 1076, 1090 [rejecting appellant’s
argument that “undue emphasis” was placed on his presence at
crime scene and actions after the shooting; “Under a substantial
evidence review . . . we do not reweigh the evidence”].)
We note that appellant is incorrect in contending there was
no evidence of his involvement in planning the crimes. Although
unmentioned by the resentencing court, appellant’s trial
testimony shows he knew his brothers were targeting Williams.
Appellant testified that before the crime occurred, Roy told him
that he was going to seek “vengeance” because there had been an
incident between Williams and Kirk four weeks earlier.
“Vengeance” was a revealing choice of words, as it suggests
severe retribution. (See People v. Belton (1980) 105 Cal.App.3d
376, 381 [specific intent to murder was not shown absent “threats
of personal injury, vows of vengeance, conversations about
contemplated personal violence, or earlier attempts at murder,”
italics added.] Appellant, after learning his brothers’ plan, joined
11
them, adding his physical presence and a lethal weapon to their
mission. This conduct also supported a finding that appellant
was a major participant in the robbery that led to Williams’s
death.
2. Reckless Indifference to Human Life
The “major participant” and “reckless indifference to
human life” “‘significantly overlap . . . , for the greater the
defendant’s participation in the felony murder, the more likely
that he acted with reckless indifference to human life.’
[Citation.]” (Clark, supra, 63 Cal.4th at pp. 614–615.) The
reckless indifference factors include the defendant’s use or
knowledge a gun would be used during the felony and defendant’s
physical presence at the crime. (See Scoggins, 9 Cal.5th at
p. 677.) They also include whether the defendant had an
“opportunity to restrain the crime or aid the victim,” the
“duration of the interaction between” the defendant and the
victim, and what efforts the defendant made to minimize the risk
of violence during the crime. (Ibid.)
In deciding appellant acted with reckless indifference, the
resentencing court relied on the evidence supporting the major
participant findings. In addition, the court pointed to appellant’s
bringing a gun to Williams’s home, his “going in with two
others[, s]o basically making it a three on one,” the absence of
evidence of any effort to minimize the violence, his participation
in disposing of Williams’s body (“That doesn’t seem to be a one-
person job”), and evidence the house was “lit on fire at some
point.”
The record also contains other evidence indicating
appellant acted with reckless indifference. He knew in advance
12
his brothers intended to seek vengeance against Williams, and he
fortified the enterprise with a firearm. Once the brothers went to
Williams’s home, they stayed for at least two hours. During that
time, appellant heard the man wearing the black beanie
repeatedly plead, “don’t kill me,” but he did not remove himself or
his gun from the scene. Rather than rendering assistance or
calling for aid, he acquired the ring Williams was wearing the
night before his death. (People v. Mitchell (2022) 81 Cal.App.5th
575, 594 (Mitchell) [“While the victim lay bleeding, Mitchell’s
only manifested concern was to rob the man. [¶] That was cold”].)
Like the Mitchell defendant, appellant’s “action and inaction
showed indifference.” (Ibid.) Thus, the record provides
substantial evidence to support the resentencing court’s finding
that reckless indifference was proved beyond a reasonable doubt.
In summary, the trial court did not err in finding appellant
was a major participant in the robbery who acted with reckless
indifference to human life. Because we affirm the order denying
appellant’s section 1172.6 petition based on felony murder, we
need not reach the People’s alternative position that substantial
evidence established appellant’s guilt as an aider and abettor of
express malice murder.
D. Ineffective Assistance of Counsel
As part of its evidentiary showing below, the People offered
records of appellant’s convictions for two prior robberies in which
he used a gun. The records, the People argued, showed appellant
was “aware of the dangerousness” of the robbery because “he has
caused the danger in the past.” (See Banks, supra, 61 Cal.4th at
p. 794 [major participant factors include defendant’s awareness of
particular dangers posed by the nature of the crime and weapons
13
used].) The records were admitted without objection by defense
counsel. Appellant now contends his counsel was ineffective for
failing to object.
It is presently unclear whether the statutory right to
counsel under section 1172.6 includes the right of a petitioner to
raise an ineffective assistance claim on appeal. (See People v.
Delgadillo (2022) 14 Cal.5th 216, 222 [appeal of denial of petition
for postconviction relief under former section 1170.95 “[did] not
implicate a constitutional right to counsel”].) We need not decide
this issue, however, as we find defendant’s claim to be meritless.
A defendant claiming ineffective counsel must demonstrate
counsel’s inadequacy. “‘To satisfy this burden, the defendant
must first show counsel’s performance was deficient, in that it fell
below an objective standard of reasonableness under prevailing
professional norms. Second, the defendant must show resulting
prejudice, i.e., a reasonable probability that, but for counsel’s
deficient performance, the outcome of the proceeding would have
been different. When examining an ineffective assistance claim,
a reviewing court defers to counsel’s reasonable tactical decisions,
and there is a presumption counsel acted within the wide range
of reasonable professional assistance.’ [Citation.]” (People v.
Bona (2017) 15 Cal.App.5th 511, 517; Strickland v. Washington
(1984) 466 U.S. 668, 687, 694 (Strickland).) “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice, . . . that course should be followed.”
(Strickland, supra, 466 U.S. at p. 697.)
We need not decide whether the records of conviction were
inadmissible and warranted an objection by appellant’s counsel.
Appellant has not overcome the presumption that his counsel
14
acted within the wide range of reasonable professional
assistance, and he has not demonstrated prejudice.
First, the arguments made by appellant’s counsel show his
tactical reason for electing to argue the effect of the prior
robberies instead of objecting to the evidence’s admissibility.
Defense counsel drew a distinction between the prior robberies
and the robbery of Williams: “[T]he one thing the court should
note out of those two robberies is basically this. There was never
a homicide. No one died. The gun wasn’t discharged in any of
those instances.” In essence, counsel urged that the records
showed that appellant lacked awareness that an armed robbery
would result in murder because his prior armed robberies were
nonfatal. While reasonable minds might differ on the wisdom of
this strategy and its obvious risks, we cannot say it was
irrational for counsel to allow the records to be admitted and then
ask the court to draw an inference favorable to his client. Thus,
appellant has not shown his counsel fell below an objective
standard of reasonableness.
Second, appellant has not established prejudice. He
concedes the resentencing court did not mention the prior
robberies in making its major participant and reckless
indifference findings, as we have explained, substantial evidence
supported these findings. It is not reasonably probable that
exclusion of the records of conviction would have yielded a more
favorable result. Hence, we decline to find appellant was
deprived of effective assistance of counsel.
E. Deprivation of Right to a Jury Trial
Finally, appellant contends that, by finding him guilty of
felony murder under section 189, subdivision (e)(3), the
15
resentencing court deprived him of his Sixth Amendment right to
a jury trial. We disagree.
The Courts of Appeal have “unanimously held that section
1172.6 is an act of lenity in which the petitioner has no Sixth
Amendment right to a jury trial.” (Schell, supra, 84 Cal.App.5th
at p. 444; Mitchell, supra, 81 Cal.App.5th at p. 589; People v.
Farfan (2021) 71 Cal.App.5th 942, 948.)6 Because the relief is an
act of lenity, “the Legislature was free to condition the
availability of such relief on the convicted person prevailing at an
evidentiary hearing conducted pursuant to the nonjury procedure
set forth in section 1170.95 [now 1172.6].” (People v. James
(2021) 63 Cal.App.5th 604, 610–611.) “[T]he procedure is
designed solely to permit the reduction of a defendant’s
punishment; no increase is possible over the sentence that has
already become final. If it were necessary to conduct another
jury trial—often, as in this case, years after the conduct in
question—it is unlikely that the Legislature would have enacted
the procedure in the first place. Indeed, a contrary ruling might
well prompt the repeal of [former] section 1170.95.” (Id. at
p. 611.) We find James and the other decisions that have found
no right to a jury trial in section 1172.6 proceedings persuasive
and conclude appellant had no constitutional right to a jury trial.
6 The cases cited by appellant are in accord. (People v. Quan
(2023) 96 Cal.App.5th 524, 534 [“the Sixth Amendment right to a jury
trial is not triggered”]; People v. Basler (2022) 80 Cal.App.5th 46, 61–
62 [petitioner under former § 1170.95 was “not a defendant charged
anew with murder and constitutionally entitled to a jury trial”].)
16
DISPOSITION
The order denying appellant’s section 1172.6 petition is
affirmed.
MORI, J.
We concur:
CURREY, P. J.
ZUKIN, J.
17