People v. Franklin CA3 ( 2024 )

Filed 10/9/24 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C100137
Plaintiff and Respondent, (Super. Ct. No. 69957)
v.
TIMOTHY PRINCE FRANKLIN,
Defendant and Appellant.
Defendant Timothy Prince Franklin appeals the trial court’s denial of his petition
for resentencing, purportedly brought under Penal Code section 1170.18,1 and Assembly
Bill No. 600 (2023-2024 Reg. Sess.) (Assembly Bill No. 600) (Stats. 2023, ch. 446).
Defendant’s appellate counsel filed a brief raising no arguable issues under People v.
Wende (1979) 25 Cal.3d 436.
1 Undesignated statutory references are to the Penal Code.
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Defendant filed a supplemental brief raising numerous contentions. We have
independently reviewed the arguments defendant raises in his supplemental brief and
conclude they are without merit. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Sacramento County Superior Court Case No. 69957
In Sacramento County Superior Court case No. 69957 (case No. 69957) (the case
at issue in this appeal), defendant was charged in 1984 with first degree burglary of an
inhabited dwelling. (§ 459.) He pleaded no contest to the charge and was placed on four
years’ probation, with 11 months in county jail. Before probation expired, defendant in
1987 pleaded guilty in Sacramento County Superior Court case No. 81131 to violating
Health and Safety Code, section 11350.
In October 2023, defendant filed a petition for resentencing, purportedly pursuant
to Assembly Bill No. 6002 and Proposition 47/section 1170.18.3 Defendant argued that
he entered an illegal plea because he was innocent of burglary. According to defendant,
there was no factual basis for the plea. Defendant further argued he had actually been
sentenced to second degree burglary because the sentencing triad for first degree burglary
2 Assembly Bill No. 600, which went into effect January 1, 2024, allows courts to
recall a sentence and initiate resentencing at any time if the sentencing laws applicable at
the time of sentencing have changed. (§ 1172.1, subd (a)(1).) The court may do so on its
own motion, or at any time upon the recommendation of multiple officials, including the
Secretary of the Department of Corrections and Rehabilitation. (Ibid.) “A defendant is
not entitled to file a petition seeking relief from the court under this section.” (§ 1172.1,
subd. (c).)
3 Proposition 47, the Safe Neighborhoods and Schools Act (Gen. Elec. (Nov. 4,
2014), reduced certain drug-related and theft-related offenses that previously were
felonies or “wobblers” to misdemeanors. (§ 1170.18, added by Prop. 47.) Specifically,
section 1170.18 permits recall and resentencing for those convicted under former sections
459.5, 473, 476a, 490.2, 496, 666, and Health and Safety Code sections 11350, 11357,
and 11377. (§ 1170.18, subd. (a).) Defendant was not convicted under any of these
statutes.
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is two, four, or six years, whereas the sentence for second degree burglary is one year in
the county jail. He also argued that the facts of the case established that he committed a
trespass, not burglary. He then asked the court not to treat the 1984 conviction as a
strike, especially since it was not classified as a serious or violent felony in 1984.
In November 2023, the trial court summarily denied defendant’s petition for
resentencing. The court reasoned that defendant was not convicted of an offense that was
eligible for resentencing under section 1170.18. In addition, even under the amendments
to section 1172.1, a defendant is not entitled to file a petition seeking relief under that
section. (§ 1172.1, subd. (c).)
Defendant timely appealed from the November 2023 order.
Sacramento County Superior Court Case No. 01F02563
In Sacramento County Superior Court case No. 01F02563 (case No. 2563), which
is not at issue in this appeal, defendant was convicted of rape, sexual battery, and the
commission of a lewd act on a 14-year-old victim. The jury also found true that
defendant had a prior strike/serious felony (namely the 1984 burglary conviction in case
No. 69957) (§§ 667, subds. (a)-(i), 1170.12) and had served two prior prison terms
(former § 667.5, subd. (b)). We affirmed the conviction on appeal. (People v. Franklin
(Aug. 22, 2003, C040922) [nonpub. opn.]; see also People v. Franklin (Dec. 14, 2006,
C051778) [nonpub. opn.].) In 2006, defendant was resentenced to state prison for an
aggregate term of 32 years and four months, as follows: eight years for sexual battery
(four years doubled due to the strike), 16 years consecutive for rape, 16 months for the
lewd act, five years for the prior serious felony, and two years for the two prior prison
terms. We affirmed the judgment on appeal. (People v. Franklin, supra, C051778).)
In 2023, in case No. 2563, the trial court resentenced defendant pursuant to section
1172.75, imposing an aggregate prison sentence of 30 years four months. The court
struck the prior prison term enhancements but declined to strike the prior strike or the
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five-year prior serious felony enhancement. We affirmed that judgment on appeal as
well. (People v. Franklin (July 3, 2024, C099919) [nonpub. opn.].)
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asked this court to review the record and determine whether there are any arguable issues
on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant filed a supplemental brief raising multiple arguments regarding his
resentencing in case No. 2563, including: (1) the trial court should have stricken the
strike and the five-year prior strike enhancement pursuant to section 1385 and Romero;4
(2) he was entitled to a full resentencing under section 1172.75 and People v. Buycks
(2018) 5 Cal.5th 857; (3) he was entitled to relief under Assembly Bill No. 1618 (2019-
2020 Reg. Sess.) (Stats. 2019, ch. 586, § 1);5 and (4) the trial court erroneously failed to
consider his good behavior during his incarceration. We find no merit in these
contentions since they relate only to case No. 2563, which is not at issue in this appeal.
Defendant also challenges the factual basis for his burglary conviction in case
No. 69957. Despite defendant’s contentions, we agree with the trial court that defendant
was ineligible for resentencing under section 1170.18 because he was not convicted of an
eligible offense. We further agree that defendant was ineligible for relief under
Assembly Bill No. 600 because section 1172.1 does not entitle a defendant to petition for
relief. (§ 1172.1, subd. (c).)
4 People v. Superior Court (Romero) (1996) 13 Cal.4th 4975 Assembly Bill No. 1618 added section 1016.8 and provides that “[a] provision of a
plea bargain that requires a defendant to generally waive future benefits of legislative
enactments . . . that may retroactively apply after the date of the plea is void as against
public policy.” (§ 1016.8, subd. (b).) This provision has no application here.
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Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant.
DISPOSITION
The trial court’s order denying defendant’s resentencing petition is affirmed.
\s\ ,
Krause, J.
We concur:
\s\ ,
Duarte, Acting P. J.
\s\ ,
Mesiwala, J.
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