People v. Franklin CA1/1 ( 2021 )

Filed 4/6/21 P. v. Franklin CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 publi-
cation or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or-
dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A159387
v.
TERRELL MARQUIS FRANKLIN, (Contra Costa County
Super. Ct. No. 5-
Defendant and Appellant.
141281-6)
MEMORANDUM OPINION1
Defendant Terrell Marquis Franklin was charged with one count of
murder (Pen. Code, § 187, subd. (a)2), one count of attempted murder (§§ 187,
subd. (a), 664), shooting at an inhabited dwelling (§ 246), and first degree
residential burglary (§§ 459, 460, subd. (a)). Personal firearm use
enhancements were also alleged. Approximately one year later, he agreed to
a negotiated disposition, pleading no contest to the attempted murder charge
and admitting one of the firearm enhancements. The remaining charges and
enhancements were dismissed. He was sentenced to 12 years in state prison.
This case is appropriately resolved by way of memorandum opinion
1
pursuant to pursuant to California Standards of Judicial Administration,
section 8.1.
2 All further references are to the Penal Code unless otherwise
indicated.
1
Defendant subsequently filed a petition for resentencing pursuant to
section 1170.95, which the trial court denied on the ground section 1170.95
does not apply to convictions for attempted murder. The only issue defendant
raises on appeal is whether section 1170.95 applies to defendants, like him,
who pleaded to an attempted murder charge to avoid going to trial for
murder.
Effective January 1, 2019, Senate Bill No. 1437 (2017-2018 Reg. Sess.)
amended murder liability under the felony-murder and natural and probable
consequences theories. The bill redefined malice under section 188 to require
that the principal acted with malice aforethought. Now, “[m]alice shall not
be imputed to a person based solely on his or her participation in a crime.”
(§ 188, subd. (a)(3).) The bill also amended section 189 to provide that a
defendant who was not the actual killer and did not have intent to kill is not
liable for felony murder unless he or she “was a major participant in the
underlying felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.” (§ 189, subd. (e)(3).)
Senate Bill No. 1437 (2017-2018 Reg. Sess.) also enacted section
1170.95, which authorizes “[a] person convicted of felony murder or murder
under a natural and probable consequences theory [to] file a petition with the
court that sentenced the petitioner to have the petitioner’s murder conviction
vacated and to be resentenced on any remaining counts” so long as three
conditions are met: “(1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable consequences
doctrine. [¶] (2) The petitioner was convicted of first degree or second degree
murder following a trial or accepted a plea offer in lieu of a trial at which the
petitioner could be convicted for first degree or second degree murder. [¶] (3)
2
The petitioner could not be convicted of first or second degree murder because
of changes to Section 188 or 189 made effective January 1, 2019.” (§ 1170.95,
subd. (a)(1)-(3).) Any petition that fails to make “a prima facie showing that
the petitioner falls within the provisions of [section 1170.95]” may be denied
without a hearing. (§ 1170.95, subds. (c) & (d).)
As defendant points out, the Courts of Appeal have taken varying views
as to the effect of Senate Bill No. 1437 (2017-2018 Reg. Sess.) on attempted
murder, “with some courts holding that Senate Bill 1437 does not apply to
attempted murder at all, some holding that it applies only prospectively, and
some holding that it applies both prospectively and retroactively to nonfinal
convictions. (See People v. Love (2020) 55 Cal.App.5th 273, 278-279 . . .
[summarizing the split of authority][, review granted Dec. 16, 2020,
S265445].)” (People v. Harris (2021) 60 Cal.App.5th 557, 565 (Harris).)
But this “split of authority is irrelevant in the present case because
[defendant’s] attempted murder conviction is final,” and “[n]o court has held
that Senate Bill 1437 applies retroactively to final convictions of attempted
murder.” (Harris, supra, 60 Cal.App.5th at p. 565.) The issue is currently
pending in the California Supreme Court and will be resolved there. (E.g.,
People v. Lopez (2019) 38 Cal.App.5th 1087 (Lopez), review granted Nov. 19,
2019, S258175.) In the meantime, we agree with the holding in cases such as
Harris. (See, e.g., People v. Alaybue (2020) 51 Cal.App.5th 207, 222-225
(Alaybue); People v. Dennis (2020) 47 Cal.App.5th 838, 844-846; People v.
Munoz (2019) 39 Cal.App.5th 738, 753-759, review granted Nov. 26, 2019,
S258234.) Collectively, these cases fully address all the arguments defendant
has advanced here, and we need not, and do not, repeat the analyses in these
cases here, but adopt their reasoning.
3
We observe that the conclusion these courts have reached is consistent
with the plain language of section 1170.95, which allows a petitioner to seek
only “to have [his or her] murder conviction vacated and to be resentenced on
any remaining counts. . . .” (§ 1170.95, subd. (a).) Subdivision (d)(1) of
section 1170.95 permits the trial court to conduct a hearing “to determine
whether to vacate the murder conviction” and subdivision (d)(2) similarly
refers only to a “murder conviction.” Because the statute does not refer to
attempted murder, the plain language refutes defendant’s arguments that
the Legislature intended section 1170.95 to apply to attempted murder.
(Lopez, supra, 38 Cal.App.5th at pp. 1104–1105.)
Further, “[i]n deciding to omit attempted murder from the ambit of
Senate Bill 1437, the Legislature could have reasonably concluded that the
need to address sentencing reform was more appropriately directed at
persons convicted of murder as opposed to attempted murder. This is so
because the punishment for attempted murder is generally far less than the
punishment imposed for murder.” (Alaybue, supra, 51 Cal.App.5th at p. 224;
accord, Harris, supra, 60 Cal.App.5th at p. 570.)
DISPOSITION
The order denying defendant’s petition under section 1170.95 is
AFFIRMED.
4
_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A159387, People v. Franklin
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