Filed 3/1/22 P. v. Franklin CA1/1
Opinion following transfer from Supreme Court
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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.
Defendant and Appellant.
51412816)
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 appeal may appropriately be resolved by Memorandum Opinion
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pursuant to California Standards of Judicial Administration, section 8.1.
All further references are to the Penal Code unless otherwise
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indicated.
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Defendant subsequently filed a petition for resentencing pursuant to
section 1170.95, which the trial court denied on the ground the statute does
not apply to convictions for attempted murder. On appeal, the only issue
defendant raised was whether section 1170.95 applies to defendants, like
him, who pleaded to an attempted murder charge to avoid going to trial for
murder. We joined other Courts of Appeal in concluding section 1170.95, on
its face, did not apply to defendants convicted of attempted murder.
Defendant petitioned for review, which the Supreme Court granted,
holding the case for disposition pending its disposition of another case. On
February 16, 2022 the high court remanded the matter with directions to
vacate our prior decision and reconsider the matter in light of the passage of
Senate Bill No. 775 (2021–2022 Reg. Sess.) (Stats. 2021, ch. 551, § 2).
The parties then submitted supplemental briefing on the impact of this
legislation. The parties agree the legislation is applicable to defendant and
that the order denying his petition should be reversed and the case remanded
for further proceedings in accordance with section 1170.95.
Senate Bill No. 775 (2021–2022 Reg. Sess.) amended section 1170.95 so
that relief is now available to those convicted of attempted murder. Section
1170.95, subdivision (a), now states:
“A person convicted of felony murder or murder under the
natural and probable consequences doctrine or other theory under
which malice is imputed to a person based solely on that person’s
participation in a crime, attempted murder under the natural and
probable consequences doctrine, or manslaughter may file a petition
with the court that sentenced the petitioner to have the petitioner’s
murder, attempted murder, or manslaughter conviction vacated and to
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be resentenced on any remaining counts when all of the following
conditions apply. . . .” (Italics added.)
This amendment was made “to ‘[c]larif[y] that persons who were
convicted of attempted murder or manslaughter under a theory of felony
murder and the natural [and] probable consequences doctrine are permitted
the same relief as those persons convicted of murder under the same
theories.’ (Sen. Bill No. 775, Stats. 2021, ch. 551, § 1, subd. (a).)” (People v.
Porter (2022) 73 Cal.App.5th 644, 651–652.)
In reversing and remanding, we express no opinion on whether the
trial court should grant resentencing relief.
DISPOSITION
The order denying defendant’s section 1170.95 petition is reversed and
the matter is remanded with instructions to proceed consistent with the
pertinent provisions of section 1170.95. The matter is to be assigned to the
original sentencing court, if available.
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_________________________
Banke, J.
We concur:
_________________________
Humes, P.J.
_________________________
Margulies, J.
A159387, People v. Franklin
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