People v. Franklin

• Decision Date: 26 March 2018
• Docket Number: D071453
• Citation: 21 Cal.App.5th 881,230 Cal.Rptr.3d 647
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. D'Mare Atte FRANKLIN, Defendant and Appellant.

21 Cal.App.5th 881

230 Cal.Rptr.3d 647

The PEOPLE, Plaintiff and Respondent,

v.D'Mare Atte FRANKLIN, Defendant and Appellant.

D071453

Court of Appeal, Fourth District, Division 1, California.

Filed March 26, 2018

As Modified on Denial of Rehearing April 18, 2018

Certified for Partial Publication.^*

Mark D. Johnson, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.

DATO, J.

A jury convicted D'Mare Atte Franklin of one count of premeditated and deliberate attempted murder ( Pen. Code,¹ §§ 664, 187, subd. (a) ) and two counts of assault with a semiautomatic firearm (§ 245, subd. (b)). The jury also found that Franklin personally used a firearm in connection with each count, leading to firearm enhancements on each of his sentences. (§§ 12022.5, subd. (a), 12022.53, subd. (c).) On appeal, he argues that his attempted murder conviction should be reversed due to errors that purportedly led the jury to give insufficient consideration and weight to provocation. Because Franklin fails to establish prejudice flowing from any such errors, we affirm his conviction. But in light of recent legislative changes to the sentencing scheme for firearm enhancements, which we discuss in the unpublished portion of this opinion, we remand for resentencing.

FACTUAL AND PROCEDURAL BACKGROUND

Franklin and C.² arrived at a La Mesa bar around 12:30 a.m. on a June night. They had already imbibed several drinks at C.'s apartment. C., a "regular," greeted the bartender and introduced Franklin as his out-of-state cousin. Franklin came across to the bartender as "a little confrontational." Another patron later characterized him as "aggressive in the way he spoke" and "like he was ready to start something."

Franklin and C. hung around by the bar and roughhoused with each other a little before leaving briefly to get pizza from a nearby convenience store. They returned with their pizza and played a game of pool. The roughhousing continued. At one point, the bartender intervened, telling them to "take it down a notch."

As Franklin and C. were playing pool, Terry B. and Jamar B. pulled their car into the bar's parking lot. Terry had spoken to C. on the phone a few minutes prior and knew that C. was at the bar. Terry went inside and greeted C. with a high-five. Franklin offered a high-five as well but Terry rebuffed him, saying something along the lines of "mind your business." Franklin retorted that they could "fade," meaning fight.

Franklin and Terry went outside, ostensibly to "fade," but no punches were thrown. There was just a lot of yelling and commotion. However, while they and others were reentering the bar, someone—it was unclear whom—hit Franklin from behind.

Back inside the bar, Franklin made several phone calls. He dialed his brother, girlfriend, and mother. His brother called back and they spoke briefly. Terry grew suspicious when he saw Franklin on the phone and asked him if he was calling someone to get the "heat," referring to a gun. Franklin did not respond. Terry's suspicions were not wholly off base. At trial, Franklin testified that his brother gratuitously said he was bringing his gun.

Terry went outside to find Jamar so they could leave. As they approached their car, Franklin emerged from the bar. He yelled that he was "ready to fight." Terry turned and advanced towards Franklin. For several minutes, Franklin and Terry took turns charging at and retreating from each other, but not making contact. Eventually the posturing subsided, and Jamar and Terry got into their car.

Terry backed out of the parking space and began driving toward the parking lot's exit, as Franklin's brother arrived. Franklin bounded around the front of his brother's car to the driver's side and retrieved a gun. He fired four to five rounds at Terry and Jamar's departing vehicle, lodging one bullet in its trunk. As Terry and Jamar's car turned out of the parking lot, Franklin ran after it, hopping down to a lower-level sidewalk and firing five to six more rounds.

Franklin darted back to his brother's vehicle and stowed the gun in the passenger side as a police car pulled into the lot. Franklin ran. The police gave chase, and Franklin tried to evade them, hurdling a fence before reversing course and jumping back over the same fence. Eventually he slowed to a walk and was stopped. While detained, Franklin stomped on his cellphone, calling it a "piece of crap."

The police collected ten spent firearm casings from the bar's parking lot and the nearby area. A gun registered to Franklin's brother was later found in the San Diego harbor. Nine of the casings were matched to it.

Franklin was charged with four counts: attempted murder of Terry ( §§ 664, 187, subd. (a), count one); attempted murder of Jamar ( §§ 664, 187, subd. (a), count two); assault on Terry with a semiautomatic firearm (§ 245, subd. (b), count three); and assault on Jamar with a semiautomatic firearm (§ 245, subd. (b), count four). The case proceeded to trial by jury.

At trial, Franklin took the stand in his own defense. According to Franklin, earlier that day tension arose between Terry and him during a conversation at C.'s apartment; Terry had warned, "I'll be back." Franklin was shocked to later see Terry arrive at the bar. He denied challenging Terry to "fade." Franklin testified that he thought Terry was armed and that Terry threatened to kill him. He also testified that after he was punched from behind, he turned and saw Terry. When he fired the gun, Franklin was afraid for his life and wasn't "trying to do anything ... besides scar[e] them away from [him]." Franklin also repeatedly testified that he was drunk.

The court instructed the jury on premeditated and deliberate attempted murder (CALCRIM Nos. 600 & 601), attempted voluntary manslaughter based on heat of passion ( CALCRIM No. 603 ), attempted voluntary manslaughter based on imperfect self-defense ( CALCRIM No. 604 ), self-defense ( CALCRIM No. 505 ), and voluntary intoxication ( CALCRIM No. 625 ).

The jury convicted Franklin of willful, deliberate, and premeditated attempted murder of Terry and both assault counts. It further found that, with respect to the attempted murder conviction, Franklin personally discharged a firearm within the meaning of section 12022.53, subdivision (c), and with respect to the assault convictions, Franklin personally used a firearm within the meaning of section 12022.5, subdivision (a). As to the second count, the jury acquitted Franklin of the attempted murder of Jamar ( §§ 664, 187, subd. (a) ), but hung as to the lesser included offense of attempted voluntary manslaughter ( §§ 664, 192, subd. (a) ). After the court declared a mistrial as to that lesser included offense, the People dismissed the count.

Franklin subsequently moved to reduce his premeditated and deliberate attempted murder conviction to one of attempted voluntary manslaughter or, in the alternative, to have the section 189 premeditation and deliberation finding set aside. The court denied the motion and proceeded to sentencing. For the attempted murder conviction, Franklin was sentenced to an indeterminate life term with a consecutive determinate 20-year term based on the firearm enhancement. For the assault on Jamar, he was sentenced to a concurrent term of six years, plus four years for the firearm enhancement. The sentence for the assault on Terry—also six years, plus four years for the firearm enhancement—was stayed pursuant to section 654.

DISCUSSION

Most of Franklin's contentions on appeal relate to the potential effect of provocation on his conviction for premeditated and deliberate attempted murder. First, he claims the trial court erroneously responded to a jury query regarding the requirements for an attempted voluntary manslaughter conviction based on heat of passion. He next argues that his trial counsel was ineffective in failing to (1) object to the trial court's proposed response to the jury and (2) request a pinpoint instruction regarding the effect of provocation on premeditation and deliberation.³ We reject each of these arguments because Franklin fails to establish that any such errors were prejudicial under the relevant legal standards.

Additionally, Franklin contends that recent legislation regarding firearm enhancements could alter his sentence. The People properly concede that the relevant statutory amendments apply retroactively to nonfinal cases including Franklin's. We therefore remand the case for resentencing.

1. The Jury's Question

a. The erroneous response

After a jury retires to deliberate, "[s]ection 1138 imposes upon the court a duty to provide the jury with the information the jury desires on points of law." ( People v. Smithey (1999) 20 Cal.4th 936, 985, 86 Cal.Rptr.2d 243, 978 P.2d 1171.) "Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." ( People v. Beardslee (1991) 53 Cal.3d 68, 97, 279 Cal.Rptr. 276, 806 P.2d 1311 ( Beardslee ).) Although "comments diverging from the standard [instructions] are often risky" ( ibid. ), it is generally not acceptable for a trial court to "merely repeat for a jury the text of an instruction it has already indicated it doesn't understand." ( People v. Thompkins (1987) 195 Cal.App.3d 244, 253, 240 Cal.Rptr. 516 ( Thompkins )). Rather the court "must at least consider how it can best aid the jury." ( Beardslee , at p. 97, 279 Cal.Rptr. 276, 806 P.2d 1311.) We review de novo the legal accuracy of any supplemental instructions provided.⁴

The jury's inquiry in this case related to the relationship between attempted murder, attempted voluntary manslaughter, and the heat of...