Filed 11/8/22 P. v. Fran klin CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE

, Plaintiff and Respondent

,

v.

R AEKWON FRANKLIN

, Defendant and Appellant. B318458

(Los Angeles County Super. Ct. No. NA099770 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer , Judge. Affirmed. Patricia J. Ulibarri , under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.2 A jury found defendant Raekwon Franklin (defendant) guilty of a ttempted willful, deliberate, and premeditated murder (Pen. Code, 1 §§ 664 (a) , 187(a)) and assault with a firearm (§ 245(a)(2) ). The prosecution presented evidence at trial that defendant fired a shotgun at two minors after asking where they were from

— a question understood as a gang challenge

. As to the at tempted murder conviction , the jury found true allegation s that defendant inflicted great bodily injury within the meaning of section 12022.7 and personally used a firearm within the meaning of section s 12022.53 (b)

- (d). As to the assault with a firearm co nviction , the jury found true an allegation that defendant personally used a firearm within the meaning of section 12022.5. As to both convictions , the jury found true allegations that the crimes were committed for the benefit of a criminal street gang wi thin the meaning of section 186.22(b).
The trial court sentenced defendant to 43 years to life in state prison, with an additional indeterminate life term. The sentence was comprised of a life sentence for attempted murder with an a ssociated 25

- years

- to

- life firearm enhancement and a n associated 10

- year gang enhancement , plus a consecutive term of
three years for the assault with a firearm conviction and five years for the associated gang enhancement.
In a prior appeal, we affirmed defendant’s conviction but vacated the sentence because the trial court erred in imposing
the 10

- year gang enhancement attached to the attempted murder charge . (

People v. Franklin (Sept. 27, 2018, B284671 ) [nonpub. opn.] ( Franklin I

) , citing People v. Lopez (2005) 3 4 Cal.4th 1002,

1 Undesignated statutory references that follow are to the Penal Code.3

1004 .) We remanded for resentencing and explained the court was “entitled to consider the entire sentencing scheme” and must decide whether to exercise newly

- conferred discretion permitting

a court to strike a 25

- to

- life firearm enhancemen t in the interest of justice

. (

Id. , citing § 12022.53(h).) On remand, the trial court sentenced defendant to a total term of 40 years to life in state prison : life on the attempted murder count

— with a 15

- year minimum parole term for the gang enhancement, a 20

- year firearm enhancement

, a three

- year great bodily injury enhancement
, and a consecutive term of two years for the assault with a firearm conviction . The resentencing judge, who was not the judge who presided at trial and imposed the original sentence
, remarked she was “stay[ing] fully within the spirit of” the original sentence. 2 T he trial court also set a hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261 ( Franklin ) for the following week. (See generally id. at 284 [“ Franklin may place on the record any documents, evaluations, or testimony (subject to cross

- examination) that may be relevant at his eventual youth offender parole hearing, and the prosecutio n likewise may put on the record any evidence that demonstrates the juvenile offender's culpability or cognitive maturity, or otherwise bears on the influence of youth

- related
factors ”] .)

2 When the prosecution emphasized “the remittitur

. . . indicates

. . . the [original] sentence was 43

- years

to

- life” (as opposed to 40 years to life), the trial court responded, “I thin k for purposes of this case 40

- to

- life is perfectly sufficient, so I’m just going to

— I appreciate the clarification, so I’m just going to make myself very clear

. . . that I’m just sticking to 40

- to

life.”4 Defendant noticed an appeal from the resentencing. This court appo inted counsel to represent defendant. After examining the record, counsel filed an opening brief pursuant to People v. Wende (1979) 25 Cal.3d 436 ( Wende ) that raises no issues and asks us to independently review the record. We invited defendant to submit a supplemental brief and he has, arguing (1)
his resentencing should have been handled by the judge who presided at trial , (2) the trial court erred by “ combin [ ing ]” his

re sentencing with his Franklin hearing, (3) the trial court erred
in “basing [his] re

- sentencing off the vacated sentence instead of

re

- sentencing [him],” and (4) the trial court erred by “adding the gang enhancements after the appellate court had already deleted it.” Defendant’s contentions lack merit. He had no right to be resentenced by the judge who presided at his trial. ( People v.
Jacobs (2007) 156 Cal.App.4th 728, 733.) The basis of defendant’s suggestion that a Franklin hearing cannot be
combined with a re sentencing is not clear, but whatever the basis , the appellate record reflect s the Franklin hearing was scheduled for after defendant’s sentencing , not combined with it

. And as to defendant’s final two contentions, the record reflects both that the trial court’s treatment of the gang enhancement complies with our de cision in Franklin I and that the court independently exercised its sentencing discretion notwithstanding its remark that the sentence ultimately imposed

was within the “ spirit ” of the original sentence

. Having considered defendant ’ s supplemental brief an d conducted our own examination of the record, we are satisfied defendant ’ s appellate attorney has complied with her responsibilities and no arguable issue exists. ( Smith v. Robbins5

(2000) 528 U.S. 259, 278

- 82; People v. Kelly (2006) 40 Cal.4th 106,
122

- 2 4; Wende
, supra , 25 Cal.3d at 441.)

DISPOSITION The judgment is affirmed

.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR

, J.

KIM , J.