Filed 11/8/22 P. v. Franklin 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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.

RAEKWON 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 attempted 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 attempted murder conviction, the jury found true 

allegations that defendant inflicted great bodily injury within the 

meaning of section 12022.7 and personally used a firearm within 

the meaning of sections 12022.53(b)-(d). As to the assault with a 

firearm conviction, 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 within 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 associated 25-years-to-life firearm enhancement and an 

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) 34 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 enhancement 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 The 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 

prosecution 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-yearsto-life” (as opposed to 40 years to life), the trial court responded, 

“I think 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-tolife.”
4

Defendant noticed an appeal from the resentencing. This 

court appointed 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 

resentencing 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 resentencing is not clear, but whatever the 

basis, the appellate record reflects 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 decision 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 and 

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. Robbins
5

(2000) 528 U.S. 259, 278-82; People v. Kelly (2006) 40 Cal.4th 106, 

122-24; 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.