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Filed 2/29/24 P. v. Franklin CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

LESLEY WILLIAM FRANKLIN, JR.,

Defendant and Appellant.

C098284

(Super. Ct. No. 22CF03754)

Defendant Lesley William Franklin, Jr., pleaded no contest to felony possession 

of a controlled substance. He waived a jury or court trial for the determination 

of aggravating factors and agreed the trial court could impose the lower, middle, or upper 

term. The trial court sentenced him to the upper term of three years. Defendant did not 

object in the trial court to the trial court’s findings of aggravating factors or to the upper 

term sentence.

Defendant now contends the trial court erred under Penal Code section 11701

in imposing the upper term sentence. We conclude defendant forfeited the contention

by failing to object in the trial court. Accordingly, we will affirm the judgment.

1 Undesignated statutory references are to the Penal Code.
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BACKGROUND

In January 2023, defendant pleaded no contest to felony possession of a controlled 

substance (Health & Saf. Code, § 11377, subd. (a)). As part of the plea agreement, 

defendant acknowledged that the trial court could not impose a sentence exceeding the 

middle term unless aggravating factors justified the upper term. Defendant waived his 

right to a jury or court trial where any facts underlying an aggravating factor must be 

proven beyond a reasonable doubt. Defendant agreed that the trial court could find 

aggravating factors based on the probable cause declaration and police reports, and 

acknowledged that the trial court could impose the lower, middle, or upper term. 

Defendant also agreed that if he believed the summary in the probation report was 

incomplete or incorrect, he could submit additional portions from the probable cause 

declaration and police reports.

A presentencing probation report stated that defendant had 12 prior felony 

convictions and 12 prior misdemeanor convictions. The probation report also stated that 

defendant served prior prison terms in 1977, 1983, 1999, 2005, 2011, 2018, and 2020. 

The probation report listed the following aggravating factors: (1) the crime involved a 

large quantity of contraband (Cal. Rules of Court, rule 4.421(a)(10)); (2) the defendant’s 

prior convictions are numerous or of increasing seriousness (Cal. Rules of Court, 

rule 4.421(b)(2)); (3) defendant was on probation, mandatory supervision, postrelease 

community supervision, or parole when the crime was committed; and (4) the 

defendant’s prior performance on probation, mandatory supervision, postrelease 

community supervision, or parole was unsatisfactory. The probation report did not list 

any mitigating factors. The probation report recommended imposition of the upper term 

because this was defendant’s 13th felony conviction, he had more than 44 parole and 

probation violations, he was on parole when he committed the instant offense, and he 

served numerous prison terms. Defendant filed proposed corrections to the probation 

report but did not contest the number of convictions or that he served prior prison terms.
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At sentencing in March 2023, the trial court began by stating that it intended to 

follow the probation report’s recommendation. Defense counsel requested the low term,

but did not dispute the aggravating factors identified in the probation report. Defense 

counsel acknowledged that defendant had served numerous prison terms. Defendant 

requested the low term to have the opportunity to turn his life around. The trial court 

recounted defendant’s plea agreement terms related to imposing the upper term and that 

defendant stipulated to the possible existence of aggravating factors. After taking judicial 

notice of its own case files in case Nos. 20CF04625, 20CF02911, 18CF02199, and 

CM035501, the trial court found that defendant was convicted of five felonies in 12 years 

and served prison terms for those prior convictions. The trial court found true the 

aggravating circumstances that defendant’s prior convictions were numerous and that he 

served prior prison terms. The trial court also found true the mitigating factor that 

defendant pleaded at an early stage of the proceedings. Finding that the aggravating 

circumstances outweighed the mitigating factor, the trial court sentenced defendant to the 

upper term of three years for possession of a controlled substance.

Defendant did not obtain a certificate of probable cause.

DISCUSSION

Defendant contends the trial court erred in imposing the upper term sentence. 

The contention is forfeited.

Effective January 1, 2022, Senate Bill No. 567 (2021-2022 Reg. Sess.) amended 

section 1170 to limit the trial court’s discretion to impose a sentence greater than the 

midterm. (§ 1170, subd. (b)(1), (2), as amended by Stats. 2021, ch. 731, § 1.3.) To 

impose a sentence beyond the midterm, the sentence must be justified by at least one 

aggravating factor, and the facts supporting the aggravating factors must have been 

stipulated to by defendant, found true beyond a reasonable doubt by the trier of fact, or 

established by a certified record of conviction. (§ 1170, subd. (b)(1)-(3), as amended by 

Stats. 2021, ch. 731, § 1.3.)
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Defendant waived a jury or court trial for the determination of aggravating factors 

and agreed the trial court could impose the lower, middle, or upper term. The probation 

report was filed before the sentencing hearing and recommended the imposition of the 

upper term based on aggravating circumstances, including that defendant had numerous 

prior convictions and served prior prison terms. Defendant filed amendments to the 

probation report, but he did not argue that his convictions were not numerous or dispute 

the number of convictions. After the trial court found that defendant’s prior convictions 

were numerous, defendant did not object or dispute the finding. Nor did defendant object 

to the imposition of the upper term.

Defendant had an opportunity to assert a preference for a different method to find 

aggravating circumstances and to object to the findings and the imposition of the upper 

term sentence. His failure to object forfeited the appellate challenge here. (People v. 

Garcia (2010) 185 Cal.App.4th 1203, 1218 [“ ‘Claims of error relating to sentences 

“which, though otherwise permitted by law, were imposed in a procedurally or factually 

flawed manner” are waived on appeal if not first raised in the trial court.’ ”

(Italics omitted.)].)

DISPOSITION

The judgment is affirmed. 

 /S/

MAURO, J.

We concur:

 /S/

HULL, Acting P. J.

 /S/

KRAUSE, J.