Opinion
C051778
12-14-2006
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY PRINCE FRANKLIN, Defendant and Appellant.
In March 2001, a 14-year-old neighbor of defendant Timothy Prince Franklin let him into her home. When she dropped some coins onto the floor, defendant scooped them up. The girl reached for her coins, but he grabbed her legs, causing her to fall to the floor. Defendant then repeatedly pulled up the girls shirt, licked her breasts, pulled down her pants, licked her vagina, and put his penis in her vagina.
At defendants request, we take judicial notice of this courts opinion in People v. Franklin (Aug. 22, 2003, C040922) [nonpub. opn.]. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)
A jury convicted defendant of rape, sexual battery, and the commission of a lewd act on a 14-year-old victim. The jury also found defendant had a prior serious felony conviction (strike) and had served two prior prison terms. He was sentenced to state prison for an aggregate term of 32 years and four months. He appealed, and this court affirmed the judgment.
In May 2005, the trial court granted defendants petition for writ of habeas corpus, ordering resentencing because the court had imposed a fully consecutive term for the rape even though the controlling statute did not mandate such a term (Pen. Code, § 667.6, subd. (d); further section references are to the Penal Code), and the court did not state any separate reason supporting its discretionary choice of that term.
At resentencing in January 2006, defendant was committed to state prison for the same term, 32 years and four months. The trial court imposed a second-strike (doubled) term of 8 years for sexual battery and consecutive terms of 16 years for rape, 16 months for the lewd act, five years for having the prior strike, and two years (one each) for having served two prior prison terms. Defendant was ordered to pay a $10,000 restitution fine (§ 1202.4), a $10,000 restitution fine suspended unless parole is revoked (§ 1202.45), a $ 10 crime prevention fee (§ 1202.5), and booking and classification fees. The court awarded the presentence credits that it had determined at the original sentencing.
Sentencing on the rape under section 667.6, subdivision (c), was selected because the victim was particularly vulnerable, and because the crime displayed a high degree of cruelty and callousness.
The trial court stated that the Department of Corrections and Rehabilitation would compute the time credits to which defendant was entitled while in local custody for resentencing.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days elapsed, and we received no communication from defendant. Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur:
ROBIE, J.
BUTZ, J.