Opinion
F087385
08-19-2024
THE PEOPLE, Plaintiff and Respondent, v. MARIA ANTONIA FRANCO, Defendant and Appellant.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County, No. F12909692 John F. Vogt, Judge.
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
James Bisnow, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-
INTRODUCTION
In 2013, appellant and defendant Maria Antonia Franco (appellant) was convicted after a jury trial of attempted murder and robbery, with firearm enhancements. She was sentenced to nine years plus 25 years to life. The judgment was affirmed on direct appeal.
In 2022, appellant filed both a petition for resentencing of her attempted murder conviction pursuant to Penal Code section 1172.6, and a petition for a youthful offender hearing pursuant to People v. Franklin (2016) 63 Cal.4th 261. The trial court denied the petition for resentencing, granted the petition for a Franklin hearing, conducted that hearing, and admitted appellant's evidence into the record.
All further statutory citations are to the Penal Code.
Appellant filed a timely notice of appeal limited only to the "Franklin [h]earing." Appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant did not file a supplemental brief on her own behalf. We affirm.
The factual and procedural backgrounds are partially from this court's nonpublished opinion in People v. Valdez & Franco (June 2, 2016, No. F067927) that affirmed appellant's judgment in her direct appeal. The opinion was filed as a supporting exhibit to the prosecution's opposition to appellant's motion for resentencing. Appellant relied on this opinion for the factual statement contained in the opening brief in this appeal.
"[Isai] Lopez first encountered [codefendant Bayron] Valdez in October 2010. The men became 'good friends' and met regularly to use alcohol and methamphetamine. Valdez later introduced Lopez to [appellant]. "Sometime after midnight on December 2, 2010, Lopez paid for a room at the Parkland Motel in Fresno, where he, Valdez, [appellant], and Aimee Doughty drank beer and smoked methamphetamine. At some point, Lopez left the motel, picked up a female acquaintance, drove her to his uncle's house, and received what appeared to be a $20 bill as recompense from her. Upon his return, in the presence of Valdez, [appellant], and Doughty, Lopez compared the newly acquired bill to $500 of his own cash and determined the former was a counterfeit. After Lopez placed the money in his pocket, he observed Valdez and [appellant] chatting inside the walk-in closet. Once Valdez moved to a different part of the room, Lopez approached [appellant], who had remained in the closet, and briefly spoke with her. When Lopez exited the closet, Valdez said,' "All right,"' and shot Lopez in the right upper abdomen from 17 feet away. [Appellant] then shot Lopez in his left side, below the ribcage, at close range. Valdez said to Lopez,' "Give me your money, your dope, and your car keys."' Lopez relinquished his money, keys, cell phone, and lottery tickets. Thereafter, Valdez, [appellant], and Doughty departed. Lopez tried to use the room's landline phone to call for help but discovered 'the cord was ripped off the wall.' He left the room, knocked on nearby doors, and pleaded for assistance. Lopez eventually collapsed. "Meanwhile, the motel's security guard, who had heard gunfire and witnessed three people fleeing the premises, called 911. Police officers and paramedics arrived on the scene at around 4:00 a.m. Lopez was transported to Community Regional Medical Center, where he presented two gunshot wounds and underwent surgery to repair damage to his small intestine and vena cava. Dr. Krista Kaups, the general trauma and critical care surgeon who performed the operation, opined these injuries were so severe Lopez would have died without treatment. X-rays exhibited a single bullet lodged in front of the spinal column and below the ribcage. Dr. Kaups concluded one of the wounds was the entrance wound while the other wound 'may well have been a graze wound, ... where [another] bullet didn't actually enter [Lopez], but . . . just nicked the skin.' At the time she treated Lopez, Dr. Kaups acknowledged she 'didn't spend a lot of time figuring out which wound was the source of where the injuries came from.'" (People v. Valdez &Franco, supra, F067927, fns. omitted.)
PROCEDURAL BACKGROUND
On January 24, 2013, an information was filed in the Superior Court of Fresno County charging appellant and Valdez with count 1, second degree robbery of Lopez (§ 211); and count 2, attempted murder of Lopez (§§ 187, subd. (a), 664); and that each personally and intentionally discharged a firearm proximately causing great bodily injury (§ 12022.53, subd. (d)). Appellant was separately charged with count 3, possession of firearm by a felon (§ 29800, subd. (a)(1)).
On May 20, 2013, after a jury trial, appellant was convicted of count 1, robbery; count 2, attempted murder; and count 3, felon in possession of a firearm. As to counts 1 and 2, the jury found appellant personally and intentionally discharged a firearm causing great bodily injury.
On November 8, 2013, the trial court denied appellant's motion for a new trial and sentenced her to nine years for count 2, attempted murder, with a consecutive term of 25 years to life for the firearm enhancement; a concurrent term of three years for count 3; and stayed the terms imposed for count 1.
On June 2, 2016, this court affirmed the judgment in appellant's direct appeal.
Appellant and Valdez were tried together in a joint jury trial. Valdez was convicted of count 1, robbery, and count 2, attempted murder, with firearm enhancements and other offenses. He was sentenced to nine years for count 2, attempted murder, plus 25 years to life for the firearm enhancement, and one year for a prior prison term enhancement, with the remaining terms either concurrent or stayed. In the joint direct appeal of appellant and Valdez, this court reversed Valdez's conviction for felon in possession of a firearm, corrected an error in the abstract ofjudgment, and otherwise affirmed. Valdez was not a party to appellant's petitions or the instant appeal.
POSTJUDGMENT PETITIONS
On August 30, 2022, appellant filed a petition for resentencing of her conviction for attempted murder pursuant to section 1172.6 and requested appointment of counsel.
On September 14, 2022, appellant filed a separate petition for the trial court to conduct a Franklin hearing to make a record of youth-related factors relevant to her parole suitability pursuant to section 3051 et seq., and section 4801, subdivision (c).
On January 27, 2023, the prosecution filed opposition to appellant's section 1172.6 petition for resentencing, and argued the record of conviction and instructions showed appellant was not convicted of attempted murder based on any imputed malice theories. The prosecution did not oppose appellant's petition for a Franklin hearing.
On July 6, 2023, appellant's counsel filed a reply and argued the petition for resentencing met the prima facie burden.
The Trial Court's Rulings
On September 28, 2023, the trial court conducted a hearing on appellant's pending petitions. The court denied the section 1172.6 petition for failing to state a prima facie case because the jury was instructed on express malice and intent to kill to convict her of attempted murder, and it was not instructed on any imputed malice theories.
The trial court granted appellant's request for a Franklin hearing and set the matter on calendar. The prosecution did not object.
Franklin Hearing
On December 13, 2023, the trial court conducted the Franklin hearing. The court admitted appellant's documentary exhibits for consideration at an eventual parole hearing. The court also heard and admitted the testimony of a former juror from appellant's trial, who advocated for her release.
The court ordered the documentary exhibits and the transcript of the testimony transmitted to the Department of Corrections and Rehabilitation (CDCR), and granted the prosecution's request for limited redactions. The court also ordered CDCR and/or the parole board to consider appellant's "central file" regarding her postsentencing conduct as part of the record.
On December 22, 2023, appellant filed a timely notice of appeal limited only to the "Franklin [h]earing."
DISCUSSION
As noted above, appellate counsel filed a Wende brief with this court. The brief also includes counsel's declaration that appellant was advised she could file her own brief with this court. This court advised appellant by letter that she could file a supplemental letter or brief raising any arguable issues. Appellant did not do so.
Appellant's appeal was limited to the "Franklin [h]earing" and she did not challenge the court's denial of her petition for resentencing. As for the Franklin hearing, the court conducted the hearing, admitted the evidence introduced by her attorney, and ordered the evidence to become part of appellant's record for consideration when she became eligible for parole.
After independent review of the record, we find no reasonably arguable factual or legal issues exist.
DISPOSITION
The court's orders of September 28, 2023, and December 13, 2023, are affirmed.
[*] Before Hill, P. J., Poochigian, J. and Franson, J.