Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ronald V. Skyers, Judge. Super. Ct. No. TA077722
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
KITCHING, J.
Christopher Jacob Franklin appeals from the judgment entered following remand for resentencing. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The statement of facts and procedural history have been taken primarily from this court’s March 16, 2007 nonpublished opinion in People v. Franklin et al., Case No. B189405. Accordingly, we take judicial notice of the opinion in that matter. (Evid. Code, §§ 452, subd. (d) & 459.)
On January 17, 2005, Christopher Jacob Franklin (Franklin) and his brother, Charles Franklin, committed a drive-by shooting during which they attempted to murder Kenneth Woods. The shooting was committed for the benefit or promotion of a criminal street gang.
Los Angeles County Sheriff’s Sergeant Elizer Vera (Vera) heard the gunshots and saw Franklin’s car leave the area. Vera followed the Franklins in his patrol car. As Vera followed, Franklin leaned out the front passenger side window and fired at Vera with a Tech-9 semiautomatic assault weapon. After attempting to shoot Vera a second time, Franklin threw the assault weapon from the car.
2. Procedural History.
Following a court trial, Franklin was found guilty of attempted, willful, deliberate, premeditated murder as alleged in count one (Pen. Code, §§ 664/187 & 189), during the commission of which a principal was armed with a firearm (§ 12022, subd. (a)(1)), and a principal personally used a firearm (§ 12022.53, subds. (b) & (e)(1)). It was further found that the offense was committed for the benefit or promotion of a criminal street gang (§ 186.22, subd. (b)). Franklin was also found guilty of assault with a semiautomatic firearm as alleged in count two (§ 245, subd. (b)), and it was found the assault was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)). Finally, the trial court found Franklin guilty of assault upon a police officer with a semiautomatic firearm as alleged in count three (§ 245, subd. (d)(2)), and that during the commission of the assault he personally used a firearm (§§ 12022.5, subd. (a) & 12022.53, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
At proceedings held on January 27, 2006, the trial court granted the People’s motion to “amend [the] special allegation within the meaning of . . . section 12022.53[,] [subdivision] (b) to . . . section 12022.5[,] [subdivision] (a)(1)” as to count one. Although section 12022.5 has a subdivision (a), it does not have a paragraph (1). We presume the trial court intended to allow amendment of the information to show a violation of section 12022.5, subdivision (a) and that the reference to subdivision (a)(1) is simply clerical error.
The trial court sentenced Franklin to the low term of five years in prison for his conviction of attempted, willful, deliberate, premeditated murder as alleged in count one, plus a four-year, mid-term enhancement for the finding a principal was armed with a firearm during the offense. In addition, the trial court imposed a term of 10 years for the finding the attempted murder was committed for the benefit of a criminal street gang. For his conviction of assault with a semiautomatic firearm as alleged in count two, the trial court imposed the middle term of six years in prison, the term to run concurrently to that imposed for count one. For his conviction of assault upon a police officer with a semiautomatic firearm as alleged in count three, the trial court imposed a concurrent middle term of seven years in prison. For Franklin’s personal use of a firearm during the offense, the court imposed a concurrent, middle term of four years in prison. In total, the trial court sentenced Franklin to 19 years in prison.
Following a later unreported discussion, the trial court indicated it had misspoken and had “ ‘meant to make count 3 the principal term, which would be the low base term of five years; four years, mid term, for the 12022.5[] allegation; and count 1 would be the concurrent term, although the court would have to still impose ten years for the gang enhancement, so the sentence is the same.’ ” As a result of the trial court’s resentencing, Franklin’s “final sentence was 19 years in prison.” The sentence consisted of a five-year, lower term as to count three, assault upon a police officer with a semiautomatic weapon (§ 245, subd. (d)(2)), plus a four-year middle term for his personal use of a firearm during the offense (§ 12022.5, subd. (a)). In addition, the trial court imposed a gang enhancement of 10 years pursuant to section 186.22, subdivision (b). For the attempted murder alleged in count one (§§ 664/187 & 189), Franklin’s sentence consisted of a five-year lower term, plus a four-year middle term for his use of a firearm pursuant to section 12022.5, subdivision (a), plus a ten-year gang enhancement pursuant to section 186.22, subdivision (b), the terms to run concurrently to those imposed for count three. The six-year term imposed for count two, the assault with a semiautomatic firearm (§ 245, subd. (b)), remained unchanged and was to run concurrently to the terms imposed for counts one and three.
On appeal, Franklin claimed multiple punishments imposed as to counts one and two violated section 654. The People conceded the error and we accepted the concession. In addition, Franklin asserted the trial court erred when it imposed a 10-year “gang” enhancement with regard to count three since the court had found the gang allegation to be not true as to that count. The People again conceded the error and we accepted the concession. Accordingly, this court vacated the sentence imposed and remanded the matter for resentencing.
Section 654 provides in relevant part: “(a) [a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
At proceedings held on July 10, 2007, the trial court sentenced Franklin to the low term of five years in prison for his conviction of attempted, willful, deliberate, premeditated murder (§§ 664/187 & 189) as alleged in count one. For Franklin’s personal use of a firearm during the commission of the crime (§ 12022.5, subd. (a)), the court imposed the middle term of four years in prison. With regard to the “gang allegation” (§ 186.22, subd. (b)), the trial court imposed a term of 10 years in prison.
Pursuant to section 654, the trial court stayed imposition of sentence as to count two, assault with a semiautomatic firearm (§ 245, subd. (b)), “pending the completion of the sentence on count 1.” As to count three, assault upon a police officer with a semiautomatic firearm (§ 245, subd. (d)(2)), the trial court imposed a concurrent middle term of seven years in prison. For the finding Franklin personally used a firearm during the commission of the offense (§ 12022,5, subd. (a)), the trial court imposed a concurrent middle term of four years in prison. In total, the trial court sentenced Franklin to 19 years in prison.
The trial court awarded Franklin 1,041 days of presentence custody credit, imposed a $1,000 restitution fine (§ 1202.4, subd. (b)), a stayed $1,000 parole revocation restitution fine (§ 1202.45) and a $20 court security fee (§ 1465.8, subd. (a)(1)).
On September 1, 2007, Franklin filed a timely notice of appeal from the judgment entered after resentencing.
This court appointed counsel to represent Franklin on appeal on November 19, 2007.
CONTENTIONS
After examination of the record, appointed appellate counsel filed in this court an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed on January 29, 2008, the clerk of this court advised Franklin to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied Franklin’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.