P. v. Franklin
Filed 1/15/14
P. v. Franklin CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
TYRELL LOVELL
FRANKLIN,
Defendant and Appellant.
F064905
(Kings Super. Ct. No. 11CM7577)
THE COURT
APPEAL
from a judgment of the Superior Court of
Kings County. James T. Laporte,
Judge.
Jennifer
A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant
Attorney General, Stephen G. Herndon and Alice Su, Deputy Attorneys General,
for Plaintiff and Respondent.
-ooOoo-
PROCEDURAL
BACKGROUND
Defendant
Tyrell Lovell Franklin was charged with the following crimes: assault by an
inmate upon a correctional officer with force likely to cause great
Pen. Code,
title="">[1] § 4501); assaulting a correctional officer with a deadly
weapon (count 2 – § 4501); battering a person not in custody by an inmate
(count 3 – § 4501.5); battery resulting in serious bodily injury (count 4 –
§ 243, subd. (d)); and resisting an executive officer (count 5 – § 69.) It was further alleged that defendant had
suffered a prior serious felony conviction (§§ 667, subds. (a)(1),
(b)-(i); 1170.12, subds. (a)-(d)), committed the offenses while confined
in a state prison (§ 1170.1, subd. (c)).
enhancement (§ 12022.7, subd. (a)) was alleged as to all counts.
On counts 1 and 2, the jury convicted
defendant of the lesser-included offense of misdemeanor assault. (§ 240.)
The jury found defendant guilty as charged on counts 3, 4 and 5. The only great bodily injury enhancement the
jury found true was the enhancement on count 4 – battery resulting in
The
court sentenced defendant to an aggregate term of 16 years in prison. The court refused defense counsel’s request to
stay execution of the punishment on count 4 under section 654. The court stated the following at the
sentencing hearing:
“I think the test is elements with
reference to 654. And, also, with
reference to the issue of whether there’s, as they say, the question of whether
the Count 4 and Count 5 have the same elements and, also, the same intent. And I guess the argument is that one of them
has a sentient requirement knowing that you are dealing with an executive
officer, which is different from the battery with serious bodily injury count.…â€
TRIAL EVIDENCE
On
July 12, 2011, David Castillo was working as a correctional officer at Corcoran
State Prison. That morning, Castillo was
performing a security check of an area that included defendant’s bunk. Castillo noticed that a locker in defendant’s
bunk area had been pulled away from the wall and was positioned in an
unauthorized manner.
name="_ftnref4" title="">[3] Castillo told defendant his
locker was positioned in an unauthorized manner, and he was in trouble. Defendant “became very agitated,†“quickly
stood up,†“and said, ‘I don’t give a f**k what you write up.’ †Castillo told defendant to quit using vulgar
language and began to walk away.
Defendant said, “ ‘Let’s see what happens to you if you come up
front and get your hair cut.’ â€
Castillo took this as a threat
because defendant worked as the “staff administration
barber†and had access to scissors.
At
the time, Castillo was the only officer in the dorm. Castillo ordered defendant to turn around so
he could place him in restraints.
Defendant replied, “ ‘For what?’ †Castillo activated his personal alarm device,
which sounds an audible alarm. Castillo
told defendant to get down. Defendant
did not comply, but rather turned around and faced away from Castillo. Castillo approached defendant and placed his
left arm on defendant’s left shoulder.
Castillo told defendant to put his hands behind his back. Again, defendant did not comply. Defendant quickly turned around, grabbed hold
of Castillo and tried to force him to the ground. Castillo grabbed hold of defendant’s
chest. Defendant began to push Castillo
backwards, and Castillo resisted.
Castillo felt defendant was stronger than he was. Defendant hit Castillo’s head against a
corner of a locker. Castillo felt
extreme pain in his left ear area. Castillo felt and observed blood dripping from
his wound. Castillo began pushing him
backwards, and defendant continued trying to force Castillo to the ground. Castillo punched defendant in the face. Defendant fell to the ground, got back up and
began swinging his arms in Castillo’s direction “as if he were going to try to
hit me.†Defendant grabbed
Castillo. Again, defendant tried to pull
Castillo to the ground. Castillo told
defendant to “get down.†After Castillo
issued the order four times, defendant finally complied.
DISCUSSION
I.
THE GREAT BODILY
INJURY ENHANCEMENT MUST BE STRICKEN
Defendant
contends there was insufficient evidence to support the jury’s true finding on
the great bodily injury enhancement to count 4.
In the alternative, defendant posits that a conviction for violating of
section 243, subdivision (d) may not be enhanced by a great bodily injury
enhancement. We agree with the latter
contention and therefore strike the great bodily injury enhancement.
Section
12022.7, subdivision (a) provides for enhancing a defendant’s sentence
when he or she has willfully inflicted “great bodily injury†on a person, other
than an accomplice, in the commission of a felony. (§ 12022.7, subd. (a).) That provision does not apply, however, when
infliction of great bodily injury is an element of the underlying offense. (§ 12022.7, subd. (g).) Thus, the question presented by subdivision
(g) is whether the “infliction of great bodily injury†(ibid) is an element of the offense described in section 243,
subdivision (d).
“ ‘
[S]erious bodily injury,’ as used in section 243, is ‘ “essentially
equivalent†‘ to ‘ “great bodily injury,†’ as used … in the
section 12022.7 enhancement .…†(
1142, 1149.) Thus, in
1373 (Hawkins), the Court of Appeal held
that a great bodily injury enhancement under former section 12022.7 (added by
Stats. 2010, ch. 711, § 5, eff. Jan. 1, 2012; amended by Stats. 2011, ch.
296, § 226)
name="_ftnref5" title="">[4] could not be applied to a conviction for violating section 243,
subdivision (d). (See generally
The parties see no basis for distinguishing Hawkins and neither do we.
We will order the
jury’s true finding on the great bodily injury enhancement stricken.
II.
DEFENDANT’S
SENTENCES ON COUNTS 4 AND 5 DO NOT VIOLATE SECTION 654
Section 654,
subdivision (a) states, in part:
“An 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.â€
This provision
prohibits multiple punishments for: (1)
a single act; (2) a
single omission; or (3) an indivisible
course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.)
Because defendant
was sentenced to separate terms on counts 4 and 5, we assume the court found
that defendant committed the two crimes pursuant to separate objectives. (See People
v. Islas (2012) 210 Cal.App.4th 116, 129.)
separate objectives for substantial evidence. (Ibid.)
We conclude the
evidence supports a finding that the physical acts at issue were done pursuant
to separate objectives.
First, there was
evidence that defendant’s act of threatening Castillo before the battery was an
attempt to deter Castillo from writing defendant up for the improper locker
positioning. Castillo told defendant his
locker was positioned in an unauthorized manner and that he would be written up
for the infraction. Defendant “became
very agitated,†“quickly stood up,†“and said, ‘I don’t give a f**k what you
write up.’ †Castillo told
defendant to quit using vulgar language and began to walk away. Defendant said, “ ‘Let’s see what
happens to you if you come up front and get your hair cut.’ †The evidence suggests this threat was meant
to either deter Castillo from writing defendant up for the improper locker
positioning, or to threaten retaliation if Castillo followed through.
In contrast to
defendant’s objective in threatening Castillo, defendant’s apparent objective
in battering Castillo was to resist and frustrate Castillo’s attempts to
restrain him.
name="_ftnref8" title="">[7] After defendant threatened
Castillo, but before any violence occurred, Castillo told defendant to get
down. Defendant did not comply, but
rather turned around and faced away from Castillo. Castillo approached defendant and placed his
left arm on defendant’s left shoulder.
Castillo told defendant to put his hands behind his back. Again, defendant did not comply. Defendant quickly turned
around, grabbed hold of Castillo and tried to force him to the ground.
Thus, the
evidence supports the court’s finding that defendant acted pursuant to separate
objectives. Specifically, the evidence
supports an inference that the battery was an act of physical defiance in
response to Castillo’s attempts to restrain defendant. The threatening verbal defiance that preceded
the battery was apparently done in retaliation for Castillo indicating that he
would write defendant up for the improper locker positioning. Because there is substantial evidence of
separate objectives, we will not disturb the trial court’s ruling on the
section 654 issue.
DISPOSITION
The jury’s true
finding on the great bodily injury enhancement attached to count 4 is stricken.
The matter is remanded for
resentencing. In all other respects, the
judgment is affirmed.
Levy, Acting P.J., Kane, J. and Poochigian, J.
otherwise noted.
