P. v. Franklin
Defendant Tyrell Lovell Franklin was charged with the following crimes: assault by an inmate upon a correctional officer with force likely to cause great bodily injury (count 1 – Pen. Code,[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)).[2] A great bodily injury 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 serious bodily injury. (§ 243, subd. (d).)
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€
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