IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
May 13, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JONATHAN SCOTT FRANKLIN, DEFENDANT AND APPELLANT.
(Super. Ct. No. CRF090000373)
The opinion of the court was delivered by: Hoch ,j.
P. v. Franklin CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On July 27, 2009, defendant offered an undercover agent $1,500 to kill his estranged wife. He agreed to meet the agent later and provide a photograph of his wife along with a $1,000 cash retainer. On July 29, 2009, defendant met the agent; he reiterated his desire to have his wife killed, and offered to double the payment if her boyfriend was also killed. Defendant was arrested after giving the agent a photograph of his wife and ten $100 bills.
A post-arrest search of defendant's house found a hard drive containing child pornography in one of his laptop computers.
Defendant was charged with one count of solicitation for murder (Pen. Code, § 653f, subd. (b)),*fn1 one count of possession of child pornography (§ 311.11, subd. (a)), and two counts of attempted premeditated murder (§§ 664, 189, 187, subd. (a)). Defendant pled guilty to solicitation of murder and one count of attempted murder, the remaining attempted murder count was dismissed, and the child pornography count was dismissed with a Harvey*fn2 waiver. The trial court sentenced defendant to 10 years to life in prison, imposed various fines and fees, ordered $2,700 in victim restitution, ordered defendant to register as a sex offender (§§ 290, 290.006), and awarded 347 days' presentence credits, consisting of 302 days' custody and 45 days' conduct credits. (§ 2933.1.)
Defendant appeals. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests 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.
Defendant filed a supplemental brief contending: (1) he was not in a proper state of mind when he met the undercover officer; (2) he was entrapped into committing the offenses; (3) the use of a recording device by the undercover officer and the search of his home violated the Fourth Amendment; (4) he was not allowed to contact the lawyer he wanted to represent him; (5) discovery errors by the People; and (6) his sentence of 10 years to life is excessive.
Defendant's contentions regarding his state of mind, entrapment, discovery, and not being given a telephone book to contact counsel of his choosing are barred by the denial of a certificate of probable cause. (§ 1237.5.) His Fourth Amendment and sentencing contentions are appealable without a certificate of probable cause. (People v. Buttram (2003) 30 Cal.4th 773, 780; § 1538.5, subd. (m).)
Defendant claims it was unlawful for the undercover officer to wear a recording device because the People never demonstrated that more conventional investigative techniques were tried and failed or were too dangerous. A person has no expectation of privacy in a conversation with an apparent colleague who turns out to be an undercover officer. It does not violate the Fourth Amendment for the officer to simultaneously record the conversation with electronic equipment which he is carrying on his person. (United States v. White (1971) 401 U.S. 745, 749-751 [28 L.Ed.2d 453, 457-458].)
Defendant also contends the search of his home was unlawful because it uncovered evidence, rather than the fruits or instrumentalities of his crimes. Pursuant to a search warrant, police may search the place described in the warrant for contraband or evidence of a crime. (Illinois v. Gates (1983) 462 U.S. 213, 238-239 [76 L.Ed.2d 527, 548].) Defendant does not cite facts showing the warrant was not supported by probable cause or that the officers could not rely on the warrant in good faith. (United States v. Leon (1984) 468 U.S. 897, 922-923 [82 L.Ed.2d 677, 698-699].) His claim is without merit.
Defendant asserts his sentence of 10 years to life for attempted murder and solicitation for murder is excessive in light of his having no criminal record, the circumstances of the offense, his character references, alleged inaccuracies in the probation report, and the effect of his incarceration on his family.
We review the trial court's sentencing decision for abuse of discretion, and we will affirm unless the decision was arbitrary or irrational. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1582.)
The sentence was not an abuse of discretion. The trial court imposed the standard term of seven years to life for the attempted murder plus a consecutive low term of three years for the solicitation count. (§§ 3046, 664, subd. (a), 653f, subd. (b).) Defendant solicited the murder of his wife on two separate occasions, made a down payment for the murder, and offered a bonus payment if his wife's boyfriend was also killed. His contentions regarding the probation report rely on allegations outside the record, which we shall not consider.
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: HULL , Acting P.J. BUTZ ,J.