P. v.
Filed 4/25/13 P. v. Franklin CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and
Respondent,
v.
SYLVESTER FRANKLIN,
Defendant and
Appellant.
G046789
(Super. Ct.
No. 10NF2252)
O P I N I O
N
Appeal from a judgment
of the Superior Court
of
County, Lance Jensen, Judge.
Affirmed.
Donna L. Harris, under
appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris,
Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting
and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and
Respondent.
*
* *
A
jury convicted defendant of committing a lewd act on a child under the age of
14. (Pen. Code, § 288, subd. (a); all
further statutory references are to this code.)
The trial court sentenced defendant to eight years in state prison. Defendant contends the court erred in
instructing the jury with CALCRIM No. 1110.
Finding no error, we affirm the judgment.
FACTS
Defendant, a 37-year-old
man, was found in a bedroom with 12-year-old G.C., having entered through a
window with G.C.’s help. To prevent
entry by her grandmother, siblings and cousins, who also lived in the apartment,
G.C. blocked the door to the room with a television set. When G.C.’s grandmother began screaming
because she could not open the door, G.C.’s brother assisted her and was able
to push it open enough to see his sister in bed, under the covers, with a
man. Defendant came out of the bedroom
carrying his pants and left the apartment, followed by G.C. Both G.C.’s brother and sister saw and
recognized defendant, and a swab taken from G.C.’s breast was determined to
contain defendant’s DNA.
G.C. was initially
argumentative and uncooperative when confronted by police, telling the officer
the person in the bedroom with her was her junior high school aged
boyfriend. She later told a social
worker she had been with defendant and that although they had previously had
sex about 10 to 15 times, they did not do so the night they were
discovered.
At trial, G.C. testified
she had been dating defendant for five months and had had sex with him in his
car and in another apartment in the complex where she lived. On the night in question, defendant had taken
his pants off and the two were laying in bed kissing. G.C. admitted defendant had sent her a text
message on her cell phone asking, “Can you still feel me in you?â€
DISCUSSION
Appellant
argues the jury should not have been instructed with former CALCRIM No. 1110
because its statement “[t]he touching need not be done in a lewd or sexual
manner†conflicts with section 288, subdivision (a)’s requirement of a “lewd or
lascivious act†and “effectively deleted an element of the offense from the
jury’s consideration or misdirected the jury as to the element.†He acknowledges People v. Sigala (2011) 191 Cal.App.4th 695 (Sigala) determined otherwise in a prosecution under section 288.5,
subdivision (a) (continuous sexual abuse of a child under 14), holding only the
intent must lewd and lascivious, not the touching itself (id. at p. 700). But he
claims Sigala was wrongly decided
because the case it relies on, People v.
Martinez
not hold that the touching required in a prosecution for violation
of . . . section 288 or 288.5 need not be done in a lewd or
sexual manner.†We disagree.
specifically rejected the argument section 288, subdivision (a) is violated
only if a defendant touches a child in “an inherently lewd manner,†concluding
“‘any touching’ of an underage child committed with the intent to sexually
arouse either the defendant or the child†satisfies the statute. (People
v. Martinez, supra, 11 Cal.4th at p. 442.)
It explained a defendant’s intent or purpose has always been “the ‘gist’
of the offense†or the controlling factor, rather than the “nature of the
offending act,†and even an act that appears outwardly innocent falls within
the statute if the necessary intent is present. (Id.
at p. 444.) As long as “sexual
gratification [is] presently intended at the time [a] ‘touching’
occurs[,] . . . the form, manner, or nature of the
offending act is not otherwise restricted.â€
(Ibid.) According to the court, “the lewd character
of an activity cannot logically be determined separate and apart from the
perpetrator’s intent†and routine acts such as cuddling and grooming “may also
be undertaken for the purpose of sexual arousal. Thus, depending upon the actor’s motivation,
innocent or sexual, such behavior may fall within or without the protective
purposes of section 288[ and] . . . the only way to
determine whether a particular touching is permitted or prohibited is by
reference to the actor’s intent as inferred from all the circumstances.†(Id.
at p. 450.) Given these statements,
“touching need not be done in a lewd or sexual manner†is consistent with
v. Sigala, supra, 191 Cal.App.4th
at p. 701 [approving CALCRIM Nos. 1110 and 1120].)
Defendant maintains
1067 (Cuellar), presents the better
view. We are not persuaded. The instruction in Cuellar stated in part:
“Lewd or lascivious conduct is any willful touching of a child
accomplished with the intent to sexually arouse the perpetrator or the
child. The touching need not be done in
a lewd or sexual manner.†(
inconsistent with the first and negates the requirement that the touching be
done in a lewd or lascivious manner.†(
agreed the sentence, “[t]aken by itself,†was capable of the defendant’s
interpretation and “[a]t best, it is unfortunate and possibly confusing,â€
faulting Sigala’s analysis
information the second sentence is designed to impart that is not already
stated in the first sentence.†(
It urged revising the instruction to make “the two
sentences . . . complement each other†and remove “any
arguable inconsistency.†(
Cuellar’s critique of Sigala is
inapplicable because the instruction in this case does not contain the first
sentence found in those cases. Rather,
the jury here was instructed the prosecution had to prove “one, the defendant
willfully touched any part of a child’s body either on the bare skin or through
the clothing; [¶] two, the defendant willfully caused a child to touch her own
body, the defendant’s body, or the body of someone else, either on the bare
skin or through the clothing; [¶] three, the defendant committed the act with
the intent of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of himself or the child; [¶] and four, the child was under the
age of 14 years at the time of the act.
[¶] The touching need not be done
in a lewd or sexual manner.
[¶] . . . [¶]
Actually arousing, appealing to, or gratifying the lust, passions, or
sexual desires of the perpetrator or the child is not required.†Defendant has not shown this instruction
lightens the prosecution’s burden or that it confused the jury.
We also disagree with
even though an intimate part of the body is not touched.†(People
v. Cuellar, supra, 208
Cal.App.4th at p. 1071.) Although that
was one of the issues raised by the defendant and rejected by
v. Martinez, supra, 11 Cal.4th at
pp. 451-452), its actual holding was “that section 288 is violated by ‘any
touching’ of an underage child accomplished with the intent of arousing the
sexual desires of either the perpetrator or the child.†In our view, “any touching†includes one not
“done in a lewd or sexual manner.â€
DISPOSITION
The judgment is
affirmed.
RYLAARSDAM,
J.
WE CONCUR:
O’LEARY, P.
J.
IKOLA, J.
