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                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,                                         G046789

                   v.                                                  (Super. Ct. No. 10NF2252)

SYLVESTER FRANKLIN,                                                    OPINION

     Defendant and Appellant.


                   Appeal from a judgment of the Superior Court of Orange 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.


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                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?”

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                                       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 (1995) 11
Cal.4th 434 (Martinez), “did 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.
              Martinez 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.” (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

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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, Sigala correctly held the phrase “touching need not be done in a
lewd or sexual manner” is consistent with Martinez. (People v. Sigala, supra, 191
Cal.App.4th at p. 701 [approving CALCRIM Nos. 1110 and 1120].)
              Defendant maintains People v. Cuellar (2012) 208 Cal.App.4th 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.” (Id. at p. 1070, italics omitted.) The
defendant argued “the second sentence is inconsistent with the first and negates the
requirement that the touching be done in a lewd or lascivious manner.” (Id. at p. 1071.)
Cuellar agreed the sentence, “[t]aken by itself,” was capable of the defendant‟s
interpretation and “[a]t best, it is unfortunate and possibly confusing,” faulting Sigala‟s
analysis as failing to “focus on just what information the second sentence is designed to
impart that is not already stated in the first sentence.” (Ibid.) It urged revising the
instruction to make “the two sentences . . . complement each other” and remove “any
arguable inconsistency.” (Id. at p. 1072.)
              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

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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 Cuellar that Martinez held only that section 288 “is
violated 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 Martinez (People 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.”


                                      DISPOSITION


              The judgment is affirmed.




                                                  RYLAARSDAM, J.

WE CONCUR:



O‟LEARY, P. J.



IKOLA, J.



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