People v. Franklin CA5

Filed 11/23/15 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F069520 Plaintiff and Respondent, (Super. Ct. No. VCF276119) v.

BRADLEY FRANKLIN, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. (Retired judge of the Tulare Superior Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Steven A. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

* Before Poochigian, Acting P.J., Peña, J. and Smith, J.

-ooOoo- INTRODUCTION Appellant Bradley Franklin was convicted of committing a lewd and lascivious act upon a child under 14, a felony (Pen. Code, § 288, subd. (a), count 1),1 arranging a meeting with a minor for lewd purposes, a felony2 (§ 288.3, subd. (a), count 2), and two counts of indecent exposure, a misdemeanor (§ 314, subd. 1, counts 3 and 4). An enhancement allegation was also found true that appellant had substantial sexual conduct with the victim (§ 1203.066, subd. (a)(8)). Appellant was sentenced to an aggregate term of nine years in prison. The court imposed various fines and fees, including a restitution fine of $1,000. Appellant was also ordered to submit to HIV testing. Appellant contends the prosecution committed misconduct by misstating the evidence during closing argument. He also asserts the restitution fine was erroneously imposed against him and the trial court’s order he submit to HIV testing was not supported by probable cause. We find no prosecutorial misconduct, but we will strike the restitution fine and remand to the trial court the HIV testing order for determination of whether it is supported by probable cause. FACTUAL SUMMARY Prosecution Case In June of 2012, B.F. went on a trip with her mother, father, older half-sister and half-brother (appellant), to visit her grandparents in Visalia, California. Appellant was 21 years old and B.F. was 13 years old.