P. v. Franklin CA4/3

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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?”