THE PEOPLE v. JOHN GLENN FRANKLIN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINIONFACTSSTATEMENT OF THE CASE

On December 23, 2008, appellant, John Glenn Franklin, was charged in an information with two counts of oral copulation of a child 10 years or younger (Pen.Code, § 288.7, subd. (b), counts 1, 2) ¹ and three counts of molestation of a child under age 14 (§ 288, subd. (a), counts 3, 4, 5).   At the conclusion of a jury trial on March 18, 2009, appellant was convicted of all counts.

On April 15, 2009, the trial court sentenced appellant to consecutive sentences of 15 years to life on counts 1 and 2. The court sentenced appellant consecutively to the midterm of six years on count 3 and to consecutive terms of two years on counts 4 and 5. Appellant's total sentence is 40 years to life.   The court imposed a restitution fine and granted applicable custody credits.   Appellant's appointed appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende ).   We will affirm the judgment.

C. was 11 at the time of trial.²  C. had lived with her mother, her mother's boyfriend (appellant), her own older brother and, at times, with appellant's sons T. and J.C. did not identify appellant in court.   C. had eczema and needed a medicinal lotion called Triamcinolone and Aveeno lotion applied to her body every night.   C.'s mother applied the lotion, but later let appellant do so.   When C. stayed with her father, he refused to apply the lotion and she had to apply it to herself.   On one occasion, appellant helped C. wipe herself after she suffered diarrhea.

When putting lotion on C., appellant did things she did not like.   Appellant made C. touch his “guy part” by grabbing her hand.   Appellant also touched C.'s “private” by grabbing his penis and rubbing it on C. Appellant would make C. suck on his penis.   C. explained that “little white stuff” would come out of appellant's “guy part.”   Appellant kissed C.'s stomach and her vagina.   C. was years old when appellant did these things.   She was 11 when appellant had C. orally copulate him and 10 when he touched her vagina with his penis.

Appellant got a tattoo of C.'s name at the time of her 11th birthday.³  Appellant told C. he would leave C.'s mother if she told anyone what was happening.   C. became tired of appellant's conduct and told her father and the police what appellant had done.   C. told a detective that appellant had shaved his pubic area and had red bumps on his testicles, a fact verified by the detective.   Appellant confirmed he applied lotion to C., wiping her when she had diarrhea and having her name tattooed on his back.

The detective set up a questioning process for C. called a Child Abuse Response Team (CART) interview.   A videotape of the interview was authenticated and shown to the jury.   A transcript of the interview was also admitted into evidence.   The CART questioner was Laura Boland from the district attorney's office.   C. said she was present to talk about her mother's boyfriend, appellant, who tried to have sex with her.

C. told Boland appellant would ask her if she wanted to have sex.   Even though she said no, appellant would try anyway.   The first time an incident occurred, C. was 10-and-a-half.   Appellant told C. to take off her clothes;  he took off his own clothes, and told C. to lie on the bed.   Appellant had C. move into different positions.   C.'s mother used to apply lotions on C.'s skin for her eczema.   The first time appellant molested C. he rubbed her vagina with his finger and penis and also licked it.   Appellant also kissed C. and touched her breasts.   Appellant grabbed C.'s hand and put it on his penis.   He made C. rub him until he ejaculated.   Appellant followed this routine four times.

There were 20 incidents in which appellant placed his lips on C.'s vagina.   On 10 to 15 occasions, appellant placed his penis on C.'s lips.   On three or four occasions appellant attempted to have intercourse with C. Appellant showed C. magazines and movies with naked people.   Appellant made C. watch the movies.

Appellant's son T. testified he and his brother J. felt left out because appellant treated C. better than them.   T. saw appellant play “CPR” with C. and they would suck on each other's tongues.   When appellant would put lotion on C., they would stay behind a closed door for 30 to 45 minutes.   T. saw appellant poke at C.'s breasts.   T. never heard anything when appellant was in the bedroom with C. and she seemed normal afterward.

C.'s father, D., testified he was in a custody dispute with C.'s mother, M.D. obtained temporary custody of C. after M. had a stroke.   D. initially learned about the molestations from a school official.   He now has full custody of C. D.'s father is a registered sex offender.   Before D. had full custody of C., D.'s father lived with him, at times, and he is in a wheelchair.   Because D.'s father is disabled, he now lives with D.D. admitted he made annoying phone calls to M.'s sister and would say he wanted to ejaculate on her tattoo.   D. was convicted of making annoying phone calls.

M. testified C. clung to appellant and called him “Daddy.”   C. was born with eczema and it took 30 to 45 minutes to apply her lotion every night.   To help M., appellant would put the lotion on C. because applying the lotion to C. hurt M.'s back.   C. never complained about appellant applying the lotion or claimed that appellant was molesting her.   C. worshiped the ground appellant walked on.   M. warned her children about inappropriate touching.   C. never complained that appellant touched her inappropriately.

According to M., C. would return from visits with D. and her eczema would get worse because he did not like to apply the lotion.   D. had a temper issue and threatened to take C. away.   C. was seeing a therapist.   M. explained that C. never complained to the therapist about being molested.⁴

D. filed a declaration stating that after her stroke, M. was in an irreversible, life-threatening coma.   The statement was not true, but D. obtained custody of C.M. stated that D. was a pathological liar.   D. was the kind of person who would get C. to make up allegations against appellant.   It was C.'s suggestion that appellant tattoo her name on his back.   Appellant planned to get tattoos of the names of the other children on their birthdays.

Appellant testified that M. asked him to take over application of the lotion on C. Appellant was never sexually aroused.   C. would approach appellant every night before bedtime and ask him to put on her medicine.   C. took off her own clothes.   When C. had diarrhea, appellant said it was very difficult to remove and he had to use a washrag to get it off.   Appellant denied poking at C.'s breasts.   Appellant denied playing a CPR game with C. He also denied sucking on C.'s tongue or sticking tongues out.

Appellant had C.'s name tattooed on him after she asked him to do so.   Appellant told C. it would not be a good idea to use his own razor to shave her legs because he shaved himself personally and it might cause her skin condition to break out.   Appellant described the skin condition around his genitals to C. because she wanted Nair for her legs, but appellant told her it would be bad for her skin condition.   Appellant never made C. watch pornography.   Appellant had never been arrested for molestation before and denied the allegations against him.

APPELLATE COURT REVIEW

Appellant's appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently.  (Wende, supra, 25 Cal.3d 436.)   The opening brief also includes the declaration of appellate counsel indicating that appellant was advised he could file his own brief with this court.   By letter on September 25, 2009, we invited appellant to submit additional briefing.   To date, he has not done so.

After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

FN1. Unless otherwise noted, all statutory references are to the Penal Code..  FN1. Unless otherwise noted, all statutory references are to the Penal Code.

FN2. Trial commenced on March 16, 2009..  FN2. Trial commenced on March 16, 2009.

FN3. A photograph of the tattoo was admitted into evidence as People's exhibit 2. An investigator testified the tattoo depicted a cougar or a cat and C.'s nickname..  FN3. A photograph of the tattoo was admitted into evidence as People's exhibit 2. An investigator testified the tattoo depicted a cougar or a cat and C.'s nickname.

FN4. During its deliberations, the jury asked to have M.'s testimony read back..  FN4. During its deliberations, the jury asked to have M.'s testimony read back.

THE COURT * FN*.  Before Dawson, Acting P.J., Kane, J., and Hill, J.