People v. Franklin

• Decision Date: 26 May 1994
• Docket Number: No. H010904,H010904
• Citation: 30 Cal.Rptr.2d 376,25 Cal.App.4th 328
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Leon Richard FRANKLIN, Defendant and Appellant.

Page 376

30 Cal.Rptr.2d 376

25 Cal.App.4th 328

The PEOPLE, Plaintiff and Respondent, v. Leon Richard FRANKLIN, Defendant and Appellant.

No. H010904.

Court of Appeal, Sixth District, California.

May 26, 1994.

Review Denied Aug. 25, 1994.

Jill M. Bojarski, Newport Beach and Jeffrey M. Evans, Santa Clara (Under appointment by the Court of Appeal), for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., and Richard A. Rochman, Deputy Atty. Gen., for plaintiff and respondent.

PREMO, Acting Presiding Justice.

A jury convicted Leon Richard Franklin of one count of continuous sexual abuse of a child under the age of 14 with substantial sexual contact (Pen.Code, §§ 288.5, 1203.066, subd. (a)(8)) and he was sentenced to 16 years in state prison. He appeals, contending that he was prejudiced by the exclusion of evidence relevant to the contested issues in this case and that there is no factual basis for the single factor in aggravation on which the court relied to impose the upper term of imprisonment. ¹

FACTS

In 1976, defendant met Diane R. She and her then boyfriend stayed with defendant for a few months in 1978 when her mother remarried, and Diane and defendant remained in contact over the years. After Diane married, her brother-in-law introduced defendant to the woman he married. The latter marriage ended in divorce less than a year later.

In March 1991, defendant needed a place for his six-year-old daughter Nile to stay until the end of the school year. Diane and her husband Steve offered to have her stay with them and their children, Shayna, then 5, Steven, 9, and Sean, 6. Nile shared Shayna's room.

A week after Nile came to stay with them, defendant also moved in. He slept on the sofa bed in the den, or when his back bothered him, on the hard floor of a spare room used as an office.

When the child care provider had to quit in mid-May, defendant volunteered "to keep the kids." Defendant and Shayna would drive Nile to kindergarten at noon. Then they would pick up Sean from school at 2:30 and Steven at 3:30. Diane and Steve would pick up Nile on their way home from work.

Nile went to Los Angeles to live with her mother in mid-June, and defendant moved out in August. The children, including Shayna, missed him and asked when he was coming back. Everyone was upset when defendant accepted an invitation to the children's soccer game in November but failed to attend.

In January 1992, five months after defendant had left, Diane heard a conversation between Sean and Shayna in which Shayna said she did not like appellant. When Diane inquired, Shayna said she "hate[d]" him. Diane wanted to know why, and Shayna said, "I can't tell you, mommy, 'cause it's really gross." She said, "[H]e did something to me, and what he did to me he made me do to him."

Shayna finally stated that defendant had licked her "private" and made her lick his "private," and that it was a secret. Diane told her she was saying serious things, and that they would have to call the police.

Shayna said, "yes," and announced that she had "another" secret: defendant kissed her and put his tongue in her mouth. Shayna described appellant's exposing himself and masturbating in front of her. She said he made her watch a pornographic movie, and acted out the conduct in the movie.

However, Shayna "shut down" when detective Greg Braze arrived, and refused to say anything more than defendant had done something "gross." Braze asked Diane to interview Shayna in another room and report her answers to him. He told her not to ask leading questions or suggest answers, but to use general, open-ended questions. When he made this request, he was not aware that Diane had been molested as a child. If he had known, he probably would have listened to the interview through the door so he would also be a witness.

The interview lasted 40 minutes. Diane emerged two or three times to relate what she had learned. Each time, Braze sent her back with new directions and the admonition against leading questions and suggested answers. Shayna confirmed the mutual licking of genitals which occurred at least twice in her bedroom and possibly in the master bedroom; french kissing; appellant's exposing himself to her once while he was in the bathtub and once in the shower; appellant's telling her he was going to stick his penis inside her when she was older; appellant's making her watch pornographic movies; and appellant's promise to take her to Disneyland if she kept this secret.

Steve and Diane did not own any pornographic movies but had the Playboy channel on their bedroom television set, which also had a VCR. Steve testified he told defendant to make sure the children did not watch the Playboy channel.

Shayna repeated the facts to a Child Protective Services worker, a marriage-family-children's counselor who was an expert in the area of child abuse, and at trial. At trial she stated defendant had been "humping her" and that it hurt, although at the preliminary hearing she said that it did not hurt. She used the word " 'horny,' " and said that she and defendant watched pornographic movies in her parents' bedroom while her brothers were outside playing. She described using hand signals that meant that she wanted to do "a little bit, a lot, or no."

Prosecution experts testified that Shayna's hymenal rim was "very, very stretched out ... strikingly abnormal and strikingly different from normal children." Defense experts testified (from photographs) that Shayna's hymen appeared to be normal, that her condition was consistent with penetration but was not conclusive evidence of penetration.

Shayna had not complained of pain nor had her parents noticed anything unusual about Shayna or her clothing when they gave her a bath or washed her clothes. However, both parents noticed Shayna pulling at her underpants shortly after defendant moved into their home. Shayna complained that her panties were too tight, but bigger pants did not seem to solve the problem. Shayna's A police officer who qualified as an expert in Child Sexual Abuse Accommodation Syndrome testified "[to] dispel[ ] a lot of [the] myths of how we would normally think children would react and how we would expect [children] to react when they're confronted with a problem of molestation." He testified that children sometimes act out in response to the stress and guilt that molestation lays on them, that sometimes they regress in their behavior, and that sometimes they improve their conduct in an attempt to "do everything right, then maybe this will stop." He added that delayed, conflicting, and unconvincing reporting is common. He also stated that any of the behavior he described could also be exhibited by children who were not abused.

                grandmother noticed a discharge in her panties and "pink" in the vaginal area when Shayna stayed with her.  She asked Shayna if she was all right, but Shayna "kind of ... pull[ed] back."   Diane talked to Shayna's pediatrician about the matter and reported to her mother that it was "okay."
                

The defense contended that the molestations simply did not happen. "The defense also attempted to show that Shayna had precocious sexual knowledge and had dreamt or fantasized about sexual matters. Diane testified to one occasion when Shayna told her that she had seen Diane kissing [defendant]. After discussion, it was clear to Diane that it was a dream. However, Shayna believed at first that it had really happened. Shayna had also mentioned the incident to [defendant] and never told him that it was something she had dreamt." Both defendant and Diane testified that they had no romantic interest in each other.

The defense also sought to introduce evidence that Shayna had told her brothers that Diane had come into the room during the night and had licked her vagina. The trial court excluded the evidence because defendant did not comply with the procedural requirements of Evidence Code section 782. ²

For the same reason, the court also refused to allow defendant to attempt to elicit from Diane evidence that she had told defendant to be sure that none of the children watched the Playboy channel and that she had caught the children watching it. Diane testified she had not discussed this subject with her husband. The court also refused to allow Diane to be questioned whether she had reprimanded Shayna for trying to go into the bathroom while her brothers were taking a bath.

The jury did hear from Steve that Diane told him she had caught the boys watching the Playboy channel, however, he did not recall whether she said that Shayna had been present too. Steve confirmed that he asked defendant to make sure that the children did not watch the Playboy channel.

CONTENTIONS ON APPEAL

Defendant contends that the trial court erred in excluding evidence of Shayna's "precocious sexual knowledge" pursuant to section 782. He contends that the evidence did not involve sexual conduct, and that it was relevant to the contested issues in this case.

Second, defendant complains that the trial court erred in choosing the upper term based solely on the factor in aggravation that defendant abused a position of trust. Defendant reasons that violation of a position of trust is a factor which is present in virtually all resident child molestation cases. Consequently, this factor can be used to aggravate a sentence only if defendant's breach of trust is more egregious than that in the average case. Defendant contends that the record does not support such a finding in this case.

EXCLUSION OF EVIDENCE OF SEXUAL CONDUCT

At trial, defendant sought to introduce evidence "to show that Shayna had obtained her knowledge of the sexual acts which she claimed [defendant] had perpetrated on her not from [defendant's] actions but from other sources, such as the Playboy channel and her observations of...