Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS090896
McAdams, J.
Defendant Daniel Johnson was convicted by jury of one felony count of indecent exposure with a prior (Pen. Code, § 314, subd. (1), count 1) and one misdemeanor count of engaging in lewd conduct in public (§ 647, subd. (a), count 2). In a bifurcated proceeding, defendant admitted that he had one prior conviction for indecent exposure. After Defendant admitted enhancement allegations that he had served three prior prison terms (§ 667.5, subd. (b)), the court struck an allegation that he had served a fourth prior prison term.
All further statutory references are to the Penal Code.
On the indecent exposure count, the court sentenced defendant to the two-year midterm, plus one year for each of the prison priors, for a total of five years in prison. On the lewd conduct in public count, the court sentenced defendant to 183 days in jail, which was deemed served. The court assessed fines and fees on both counts.
On appeal, defendant contends that the court erred when it instructed the jury on indecent exposure pursuant to CALCRIM No. 1160 that “[i]t is not required that another person actually see the exposed genitals.” He contends that even if the instruction was technically correct, his counsel was ineffective when she failed to object to the instruction’s lack of clarity. He also asserts that his punishment for “solicitation of lewd conduct” on count 2 should have been stayed pursuant to section 654.
On reviewing this matter, we observed that although defendant was charged with soliciting lewd conduct, the jury was instructed regarding another form of disorderly conduct proscribed by section 647, subdivision (a): engaging in lewd conduct in a public place. Moreover, the prosecution argued lewd conduct in public and the jury convicted defendant of committing a “Lewd Act in Public.” We therefore requested supplemental briefing from the parties, asking how this procedural history impacts defendant’s contention that the court should have stayed his punishment on count 2. We also asked the parties to brief the questions whether lewd conduct in public is a lesser-included offense of indecent exposure and whether this court should therefore dismiss count 2.
We conclude that there was no error in the jury instructions on indecent exposure and reject defendant’s claim that his counsel was ineffective. We hold that lewd conduct in public is not a lesser included offense of indecent exposure, agree that the punishment imposed on count 2 must stayed pursuant to section 654, and modify the judgment accordingly.
Facts
Twin sisters Twin A and Twin B lived in Seaside and worked in Pacific Grove. They did not own a car and walked to work each day. They usually left their house between 2:00 and 2:30 a.m. and arrived at work between 5:00 and 5:30 a.m.
The twins have the same initials. Since they are twins, use of their first names may defeat the purposes of protective nondisclosure. We have therefore elected to refer to the sisters as Twin A and Twin B.
The twins testified that on December 6, 2008, they left home between 2:00 and 2:30 a.m. As they walked down their street, they saw defendant standing on the sidewalk across the street, in front of his pick-up truck. Defendant then stepped into the middle of the street. He was naked. Although it was “very cold” outside, he was not wearing any clothing.
Twin A was walking on the left-hand side of the sidewalk, closest to defendant. She “glanced over” and saw his penis. She stated that he had one or both of his hands on his penis. But, she testified twice that she saw his penis.
Twin B was on the right-hand side of the sidewalk. She saw defendant’s hand on his penis, but did not see his penis. She stated that his penis “was out, ” but “his hand was where” his penis was. She also testified that defendant was making a “back and forth body movement” with his “hip, with the body, and with the hand.”
Twin A recognized defendant. For three or four months prior to the incident, she saw him daily at the convenience store around the corner from her house. She said “hi” to him and gave “him change all the time.” During that time, she also saw him seated in his pickup truck, which was often parked near her house. She told the jury she was sure it was defendant. Twin B, on the other hand, was not familiar with defendant and did not recognize the man in the street.
Defendant said, “Twins, twins, do you want to fuck? Do you want to fuck?” This made Twin A feel intimidated and “like a prostitute.” Twin B thought defendant’s conduct was inappropriate; she was offended and decided to call the police. Twin B told her sister to turn her head and said, “Come on. Walk faster. Let’s go. Let’s go. Let’s go.” The twins walked to the convenience store, but the store was too busy, so they walked to a taqueria on the next block, where Twin B used a pay phone and called 911.
The transcript of the 911 call was in evidence. Twin B reported that there as a “naked” man in the street who was “ja[c]kin off, ” with “his pants down” and “no clothes on.” Twin B did not tell the dispatcher who she was. The twins did not want to stay and talk to police because they needed to get to work.
Twin B estimated that she called 911 between 2:30 and 2:45 a.m. According to police records, the call came in at 3:27 a.m. Twin A conceded that she could be mistaken about the time that they left their house that day and Twin B testified that once in a while they left home around 3:00 a.m.
Officer Patricia Perez was dispatched to the scene at about 3:27 a.m. When she arrived, defendant was seated in the passenger seat of his pick-up truck, clothed in a dark jacket and pants. Officer Perez did not see any naked persons in the area. At trial, the parties stipulated to defendant’s various locations between 2:00 a.m. and 3:53 a.m., including a stipulation that he was on the block where the incident occurred between 3:05 and 3:53 a.m.
At the time of the incident, defendant was on parole in another matter and subject to electronic monitoring with a “GPS Tracking device.” The times and locations in the stipulation were based on the electronic record of his whereabouts.
Days after the incident, the twins ran into two police officers and asked them about this case. One of the officers, Officer Borges, subsequently showed both women a photo line-up. Twin A picked defendant’s photo from the line-up and told Officer Borges she was 100 percent sure he was the man she saw that night. Twin B identified someone else as the perpetrator, but said she was unsure of her identification.
Sharon L. testified that she saw defendant in a park in Seaside on July 3, 2004, standing near a public restroom with his pants down around his ankles; he was not wearing underwear and he was masturbating and ejaculating. She saw his penis. She asked a nearby storeowner to call the police.
Discussion
I. Jury Instruction on Indecent Exposure; CALCRIM No. 1160
A. Instruction at Issue
The trial court instructed the jury on the elements of indecent exposure pursuant to CALCRIM No. 1160 as follows: “The defendant is charged in count 1 with indecent exposure in violation of Penal Code section 314. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant’s actions, AND [¶] 2. When the defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain an advantage. [¶] It is not required that another person actually see the exposed genitals.”
B. Parties’ Contentions
Defendant contends that the court erred when it instructed the jury that for the defendant to be guilty of indecent exposure, “[i]t is not required that another person actually see the exposed genitals.” He contends that this portion of the instruction, which is based on People v. Carbajal (2003) 114 Cal.App.4th 978, 986 (Carbajal), is an incorrect statement of the law, because it allows for a conviction of indecent exposure in a case such as this where the defendant’s genitals are covered by his hand and the victim does not directly observe the defendant’s genitals. He argues that “[i]f the jury believed [Twin B’s] testimony that she did not see [defendant’s] penis, and disbelieved [Twin A’s] testimony that she did see [defendant’s] penis, the instructions improperly allowed the jury to convict [defendant] of indecent exposure even if [his] genitals were covered... and, therefore, not exposed.” Defendant argues that Carbajal was wrongly decided and that the error violated his state and federal due process rights and his Sixth Amendment right to a jury trial.
The Attorney General contends that defendant’s claim is meritless, because a victim’s direct observation of the defendant’s genitals is not an element of the offense. Moreover, one of the victims (Twin A) directly observed defendant’s genitals.
C. Standard of Review
Errors in jury instructions are questions of law, which we review de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.)
D. General Principles Regarding Indecent Exposure
Section 314 provides in relevant part: “Every person who willfully and lewdly...: [¶] 1. Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby... [¶]... is guilty of a misdemeanor. [¶]... [¶] Upon the second and subsequent conviction under subdivision 1 of this section, ..., every person so convicted is guilty of a felony....”
Generally, the offense of indecent exposure requires proof of two elements: “ ‘(1) the defendant must willfully and lewdly expose the private parts of his [or her] person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.’ ” (People v. Massicot (2002) 97 Cal.App.4th 920, 926 (Massicot), quoting People v. Swearington (1977) 71 Cal.App.3d 935, 943 (Swearington).)
E. Relevant Case Law and Analysis
Citing Massicot, defendant argues that the jury instructions were incorrect because they allowed for conviction for conduct that is not “exposure” within the meaning of section 314 in cases such as this where the defendant’s genitals are covered by his hands.
The female victim in Massicot was a night clerk at an inn. The defendant appeared outside the night window of the inn on three separate occasions, wearing women’s lace panties and a lace bra under a robe or a shirt. Although the panties covered his genitals, his buttocks were exposed. The defendant lifted the robe or shirt, exposing the female undergarments, as well as his bare shoulders, thighs, and buttocks to the clerk. (Massicot, supra, 97 Cal.App.4th 920, 922-923.) The People conceded that the defendant had not exposed his genitals and the issue on appeal was whether, by displaying his bare shoulders, thighs and buttocks to the victim, the defendant “exposed his ‘person’ within the meaning of” section 314. (Id. at p. 925.) The court observed that “[a]nalysis of this phrase of the indecent exposure statute is curiously absent in California decisional law” and concluded that “[p]erhaps the dearth of judicial interpretation of the word ‘person’ in section 314 results from the fact that convictions under the statute have uniformly concerned exposure of the genitals, in particular the penis. (People v. Succop (1967) 67 Cal.2d 785, 787... [defendant stood nude outside his home and moved his hand over his private parts in the presence of women and children]; People v. Merriam (1967) 66 Cal.2d 390, 392-393..., disapproved on another point in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 882... [in first count, defendant ‘exposed himself and was holding his penis in his hand’; in second count, defendant appeared naked, masturbating in victim’s apartment]; People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1765... [defendant entered residences nude; court found specific intent to commit felony indecent exposure despite the fact one victim could not see his genitals because a dresser blocked her view]; People v. Sanchez (1965) 239 Cal.App.2d 51, 53... [officer saw defendant expose his penis and begin masturbating];....)” (Massicot, at pp. 926-927.) The court observed that the common law offense of indecent exposure targeted “exhibitionism, or genital exposure” and “requires display of genitals.” (Id. at pp. 928, 930.) Interpreting the statutory language, the court relied on dictionary definitions of “expose” and “person, ” observing that the “definition of the word ‘expose’ is to cause to be visible or open to view.’ (Merriam-Webster’s Collegiate Dict[ionary (10th ed. 1999)] p. 410.” (Id. at p. 926.) The court held that “the only reasonable construction of the phrase ‘[e]xposes his person’ within section 314 is that it means the display of a person’s entirely unclothed body, including by necessity the bare genitals.” (Id. at p. 924.) Since the defendant in Massicot had not exposed his bare genitals, the court concluded that his convictions for indecent exposure were not supported by substantial evidence and reversed the judgment. (Id. at pp. 922, 932.)
Defendant relies on a similar dictionary definition and argues that the genitals “must be uncovered and visible in order to be ‘exposed.’ ” Thus the issue is: applying the dictionary definition of “expose, ” does the requirement that the genitals be visible necessarily require direct evidence that someone saw the exposed genitals, or can the trier of fact rely on circumstantial evidence that the genitals were exposed to view?
The Court of Appeal addressed this question in Carbajal, where there was no direct evidence that anyone saw the defendant’s naked genitals. In Carbajal, a restaurant cashier observed the defendant on two different occasions apparently masturbating at a table. The first time, “defendant placed his fist inside his shorts and moved his hand up and down for about 5 to 10 minutes.” (Carbajal, supra, 114 Cal.App.4th at p. 981.) A few weeks later, the defendant engaged in similar conduct, except that he also “ejaculated onto the floor beneath the table. The area had been clean before [the] defendant sat there. Prior to leaving the restaurant, [the] defendant wiped his hand off with a napkin and threw a newspaper on top of the puddle of semen.” (Ibid.) The cashier did not see the defendant’s penis on either occasion. (Ibid.) She was not sure whether “defendant had his fist on his penis during the first incident, but the second time she was sure that he did. On that occasion, defendant wore a t-shirt that fell below his crotch and a pair of loose-fitting, knee-length shorts. Although [the cashier’s] view of [the] defendant’s genitals was partially obscured by chairs and by his clothing, she could tell he had taken his penis out of his shorts while holding it in his fist because she could see the skin of his fist ‘[w]hen he made strong movements....’ She recognized the white substance deposited on the floor underneath the table as semen.” (Ibid.) The trial court granted the defendant’s motion for acquittal with regard to the first incident for lack of sufficient evidence and the jury found him guilty of indecent exposure relating to the second incident. (Ibid.)
The appellate court stated that “ ‘[a]t common law, the “indecent exposure” of the private parts of a person to public view was treated as a nuisance and punishable as a misdemeanor. It was not required that the exposure be observed; it was necessary merely that the exposure occur in a public place.’ ” (Carbajal, supra, 114 Cal.App.4th at p. 983, quoting 3 Wharton’s Criminal Law (15th ed.1995) § 308, pp. 196-200.) After a comprehensive review of the common law and cases from other jurisdictions, the court concluded that a conviction for indecent exposure under section 314 “requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant’s genitals. Thus, we will uphold defendant’s conviction for indecent exposure in the absence of evidence of any direct visual observation of his genitals so long as there is sufficient circumstantial evidence to show that actual exposure occurred.” (Carbajal, at p. 986.)
The Carbajal court also held that there was sufficient circumstantial evidence that the defendant “actually exposed his naked genitals.” (Carbajal, supra, 114 Cal.App.4th at p. 987.) That evidence included the cashier’s “testimony regarding defendant’s hand movements, which were open to view, and her observations about the semen deposited beneath the table. Although neither she nor her coworker actually saw defendant’s genitals, [the cashier] testified that she saw the bare skin of his fist as it was wrapped around what appeared to be his penis while he moved it up and down in his crotch area. It is reasonable to conclude that [the] defendant exposed his penis by taking it out of his shorts and holding it in his fist as he masturbated in the restaurant. Had the penis not been exposed, arguably the semen would have been deposited on defendant’s clothing rather than on the floor when he ejaculated.” (Ibid.) In essence, the Carbajal court held that the exposure element may be proven by either direct evidence or circumstantial evidence. We agree with the court’s conclusion in Carbajal and in light of the court’s thorough discussion of the common law and other authorities, reject defendant’s contention that Carbajal was wrongly decided. Moreover, in our view, the language that defendant complains of from CALCRIM No. 1160 merely instructs the jury that the exposure element may be proven by circumstantial evidence.
Defendant’s reliance on People v. Rehmeyer (1993) 19 Cal.App.4th 1758 is misplaced. The defendant in Rehmeyer, who was not wearing any clothes, entered two neighboring homes on the same day. The first female victim awoke at 3:40 a.m. and found the defendant standing in her bedroom doorway. A dresser blocked her view of the lower half of his body. Consequently, she did not see his genitals. After she yelled at him, the defendant left. (Id. at p. 1763.) At 4:17 a.m. that same day, the second female victim awoke and found the defendant, who was nude with an erect penis, shaking the head rails on her bed. When she asked him who he was, he left. (Ibid.) The defendant was convicted of residential burglary with regard to the first incident and residential burglary and indecent exposure with regard to the second incident. (Id. at pp. 1765-1766.) On appeal, the defendant challenged his conviction for residential burglary in the first incident, arguing that there was insufficient evidence that he had the felonious intent to commit indecent exposure to support the burglary conviction since the first victim did not see his genitals. The court held that the defendant’s felonious intent could be inferred from all the facts and circumstances and that the jury could reasonably infer that the defendant intended to expose himself when he entered the first residence based on the fact “that he actually did so one house away within a half-hour.” (Id. at p. 1765.) The court did not hold, as defendant suggests, that there was no indecent exposure because the defendant’s “genitals were blocked from view and therefore not exposed.”
For these reasons, we conclude that the court did not err when it instructed the jury that “It is not required that another person actually see the exposed genitals.”
Even if we were to conclude that the instruction was erroneous in some respect, there was no prejudice. In this case, Twin A testified twice that she saw defendant’s penis. This alone was sufficient direct evidence that defendant exposed his bare genitals to the twins. Moreover, both women testified that defendant was naked; that he was not wearing any clothing. Although Twin B testified that she did not see his penis, she told the jury that his penis “was out” and that he was making a “back and forth” movement with his “body, and with the hand.” She told the dispatcher that he was masturbating. This was more than sufficient circumstantial evidence that defendant had exposed his bare genitals to view. Furthermore, we are not persuaded by defendant’s argument that the jurors’ request for a read back of Twin A’s testimony indicated that the jury was not certain of her story. The jury only deliberated for one hour and 50 minutes. The jurors may have requested a read back of her testimony because defense counsel misstated Twin A’s testimony in closing argument, telling the jury that she had testified that she did not see defendant’s penis. For all these reasons we conclude that even if the court erred in instructing the jury that “[i]t is not required that another person actually see the exposed genitals, ” the error was harmless under any standard.
II. Ineffective Assistance Of Counsel
Defendant contends that even if “the instruction on indecent exposure was technically correct, it was at best extremely confusing in the context of this case” and that defense counsel should have offered a specific clarifying instruction or objected to the last sentence of the instruction. He argues that her failure to do so amounted to ineffective assistance of counsel.
“To prevail on a claim of ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel’s performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Prejudice exists where there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.) Since we conclude that that there was no error in the instruction on indecent exposure and that even if there was error, there was no prejudice, we reject defendant’s ineffective assistance of counsel claim.
A. Charges, Convictions and Sentences At Issue.
In count 1, the prosecution charged defendant with indecent exposure in violation of section 314 with a prior conviction for indecent exposure and the jury convicted him of that offense. The court designated this count the principal term and sentenced defendant to the middle term of two years plus three years for the prison prior enhancements, for a total of five years in prison. The court also imposed fines and fees that are not challenged on appeal.
In count 2, the prosecution charged defendant with soliciting both Twin A and Twin B to engage in lewd conduct in public in violation of section 647, subdivision (a). Section 647, which defines the crime of disorderly conduct, sets forth various offenses that constitute disorderly conduct. It provides in relevant part: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: (a) Who solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.” (§ 647, subd. (a).) Thus, subdivision (a) of section 647 proscribes two types of conduct in a public place: (1) soliciting another to engage in lewd conduct and (2) engaging in lewd conduct. Although the prosecution charged defendant with soliciting the twins to engage in lewd conduct, the court instructed the jury on the other prong of section 647, subdivision (a), engaging in lewd conduct in public. Rather than give the instruction on soliciting another to engage in lewd conduct (CALCRIM No. 1162), the court instructed the jury with CALCRIM No. 1161 regarding lewd conduct in public. And in its verdict form for count 2, the jury found defendant guilty of “Lewd Act in Public.” The court sentenced defendant to 183 days in jail on count 2 with credit for 183 days already served. The court also ordered a $20 court security fee, a $30 court facilities fee, and a $100 restitution fine.
B. Parties’ Contentions
Defendant contends the trial court should have stayed his sentence on count 2, pursuant to section 654 since “there was only one objective in committing [the] two crimes.” He argues that he “exposed himself to the two complaining witnesses, simultaneously asking them if they ‘wanted to fuck.’ Both counts concerned the same conduct. The solicitation... had precisely the same objective as the indecent exposure.”
The Attorney General concedes the issue in part. He responds that defendant’s challenge to his jail sentence on count 2 is moot, since the sentence has been deemed served. He argues that defendant’s challenges to the imposition of the $20 court security fee and the $30 facilities fee on count 2 fails because such fees are not subject to a stay under section 654. However, he concedes that the $100 restitution fine must be stayed pursuant to section 654.
C. General Principles Governing Section 654
Section 654, subdivision (a) provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) “If... a defendant suffers two convictions, punishment for one of which is precluded by section 654, that section requires the sentence for one conviction to be imposed, and the other imposed and then stayed.” (Id. at pp. 591-592.) “Section 654... prohibits multiple punishment if the defendant commits more than one act in violation of different statutes when the acts comprise an indivisible course of conduct having a single intent and objective. ‘If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] In such a case, the defendant’s single intent and objective are treated as a single act. For example, a defendant who enters a building with the intent to commit theft and then takes something of value cannot be sentenced for both burglary and theft. Although the defendant committed two criminal acts (entering the building and taking the property), the two acts ‘were parts of a continuous course of conduct and were motivated by one objective, theft; the burglary, although complete before the theft was committed, was incident to and a means of perpetrating the theft.’ ” (In re Jose P. (2003) 106 Cal.App.4th 458, 469.)
“On the other hand, section 654 does not apply when the evidence discloses that a defendant entertained multiple criminal objectives independent of each other. In that case, ‘the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant’s criminal intent and objective were single or multiple.’ ” (In re Jose P., supra, 106 Cal.App.4th at p. 469.) It is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support them. (Ibid.; People v. Osband (1996) 13 Cal.4th 622, 730.)
“ ‘A defendant’s criminal objective is ‘determined from all the circumstances....’ ” (In re Jose P., supra, 106 Cal.App.4th at p. 469.) “[M]ultiple crimes are not one transaction where the defendant had a chance to reflect between offenses and each offense created a new risk of harm.” (People v. Felix (2001) 92 Cal.App.4th 905, 915.)
D. Analysis: Soliciting Lewd Conduct in Public
Defendant was naked. He stepped into the street, touched his genitals, and said, “Twins, twins, do you want to fuck? Do you want to fuck?” Defendant contends this was an indivisible course of conduct, having a single intent, since these acts occurred close in time, if not simultaneously.
In our view, defendant’s conduct consisted of two separate acts: (1) the exhibition of defendant’s naked body and bare genitals, and (2) the solicitation of a sex act. A defendant may commit indecent exposure without uttering a word. (See e.g., People v. Merriam, supra, 66 Cal.2d at pp. 392-393, People v. Rehmeyer, supra, 19 Cal.App.4th at pp. 1763-1764; & Carbajal, supra, 114 Cal.App.4th at p. 981.) In addition, a defendant may be found guilty of soliciting lewd conduct without exposing his or her genitals. Arguably, defendant’s criminal intent and objective were different for the two offenses. As we observed previously, the common law offense of indecent exposure targeted exhibitionism or genital exposure. (Massicot, supra, 97 Cal.App.4th at pp. 928, 930.) The purpose of the exposure may be to shock or offend the victim or to sexually gratify or arouse the offender. (In re Lynch (1972) 8 Cal.3d 410, 429-430, superceded by statute on another ground as stated in People v. West (1999) 70 Cal.App.4th 248; In re Smith (1972) 7 Cal.3d 362, 364.) While the solicitation of a lewd act may be done to shock or offend that victim, it appears to have another objective: persuading the victim to engage in lewd conduct. If the jury had convicted defendant of soliciting a lewd act in public, as charged, we would conclude that section 654 does not apply since indecent exposure and soliciting lewd conduct in public are two separate offenses with separate intents and objectives.
Section 647, subdivision (a) prohibits soliciting lewd conduct that is “to be performed in any public place or in any place open to the public or exposed to public view.” (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256-257 (Pryor).) Nothing in the record indicates where defendant intended the lewd act to be performed. Hence, our comments are not meant to suggest that the prosecution had proven solicitation of lewd conduct in violation of section 647, subdivision (a) in this case. This problem with the evidence may explain why the prosecution argued lewd conduct in public instead of solicitation of lewd conduct.
Analysis: Lewd Conduct in Public
However, as we have noted, although the prosecution charged soliciting another to engage in a lewd act, the court instructed the jury on lewd conduct in public, the prosecutor argued lewd conduct in public, and the jury found defendant guilty of committing a lewd act in public, not soliciting lewd conduct. Since defendant had argued on appeal that the punishment on his conviction for “solicitation of lewd conduct” should be stayed pursuant to section 654, we reminded the parties of this procedural history and asked for supplemental briefing on the following questions: (1) “How does this history impact [defendant’s] contention that the court should have stayed the punishment on Count 2?” (2) “Is lewd conduct in public a lesser-included offense of indecent exposure?” and (3) if so, “is a stay pursuant to section 654 appropriate or should this court dismiss Count 2?”
The court instructed the jury that defendant could commit this offense by “willfully engag[ing] in the touching of his own genitals” in a public place, with the intent to sexually arouse or gratify himself or another or the intent to annoy or offend another person in the presence of someone who might have been offended by his conduct.
We have received the parties’ supplemental briefs. The parties agree that lewd conduct in public (§ 647, subd. (a)) is not a lesser-included offense of indecent exposure. Defendant contends that his conviction for lewd conduct in public, rather than soliciting lewd conduct, makes his argument that the punishment on count 2 should have been stayed under section 654 even stronger. The Attorney General renews his contention that the section 564 issue is moot because defendant has served his sentence on count 2.
A defendant “cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act.” (People v. Sanchez (2001) 24 Cal.4th 983, 987 (Sanchez).) In such a case, the conviction of the lesser offense must be reversed and that count dismissed. (People v. Gamble (1994) 22 Cal.App.4th 446, 452.) For the purpose of this rule, “ ‘ “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” ’ ” (Sanchez, at p. 988.) We turn next to the question whether lewd conduct in public is a lesser included offense of indecent exposure.
Prior to 1979, two Court of Appeal cases, Swearington, supra, 71 Cal.App.3d at pages 944-945 and People v. Curry (1977) 76 Cal.App.3d 181, 186-187, held that lewd conduct in public is a lesser included offense of indecent exposure.
In 1979, the California Supreme Court held in Pryor that the phrase “lewd or dissolute conduct” in section 647, subdivision (a) was unconstitutionally vague. (Pryor, supra, 25 Cal.3d at pp. 244, 253.) The court stated that the language of section 647, subdivision (a) was a “descendant of archaic vagrancy statutes which were designedly drafted to grant police and prosecutors a vague and standardless discretion” and that Court of Appeal cases construing the statute had “produced neither a clear nor a consistent definition of... ‘lewd or dissolute conduct.’ ” (Id. at pp. 248, 250.) The court construed the statute “ ‘to give specific content to terms that might otherwise be unconstitutionally vague’ ” (id. at p. 253) and held that “[t]he terms ‘lewd’ and ‘dissolute’ in this section are synonymous, and refer to conduct which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense, if the actor knows or should know of the presence of persons who may be offended by his conduct. The statute prohibits such conduct only if it occurs in any public place or in any place open to the public or exposed to public view; it further prohibits the solicitation of such conduct to be performed in any public place or in any place open to the public or exposed to public view.” (Id. at pp. 256-257.)
Applying this definition of lewd conduct in public, subsequent cases have held that the offense is not a lesser included of indecent exposure. In People v. Tolliver (1980) 108 Cal.App.3d 171 the court concluded that lewd conduct in public was not a lesser included offense of indecent exposure because indecent exposure can occur “in any place where there are present other persons to be offended or annoyed thereby” (§ 314, subd. (1)), while lewd conduct in public must occur in “in any pubic place or in any place open to the public or exposed to public view” (§ 647, subd. (a)). (Tolliver, at pp. 173-174.) In People v. Meeker (1989) 208 Cal.App.3d 358, the court held that lewd conduct in public was not a lesser included offense of indecent exposure because lewd conduct in public requires touching of the genitals, buttocks, or female breast, and it is possible for a person to expose and direct attention to his genitals in violation of section 314 without touching them or soliciting others to touch them. Tolliver and Meeker were decided after Pryor clarified and narrowed the offense of lewd conduct in public and both point out important differences between the offenses. We therefore follow casesand conclude that lewd conduct in public is not a necessarily lesser included offense of indecent exposure.
We turn to the question whether defendant’s conviction for lewd conduct in public should be stayed pursuant to section 654. While arguing this case to the jury, the prosecution argued that defendant committed lewd conduct in public by touching his genitals in a public place (a street in Seaside) with knowledge that the twins were present with the intent to sexually arouse himself or to offend or annoy the twins. This is the exact same conduct that was the basis of the indecent exposure charge. We therefore conclude that section 654 applies and that execution of the punishment imposed on count 2 should have been stayed.
The Attorney General cites no authority in support of his contention that this issue is moot, because the court gave defendant credit for time served on count 2 and we are not persuaded that that is the correct rule. With regard to his other contentions, the Attorney General correctly concedes that the restitution fine must be stayed pursuant to section 654. (People v. Le (2006) 136 Cal.App.4th 925, 932-934.) We also agree with his assertion that the $20 court security fee (§ 1465.8) and the $30 court facilities fee (Gov. Code, § 70373) are not subject to section 654, since both are non-punitive in nature and section 654 only stays execution of punishment. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1327 [court security fee is mandated for every conviction, “even if the sentence on a conviction was stayed”]; People v. Fleury (2010) 182 Cal.App.4th 1486, 1490-1494 [court facilities assessment, like court security fee, is not punitive in nature].)
For these reasons, we conclude that the execution of the punishment imposed on count 2 (the jail term and the restitution fine) must be stayed pursuant to section 654. We will modify the judgment accordingly.
Disposition
The judgment is modified by staying the sentence imposed on count 2, including the jail term and the restitution fine. As so modified, the judgment is affirmed.
The clerk of the court is directed: (1) to prepare an amended abstract of judgment, reflecting imposition of the sentence on count 2 (including the jail term, restitution fine, court security fee, and court facilities assessment) and the stay of the jail term and restitution fine pursuant to section 654; and (2) to forward a copy of the amended abstract to the Department of Corrections.
WE CONCUR: Premo, Acting P.J., Elia, J.