Opinion
NOT TO BE PUBLISHED
Super. Ct. for the City & County of San Francisco No. 293422
Dondero, J.
Defendant was convicted following a jury trial of felony indecent exposure (Pen. Code, § 314, subd. (1)), and the trial court found true the allegation of a prior strike conviction (Pen. Code, § 1170.12, subd. (c)). The court imposed a total state prison term of six years.
All further statutory references are to the Penal Code.
In this appeal defendant argues that the trial court erred by refusing to instruct on the lesser included offense of disorderly conduct, and the evidence fails to support a finding of the essential intent element of the indecent exposure offense. We conclude that a lesser included offense instruction was not required, and the evidence supports the conviction. We therefore affirm the judgment.
The record in the present appeal does not include exhibits admitted in the trial court that relate to defendant’s prior convictions. The exhibits have apparently been lost by the trial court. We have examined the record before us and concluded that in light of the issues presented, which do not include any challenge to the prior convictions, the appeal may be resolved in the absence of the lost exhibits with no resulting prejudice to the defendant. (People v. Osband (1996) 13 Cal.4th 622, 661; People v. Coley (1997) 52 Cal.App.4th 964, 970.)
STATEMENT OF FACTS
The Charged Offense.
On September 7, 2007, between midnight and 1:00 a.m., Samara Isaacs was alone in her studio apartment on the second floor at 31 Joice Street in San Francisco, working on her computer, when she heard the lobby door downstairs pop “like it was opened forcefully.” She then heard “rustling downstairs” for about 20 minutes before “the noise came upstairs” to the second floor hallway. Isaacs looked through the peephole of her front door and observed defendant “stumbling around” at the “far end of the hall” near the stairs. Defendant then removed his pants and “started masturbating” as he stumbled towards Isaacs’s apartment door. When defendant reached the door and touched the doorknob, Isaacs thought he “was going to force entry” into her apartment so she “called 911” to report that a “naked Black male” was “playing with himself sexually” in front of her second floor apartment door.
About 10 minutes later police officers arrived at the apartment building as defendant walked away from Isaacs’s apartment door back toward the end of the second floor hallway and began to “fumble around” with his clothes. When the officers reached the second floor of the building they observed defendant in the hallway, approximately 25 feet from Isaacs’s apartment number three, “fixing his pants, trying to tuck in his shirt.” Defendant complied with the officer’s order to display his hands. He was then handcuffed and taken out of the building. On the floor of the hallway near defendant the officers found socks, a bar of soap, two jackets, and a bag of “his belongings.”
The Prior Uncharged Acts.
The prosecution also presented evidence of a series of similar uncharged acts committed by defendant over the course of many years in San Francisco, the first of which occurred on November 30, 1990, at an apartment building at 511 Leavenworth Street. Francine Rahn testified that she was acquainted with defendant, who was known to her as “T.K.,” and was considered “an unwelcome presence in that building.” As Rahn left her apartment on the fourth floor that morning and walked down the stairs, defendant yelled “over here” to her from behind an apartment door, then “came out of the apartment masturbating.” Defendant was not wearing any clothes, and had a “big grin” as he looked at Rahn. He “continued to masturbate” as he walked directly past Rahn to a banister.
The next incident occurred on the morning of July 21, 1993, at an apartment building at 945 Green Street. Gil Ramos, the apartment building supervisor, testified that between 9:00 and 10:00 that morning he noticed defendant lying on a stairway in the garden at the back of the building, naked, “playing with himself.” Ramos asked defendant “to leave,” but defendant “just looked” at him, so Ramos called the police. Within five minutes police officers arrived; they observed defendant in the garden with a belt around his neck and his underpants down at his ankles “masturbating” with a container of baby oil in his hands. Defendant continued to masturbate as the officers approached him. When the officers ordered defendant to put on his pants, he “just stopped.” After defendant was handcuffed he stated to the officers, “You do it in your home. Should I do it in an alley?”
On the afternoon of March 17, 1994, San Francisco police officers responded to a report of “somebody running around” the large commercial building” at 123 Townsend “with no clothes on.” The officers began “looking around on the floors” of the building, and found defendant in the office of a travel agency, “completely naked.” Defendant said he had “misplaced his clothes or couldn’t find them or something.” He was taken into custody and transported to the police station, but was not “cited” for an offense. He had had “several priors for trespassing,” did not have identification in his possession, and was already “on parole or violation of parole.”
Defendant was again the subject of a report to the police on the night of October 3, 2000, at an apartment building at 747 Geary Street. Rebecca testified that as she was in her top floor apartment “reading in bed” she looked out her window to the “sky roof” of the building and observed a man “naked from the waist up” – her view of the lower half of the man’s body was obstructed – “moving around, kind of dancing” with his arms in the air. The man did not look like a tenant in the building, so Rebecca called the police. Before the police arrived, Rebecca heard a noise at her front door. When she looked out her peep hole, she “saw a naked man” in front of her door. She then “backed away from the door” and responded to a request from the police to “buzz them in.” Police officers discovered defendant on the stair well of the apartment building between the fifth floor and the roof, “naked and oily.” When the officers asked defendant, “What’s going on?” he responded that “he was jacking off and the woman wanted it.” He was immediately arrested. In a subsequent interview defendant admitted that he was “masturbating” in the public stairway just below the roof of the building, and did that “pretty often.” Defendant stated that he did not “think it’s wrong.” He denied that he knocked on anyone’s door or jiggled any doorknobs.
As the parties did at trial, we will refer to Rebecca by her first name only.
The recording of the interview was played for the jury.
Finally, the prosecution offered testimony that on the morning of January 10, 2007, San Francisco police officers were dispatched to an apartment building at 1034 Stockton following a report of “a Black male inside the building” walking around “on the second floor naked.” The officers discovered defendant on the second floor hallway of building, wearing a cap and shirt, but no pants or shoes. He was holding a pornographic magazine in his left hand. After handcuffs were placed on defendant, his pants and a duffel bag were found at the other end of the hallway. Pieces of plastic “called celluloids” – used to force locks open – were removed from the left rear pocket of defendant’s pants.
DISCUSSION
I. The Trial Court’s Refusal to Give an Instruction on the Offense of Disorderly Conduct.
Defendant claims that the trial court committed error by refusing to give an instruction requested by the defense on lewd or disorderly conduct (§ 647, subd. (a)), as a lesser included offense. Defendant argues that lewd conduct is a necessarily included offense of the charged crime of indecent exposure (§ 314, subd. (1)), and the evidence presented at trial supported the requested lesser offense instruction. He adds that the failure to give the lesser included offense instruction was prejudicial, as the evidence of “the element of intent” required to prove the greater charged offense was weak.
Section 647 provides: “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.” Section 314, subdivision 1, makes it a crime for a person to “willfully and lewdly” “[e]xpose his [or her] 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....”
“A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right.” (People v. Huggins (2006) 38 Cal.4th 175, 215; see also People v. Cash (2002) 28 Cal.4th 703, 736.) “The sua sponte duty to instruct, and a fortiori, the responsibility to provide instructions on request, in connection with a lesser offense... exists when there is substantial evidence to support the defendant’s culpability of the necessarily included crime.” (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016; see also People v. Avena (1996) 13 Cal.4th 394, 424.) A trial court errs if it fails to instruct on lesser included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)
“[T]his does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather,... ‘ “such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]” ’ that the lesser offense, but not the greater, was committed.” ’ [Citation.] The classic formulation of this rule is expressed in People v. Webster[ (1991)] 54 Cal.3d 411, 443: ‘When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.’ ” (People v. Huggins, supra, 38 Cal.4th 175, 215; see also People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Berryman (1993) 6 Cal.4th 1048, 1081; People v. Ceja (1994) 26 Cal.App.4th 78, 85.) The duty to instruct on lesser included offenses also “exists even though the evidence supporting the lesser offense is inconsistent with the accused’s defense.” (People v. Sinclair, supra, 64 Cal.App.4th 1012, 1017.) “The trial court must instruct on lesser included offenses when there is substantial evidence to support the instruction, regardless of the theories of the case proffered by the parties.” (People v. Barton (1995) 12 Cal.4th 186, 203.)
“In making the determination whether to instruct on a lesser included offense, the ‘trial court should not... measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, a task exclusively relegated to the jury.’ [Citation.] ‘ “ ‘The fact that the evidence may not be of a character to inspire belief does not authorize the refusal of an instruction based thereon.’ ” ’ [Citations.] As an obvious corollary, if the evidence is minimal and insubstantial the court need not instruct on its effects.” (People v. Springfield (1993) 13 Cal.App.4th 1674, 1680.) “Speculation is insufficient to require the giving of an instruction on a lesser included offense.” (People v. Mendoza (2000) 24 Cal.4th 130, 174; see also People v. Koontz (2002) 27 Cal.4th 1041, 1085; People v. Pham (1993) 15 Cal.App.4th 61, 67.) “[T]he court is not obliged to instruct on theories that have no evidentiary support.” (People v. Joiner (2000) 84 Cal.App.4th 946, 972; see also People v. Breverman, supra, 19 Cal.4th 142, 162.) “On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.” (People v. Cole (2004) 33 Cal.4th 1158, 1215; see also People v. Mendoza, supra, at p. 174; People v. Sinclair, supra, 64 Cal.App.4th 1012, 1017.)
The threshold inquiry necessitated by defendant’s claim of error in failure to give a disorderly conduct instruction is whether, under the facts presented in the case before us, disorderly conduct is a necessarily included offense of the charged crime of indecent exposure. “To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test) must be met. The elements test is satisfied when ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (People v. Lopez (1998) 19 Cal.4th 282, 288–289; see also People v. Sanchez (2001) 24 Cal.4th 983, 988.) “The evidence adduced at trial is not to be considered in determining whether one offense necessarily is included within another.” (People v. Cheaves (2003) 113 Cal.App.4th 445, 454; see also People v. Wright (1996) 52 Cal.App.4th 203, 208.) “In making this determination, one looks to the elements of the offenses—not the evidence regarding the commission of the offenses.” (People v. Reed (2000) 78 Cal.App.4th 274, 281, italics omitted.)
Defendant directs our attention to two opinions which held that lewd conduct is a necessarily included offense of indecent exposure: People v. Curry (1977) 76 Cal.App.3d 181 (Curry), and People v. Swearington (1977) 71 Cal.App.3d 935 (Swearington). In Swearington, supra, at p. 944, the court declared: “A comparison of the two offenses — ‘disorderly conduct’ and ‘indecent exposure’ — makes it clear that a person who has committed a violation of Penal Code section 314, subdivision 1, a felony, has necessarily committed also a violation of Penal Code section 647, subdivision (a), a misdemeanor, since each of the two offenses requires that the perpetrator has engaged in ‘lewd’ conduct in a public place. In Silva v. Municipal Court (1974) 40 Cal.App.3d 733, 739 [115 Cal.Rptr. 479], the court defined in part the lewd conduct proscribed by Penal Code section 674, subdivision (a), in the following language: ‘The lewd or dissolute or obscene conduct alluded to in Penal Code section 647, subdivision (a), concerns sexually related or motivated conduct, whether normal or perverted.’ ” The court explained: “The same sexual motivation for public exposure of a person’s privates is an essential requirement of the offense proscribed by Penal Code section 314, subdivision 1. In accord with the holding in In re Smith[(1972) 7 Cal.3d 362], the court in the case at bench gave CALJIC instruction No. 16.220 (misdemeanor) (1973 revision) as an integral part of the definition of the felony of ‘indecent exposure’: ‘Every person who intentionally exposes his private parts, in any public place, or in any place where there are present other persons who may be offended or annoyed thereby, if such exposure is made with the specific intent to direct public attention to his genitals for the purpose of his sexual arousal or gratification or to affront others, is guilty of a crime.’ In addition, the court in the case at bench instructed the jury that ‘[i]n the crime of indecent exposure, the necessary specific intent is to direct public attention to his genitals for the purpose of his sexual arousal or gratification or to affront others.’ It is too clear for argument, therefore, that if a defendant possesses such necessary specific intent to constitute the felony offense defined in Penal Code section 314, subdivision 1, he necessarily has committed the misdemeanor offense of a violation of Penal Code section 647, subdivision (a).” (Id. at pp. 944–945.) The court thus concluded: “It was prejudicial and reversible error, therefore, for the trial judge not to instruct the jury, sua sponte, with respect to the misdemeanor offense set forth in Penal Code section 647, subdivision (a), as a lesser and necessarily included offense of the felony offense of a violation of Penal Code section 314, subdivision 1, as charged in counts I and II of the information.” (Id. at p. 945.)
As the Attorney General points out, however, following the opinions in Curry and Swearington the California Supreme Court decided Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 (Pryor), in which a comprehensive evaluation of sections 647, subdivision (a) and 314 was undertaken in the course of resolving a constitutional vagueness challenge to section 647, subdivision (a). The court in Pryor articulated a crucial distinction between sections 314 and 647, subdivision (a). While both statutes serve the primary purpose of protecting onlookers who might be offended by the proscribed conduct, section 314, unlike section 647, subdivision (a), is not “directed at sexual conduct, as distinguished from indecent exposure, when such conduct is not intended to arouse the prurient interest of an audience.” (Pryor, supra, at pp. 255–256; see also People v. Conway (1979) 103 Cal.App.3d Supp. 7, 10–11.) To avert any vagueness defects in the statute, the court arrived “at the following construction of section 647, subdivision (a): The 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. [¶] Under the construction we have established in this opinion, section 647, subdivision (a), prohibits only the solicitation or commission of a sexual touching, done with specific intent when persons may be offended by the act.” (Pryor, supra, at pp. 256–257, italics added, fn. omitted; see also Wooten v. Superior Court (2001) 93 Cal.App.4th 422, 428.)
Thereafter, the issue of whether a violation of section 647, subdivision (a), is a necessarily included offense of indecent exposure was revisited in People v. Meeker (1989) 208 Cal.App.3d 358 (Meeker). The court concluded that “lewd conduct is not a necessarily included offense of indecent exposure; consequently, there was no sua sponte duty to instruct on lewd conduct.” (Id. at p. 361.) In light of the decision in Pryor which provided a description of the elements of lewd conduct, the court in Meeker explained: “Section 314 makes it criminal for a person to ‘[e]xpose[] 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....’ [Citation.] A person violates section 314, subdivision 1, when he ‘intend[s] by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification or affront.’ [Citation.] Section 647, on the other hand makes it criminal for a person to ‘solicit[] anyone to engage in or [to] engage [] in lewd or dissolute conduct in any public place....’ [Citation.] The Supreme Court has construed ‘lewd or dissolute conduct’ to mean ‘conduct which involves the touching of the genitals, buttocks, or female breast for the purpose of sexual arousal, gratification, annoyance or offense....’ [Citation.] Since it is possible for a person to expose and direct attention to his genitals for the purpose of sexual arousal, gratification or affront [citation] without touching them or soliciting others to touch them, it is possible to violate section 314, subdivision 1 (indecent exposure) without violating section 647, subdivision (a) (lewd conduct), which requires touching. Consequently, lewd conduct is not a lesser included offense of indecent exposure.” (Id. at p. 362.) The court added: “The two cases appellant cites to the contrary (People v. Curry (1977) 76 Cal.App.3d 181, 187 [142 Cal.Rptr. 649] and People v. Swearington (1977) 71 Cal.App.3d 935, 944 [140 Cal.Rptr. 5]) are not persuasive authority because they were decided before the Supreme Court defined the elements of lewd conduct in Pryor, supra. This definition makes it clear that lewd conduct is not a necessarily included offense of indecent exposure.” (Ibid.)
While defendant suggests that in Pryor the California Supreme Court “was aware of the holding in Swearington and had no intention of disturbing it,” we agree with the reasoning set forth in Meeker. Following the pronouncement of the court in Pryor, section 647, subdivision (a), prohibits only the solicitation or commission of a sexual touching, done with specific intent when persons may be offended by the act, whereas section 314 may be violated if the defendant willfully and lewdly exposed his or her genitals where there are present other persons to be offended or annoyed thereby, without the further requirement of a touching. (See In re Smith, supra, 7 Cal.3d 362, 366; People v. Carbajal (2003) 114 Cal.App.4th 978, 986; People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1766.) Upon an examination of the statutory elements of the two crimes, a defendant may thus violate section 314 without also necessarily committing a violation of section 647, subdivision (a). (Meeker, supra, 208 Cal.App.3d 358, 362.) Nor is a violation of section 314 a necessarily included offense under the accusatory pleading test in the present case. Defendant was charged in the accusatory pleading in the statutory language of section 314, which did not include any allegations of a sexual touching or otherwise describe the offense in such a way that if committed as specified the lesser offense was also necessarily committed. In determining whether section 647, subdivision (a), is a necessarily included offense we do not consider the evidence adduced at trial. (People v. Wright, supra, 52 Cal.App.4th 203, 208.) Therefore, the trial court did not err by declining to instruct the jury on the offense of lewd conduct in violation of section 647, subdivision (a). (Meeker, supra, 361–362.)
II. The Evidence to Support the Conviction.
We turn to defendant’s contention that the evidence does not support the conviction of indecent exposure. Specifically, he challenges the proof of the intent element of the offense. Defendant asserts that the prosecution did not present “any reasonable, credible, evidence of solid value tending to show that” while committing his act of masturbation he “harbored the requisite ‘specific intent’ to ‘direct public attention to his genitals for the purpose of his sexual arousal or gratification or to affront others.’ ”
Defendant concedes that “there was sufficient evidence for the jury to conclude that he exposed his genitals, that he was aware that his genitals were exposed, and that his own sexual gratification was the purpose of his actions.”
This court has a “limited role” in “assessing the sufficiency of the evidence supporting a conviction.” (People v. Lewis (2001) 25 Cal.4th 610, 643.) “Defendant’s claim of insufficient evidence requires us to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (People v. Frye (1998) 18 Cal.4th 894, 953.) “ ‘We examine the record to determine “whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.]...’ [Citations.]” (People v. Moon (2005) 37 Cal.4th 1, 22.) “ ‘In making this determination, the appellate court “ ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’... ‘Our task... is twofold. First, we must resolve the issue in the light of the whole record.... Second, we must judge whether the evidence... is substantial....’ ” ’ [Citation.]” (People v. Proby (1998) 60 Cal.App.4th 922, 928, italics omitted.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact. We may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; see also People v. Wader (1993) 5 Cal.4th 610, 640.)
“ ‘The same standard also applies in cases in which the prosecution relies primarily on circumstantial evidence. [Citation.]’ [Citation.]” (People v. Mejia (2007) 155 Cal.App.4th 86, 93.) “Where, as here, the jury’s findings rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, ‘but our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial. [Citation.]” (People v. Earp (1999) 20 Cal.4th 826, 887–888.) Further, if the record contains substantial evidence from which a reasonable trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt “the possibility that the trier of fact might reasonably have reached a different conclusion does not warrant reversal.” (People v. Taylor (2004) 119 Cal.App.4th 628, 639.) “Additionally, ‘[a]n appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ [Citation.] Moreover, an appellate court ‘resolve[s] neither credibility issues nor evidentiary conflicts; we look for substantial evidence.’ [Citation.]” (People v. Panah (2005) 35 Cal.4th 395, 488.) “However, ‘[e]vidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this is not a sufficient basis for an inference of fact. [Citations.]’ [Citation.] ‘Circumstantial evidence is like a chain which link by link binds the defendant to a tenable finding of guilt. The strength of the links is for the trier of fact, but if there has been a conviction notwithstanding a missing link it is the duty of the reviewing court to reverse the conviction.’ [Citation.]” (People v. Tripp, supra, 151 Cal.App.4th 951, 955–956; see also People v. Wader, supra, 5 Cal.4th 610, 640.)
The elements of indecent exposure “are that (1) the defendant acted ‘willfully’ [citation], meaning essentially that he knew he was exposing his genitals [citation]; (2) he ‘intended by his conduct to direct public attention to his genitals’ [citation]; and (3) he acted ‘for purposes of sexual arousal, gratification, or affront’ [citation].” (People v. Earle (2009) 172 Cal.App.4th 372, 392.) “[S]pecific intent to expose one’s genitals” willfully and lewdly “is an essential element of the indecent exposure offense.” (People v. Massicot (2002) 97 Cal.App.4th 920, 922.) Also, “ ‘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.’ [Citation.]” (People v. Carbajal, supra, 114 Cal.App.4th 978, 982.) “[A] person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (In re Smith, supra, 7 Cal.3d 362, 366; see also In re Dallas W. (2000) 85 Cal.App.4th 937, 939.)
We disagree with defendant’s claim that the evidence merely demonstrates he “was homeless and entered the building in order to stay the night,” not that he acted “for the purpose of exposing himself” to the victim or otherwise “wished to draw the occupant’s attention to him” as required to establish a violation of section 314. We discern in the record adequate circumstantial evidence of defendant’s specific intent to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront. “As our Supreme Court has explained, ‘[e]vidence of a defendant’s state of mind is almost inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to support a conviction. [Citations.]’ [Citation.] In particular, ‘[a] jury may infer a defendant’s specific intent from the circumstances attending the act, the manner in which it is done, and the means used, among other factors.’ [Citation.]” (People v. Park (2003) 112 Cal.App.4th 61, 68; see also People v. Abilez (2007) 41 Cal.4th 472, 508.)
Here, the evidence does not merely prove that defendant entered the building to trespass, sleep, and store his belongings for the night, as he seems to suggest. According to the victim’s testimony, he removed all of his clothes in the hallway, then “started masturbating” as he stumbled towards her lighted apartment. Defendant did not engage in a secluded act of masturbation while inside the building. His conduct of moving around in the hallway while he exposed himself and continued to masturbate leads to the inference that he wanted someone to see him. When defendant reached the victim’s door, he touched the doorknob, which confirms that he wanted to draw her attention to his acts of exposure.
Defendant has also engaged in repeated acts of exposure over many years that reveal a pattern of conduct undertaken in quite public view in the presence of onlookers. During the incident on November 30, 1990, defendant called out to the victim to gain her attention while he masturbated in the public stairwell of an apartment building. When she looked at defendant, he grinned and continued to masturbate. He was detected naked and “playing with himself” in an open garden of an apartment building on July 21, 1993, and again persisted in the act of masturbation even after he was seen and asked to leave. Defendant’s continuation of his conduct despite discovery by others is indicative of his ongoing intent to direct public attention to his acts of indecent exposure. Finally, on the night of October 3, 2000, defendant was found “naked and oily” by police officers on the exposed roof of an apartment building after he had approached the front door of an apartment unit. He thereafter admitted to the police officers that he was “masturbating” in a public place and the “woman wanted it.” The series of uncharged acts demonstrates defendant’s lewd intent and rebuts his claim of a nonlewd act. (See People v. Branch (2001) 91 Cal.App.4th 274, 283; People v. Curry, supra, 76 Cal.App.3d 181, 184–185.)
The evidence, viewed in its totality, persuasively proves defendant’s intent to expose himself, and to direct public attention to his genitals for his own sexual arousal or gratification when he removed his clothes in a public area of the apartment hallway, began masturbating, and made his way to Isaacs’s apartment door on September 7, 2007. (People v. Rehmeyer, supra, 19 Cal.App.4th 1758, 1766–1767.) Substantial circumstantial evidence supports the conviction.
Accordingly, the judgment is affirmed.
We concur: Margulies, Acting P. J., Banke, J.