Opinion
C081287
09-29-2017
THE PEOPLE, Plaintiff and Respondent, v. BRYAN WHITE, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15F04912)
Defendant Bryan White appeals his conviction for felony indecent exposure. He contends there is not substantial evidence to support his conviction and the trial court prejudicially erred in failing to sua sponte instruct on the lesser included offense of misdemeanor indecent exposure. We affirm the judgment.
I. BACKGROUND
On the morning of August 11, 2015, as Howard was leaving the house, he saw a man in the alley behind his home. He called his wife Peggy, who was still inside the home, and warned her. A few minutes later, Peggy looked around and defendant was standing in her kitchen. Both of his hands were down the front of his pants. He was not moving or looking around, he was just standing there with a vacant expression on his face. She repeatedly yelled at him to get out of the house. He did not speak. He stayed there for about three or four minutes, and she was starting to get nervous that he would not leave. He eventually did leave and stood on the back porch. Peggy called 911 and reported a stranger was on her back porch, had his pants down, and was fondling himself. He was staring straight ahead, not focused on anything. Peggy told the responding officer that when defendant was on the porch, he pulled his shorts down slightly, pulled out his penis, and masturbated. At trial, Peggy testified that when defendant was on the porch, he was facing her with his hands down his pants, fondling himself. She acknowledged she would trust what she said at the time of the incident more than her memory at trial, and that she was truthful with both the 911 operator and the responding officer.
A couple of hours after defendant was on Peggy's back porch, one of her neighbors saw defendant, naked, on yet another neighbor's deck. She texted that neighbor, let her know, and said she was calling 911. The neighbor saw defendant go into the garage and get a bicycle. The neighbor testified that at one point, defendant stopped in front of glass French doors and masturbated while looking at his reflection. The residents of this house were not home at the time.
A police officer responded to Peggy's 911 call. After taking Peggy's statement, the officer went into the alley and collected the clothing and paperwork that defendant had left there. He prepared a photographic lineup for Peggy. He returned to the area to show her the lineup and received the dispatch of a bicycle theft a few houses away. The officer saw defendant on a porch, naked, but for socks. He arrested defendant. Another officer searched the garage and found clothing inside. It matched the description of the clothing worn by defendant. Peggy was 99 percent certain this was the same man that had been at her house. The officer who responded to Peggy's 911 call transported defendant to the jail. Once there, he left defendant in the squad car to make a phone call. During that time, defendant went on a sexually explicit tirade.
Defendant testified he was homeless. He went into the alley by Peggy's home because he had to defecate. He was looking for a more private part of the alley when he defecated on himself. He cleaned himself up as best he could. He had clothing with him in his bag, and he changed into gray shorts. He went into Peggy's house looking for water to clean himself. He knocked on the door, thought the house was empty and walked inside. When he saw Peggy, he immediately froze, apologized, turned around and walked out the back door onto the porch. He denied ever exposing himself on the back porch. He heard Peggy say she was calling the police. He went to the neighbor's house and into the garage to hide from police. He took his clothes off because he was going to wipe himself down more thoroughly. He denied exposing himself to Peggy, masturbating in front of her, or masturbating on her neighbors' property.
When the police officer arrested defendant, defendant was on his belly. There was no indication defendant had defecated on himself. None of defendant's clothing found in the garage or alley was soiled with feces.
An amended information charged defendant with first degree residential burglary (Pen. Code, § 459—count one), second degree burglary (§ 459—count two), and felony indecent exposure (§ 314, subd. (1)—count three). As to count one, the information alleged defendant was ineligible for probation (§ 462, subd. (a)) and a person other than an accomplice was present in the residence. (§ 667.5, subd. (c)(21).) The information also alleged that defendant had a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12) and had served five prior prison terms (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
A jury found defendant guilty of felony indecent exposure, acquitted him of second degree burglary, and could not reach a verdict on first degree residential burglary. The trial court declared a mistrial on that count.
The trial court sentenced defendant to an aggregate term of 11 years in prison, consisting of the upper term of three years on the indecent exposure, doubled pursuant to the prior strike, plus an additional one year term for each of the five prison priors. The trial court awarded defendant 344 days of presentence custody credits, and imposed various fines and fees.
II. DISCUSSION
A. Conviction for Indecent Exposure
Defendant contends there is insufficient evidence to support his conviction for felony indecent exposure. Specifically, he contends the indecent exposure was disconnected from the entry of the residence.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Section 314, subdivision 1 sets forth the misdemeanor offense of indecent exposure, making 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." The offense becomes a felony when a person violates the section "after having entered, without consent, an inhabited dwelling house." (§ 314.) This phrase has not been defined in the context of indecent exposure. However, the identical language also elevates misdemeanor child molestation to a felony. (§ 647.6, subd. (b); People v. Mendoza (2004) 118 Cal.App.4th 571, 574 (Mendoza).) In Mendoza, the defendant entered the minor's home and asked the minor for directions. The minor gave him directions and told him to leave. The defendant exited, returned to the front door and asked the minor if he wanted oral sex. The minor said no and called the police. (Id. at p. 573.) This conduct constituted felony molestation. (Id. at pp. 575-576)
The same legislative enactment added the dwelling house provision to both the child molestation and indecent exposure laws. (Mendoza, supra, 118 Cal.App.4th at p. 574.) "[T]he Legislature decided to treat residential indecent exposure more seriously than such acts that do not occur inside a victim's residence in recognition of the sanctity of one's residence and the inherent danger presented by residential intruders." (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1768.) However, as with section 647.6, the Legislature did not require that the indecent exposure actually occur inside the inhabited dwelling for the offense to be elevated to a felony. (Mendoza, supra, at p. 575.) The crime is "no less residential because [the indecent exposure occurs] only after [defendant] had stepped out onto the porch." (Ibid.) It is sufficient if the defendant engaged in the conduct after entering the home without consent and there is "a clear nexus between the residential entry and the . . . conduct." (Id. at p. 576.)
This case is virtually identical to Mendoza, and we see no reason to depart from its analysis. Here, defendant entered the home and stood in the kitchen with his hands down the front of his pants for three or four minutes, with a vacant look on his face. After Peggy repeatedly told him to leave, he stepped out onto the back porch, turned around, immediately pulled his penis out and began masturbating, again with a vacant stare. Thus, as in Mendoza, the residential entry and indecent exposure were closely tied, both temporally and as a single course of conduct. Accordingly, we find substantial evidence supports the conviction. B. Failure to Provide Jury Instruction on Lesser Included Offense
Defendant contends the trial court prejudicially erred in failing to give a sua sponte instruction on misdemeanor indecent exposure as a lesser included offense. He contends there was a break between defendant's entry into the home, departure from the home, and the indecent exposure. Accordingly, he claims it is equally possible that if properly instructed, the jury would have convicted him of the lesser offense.
"A trial court must instruct on a lesser included offense if there is substantial evidence from which a reasonable jury could conclude the defendant is guilty of the lesser offense, but not the charged offense. (People v. Breverman (1998) 19 Cal.4th 142, 162.) 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' (Id. at p. 177.)" (People v. Racy (2007) 148 Cal.App.4th 1327, 1335.) "On the other hand, if there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged, such instructions shall not be given." (People v. Kraft (2000) 23 Cal.4th 978, 1063.)
An offense is a lesser necessarily included offense if the statutory elements of the greater offense include all of the elements of the lesser offense, so that the greater offense cannot be committed without also committing the lesser offense. (People v. Birks (1998) 19 Cal.4th 108, 117; see also People v. Reed (2006) 38 Cal.4th 1224, 1230-1231.) Misdemeanor indecent exposure is a lesser included offense to felony indecent exposure. (Bench Notes to CALCRIM No. 1160.)
In this case, the factor elevating a misdemeanor indecent exposure to a felony is entering an inhabited dwelling without consent. Defendant did not have to expose himself in the residence, there only had to be a clear nexus between the entry and the exposure. Defendant's defense was a complete denial that he exposed himself at all. Peggy testified at trial that defendant did not expose himself. But, Peggy's previous statements, and her 911 call stated he exposed himself immediately after he exited the house. She also stated defendant had his hands down the front of his pants for three to four minutes while he was in the kitchen. It is uncontested defendant entered her home without consent. Moreover, there was a clear nexus, temporally and by conduct, between defendant's entry into the home and his exposure. There is no basis, other than "an unexplainable rejection of the prosecution's evidence" (People v. Kraft, supra, 23 Cal.4th at p. 1063) on which the jury could have found defendant exposed himself on the porch, and at the same time rejected that he was in the home and there was a nexus between the two. Accordingly, an instruction on misdemeanor indecent exposure was not appropriate.
III. DISPOSITION
The judgment is affirmed.
/S/_________
RENNER, J. We concur: /S/_________
BUTZ, Acting P. J. /S/_________
DUARTE, J.