In re David H.

In re David H.

Filed 10/21/08 In re David H. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re DAVID H., a Person Coming Under the Juvenile Court Law _ THE PEOPLE, Plaintiff and Respondent, v. DAVID H., Defendant and Appellant.

G039881 (Super. Ct. No. DL027441) O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Richard E. Behn, Judge. Affirmed.

Lisa M. Bassis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

THE COURT:*

After a disposition hearing in the Orange County Superior Court on December 21, 2007, the court found defendant to be a ward of the court pursuant to Welfare and Institutions Code section 602, and found he committed the offense of indecent exposure pursuant to Penal Code section 314, subdivision (1). Defendant was subsequently ordered to be continued as a ward of the Orange County Juvenile Court, and was committed to a juvenile facility for 30 days.

On appeal defendant complains the evidence was insufficient to support the courts finding he committed indecent exposure. We disagree, and affirm the judgment.

I

Factual and Procedural Background

On October 7, 2007, David Aragon, (Aragon) a probation counselor at the Los Pinos Conservation Camp, a co-ed juvenile facility run by the Orange County Probation Department, was walking along the grounds with defendant and another minor while on their way to dinner. Aragon and the two youths were walking on a pathway that ran straight in the direction of the girls dormitory. The dormitory had large windows between five and six feet across. Testimony established the blinds covering the windows were drawn closed.

When the threesome were about 10 feet away from the dormitory, Aragon heard defendant make comments about the girls dormitory, while at the same time making comments about his [defendants] Chorizo which is a derogatory word in Spanish for penis. According to Aragon, defendant said in Spanish, my penis is large. At the same time defendant made these remarks, he looked at the girls dormitory window, put his hands down his pants, and pulled his penis out far enough so that Aragon could see his scrotum was slightly exposed. Defendants penis was flaccid, he did not masturbate or thrust his hips, and he did not yell out. The exposure lasted only for a few seconds.

Aragon told defendant to put his penis back in his pants, and defendant did so. Aragon was offended by defendants conduct and felt uncomfortable at defendants actions because he was a staff member and defendant was a minor.

II

Discussion

Defendant contends there is insufficient evidence to support his indecent exposure conviction because there was no evidence of lewd intent. We disagree.

Penal Code section 314 provides in pertinent 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. . . .

The separate requirement that the intent of the actor be lewd is an essential element of the offense. . . . (In re Smith (1972) 7 Cal.3d 362, 365.) And a conviction for this 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 purpose of sexual arousal, gratification or affront. [Citation.] (People v. Archer (2002) 98 Cal.App.4th 402, 404.)

In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party 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. [Citations.] (People v. Wader (1993) 5 Cal.4th 610, 640.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) And, it is not within our province to reweigh the evidence or redetermine the issues of credibility. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Moreover, these same principles apply to proceedings pursuant to Welfare and Institutions Code section 602. (In re Jesse L. (1990) 221 Cal.App.3d 161, 165.)

Defendants act of exposing his penis while directly facing the windows of the girls dormitory, while accompanied by the comment he made that his Chorizo or his penis is large can logically be characterized as an act undertaken for the purpose of sexual arousal, gratification or affront. Even if none of the inhabitants of the girls dormitory saw defendant expose himself it cannot be said that his act was not a deliberate action directed at anyone. His acts can be reasonably characterized as directed towards any of the female inhabitants of the dormitory who may have been present at the time he chose to expose himself. Further, no clear evidence established at trial that the dormitory was in fact empty at the time.

And, even if no one in the dormitory saw defendant expose himself his conviction would still not fail. A conviction for indecent exposure under Penal Code section 314, subdivision 1, requires evidence a defendant actually exposed his or her genitals in the presence of another person. But, there is no concomitant requirement the person actually must have seen the defendants genitals. A conviction for indecent exposure will be upheld in the absence of evidence of any direct visual observation of the genitals so long as there is sufficient circumstantial evidence to show that actual exposure occurred. (People v. Carbajal (2003) 114 Cal.App.4th 978, 986.)

In sum, the location where defendant exposed himself, the language he uttered just prior to, and while he was exposing himself, clearly establish substantial evidence of his guilt.

III

Disposition

The judgment is affirmed.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

* Before Sills, P.J., Rylaarsdam, J., and Ikola, J.