P. v. Boyd

Filed 10/9/08 P. v. Boyd CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Hansel L. Boyd appeals an order granting probation following his conviction of indecent exposure. (Pen. Code,  314, subd. 1.)[1] We affirm.

FACTS AND PROCEDURAL HISTORY

On January 25, 2007, Alicia V. was studying at the University of Southern California Leavy Library. As she sat at a desk facing the wall, she heard noises of someone moving chairs behind her. She turned and saw Boyd, but then resumed studying.

Several minutes later, Alicia V. saw that Boyd was standing behind her, turned toward a window. She saw a shadow on the floor that appeared to be of his penis. Alicia V. turned and saw that Boyd was masturbating. She saw his hand on his penis and heard a friction-type noise. Boyd wore tight gray shorts that were lowered at his waist.

Alicia V. packed up her belongings and left the desk. She approached Boyd and asked if he were a student. He replied affirmatively. Alicia V. attempted to photograph him with her camera-phone, but was unable to take a clear photograph.

Alicia V. walked to the library's front desk and reported the incident. As she spoke with the library employee, Boyd left the library. The employee contacted the university police department.

University Police Officer James Casebeer quickly responded to the report of indecent exposure. He saw Boyd inside a nearby classroom building. When Boyd saw Casebeer, he walked in a different direction. Casebeer instructed Boyd to stop, and he complied. Casebeer searched Boyd and found a small jar marked "Vaseline" in Boyd's sock. Boyd informed Casebeer that his name was "Sonny Brown." Casebeer checked the student database, but did not find that name.

Los Angeles Police Officer Lisa Kelly arrived and detained Boyd. Alicia V. then identified him as the man who masturbated behind her. When Kelly informed Boyd that he was under arrest, he asked if the officer could retrieve his pants from another library, the Doheny Library. Officers later searched but did not locate Boyd's pants in that library.

During trial and outside the jury's presence, Boyd admitted that he suffered an indecent exposure conviction in 1999. ( 314 [". . . Upon the second . . . conviction under subdivision 1 of [section 314] . . . every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison"].)

The jury convicted Boyd of indecent exposure. ( 314, subd. 1.) The trial court suspended imposition of sentence and granted Boyd five years' probation with terms and conditions, including service of 534 days in county jail. The court awarded Boyd 534 days' presentence custody credits, and imposed various fines and fees.

Boyd appeals and contends that the trial court erred by: l) withdrawing an element of the criminal offense during jury deliberations; 2) improperly instructing with a flight instruction (CALJIC No. 2.52); and 3) not instructing, sua sponte, with CALJIC Nos. 2.71 regarding an oral admission, and 2.72 regarding corpus delicti. He asserts that the errors, individually or cumulatively, compel reversal.

DISCUSSION

I.

Boyd argues that the trial court denied his constitutional rights to a jury trial and to due process of law by removing an element of the criminal offense of felony indecent exposure from the jury's deliberations. He asserts that the prosecutor did not establish evidence of the element, thus permitting only his conviction of the lesser offense of misdemeanor indecent exposure.

The trial court initially instructed with CALJIC No. 10.38, the elements of the crime of felony indecent exposure. The third element of the felony crime requires the defendant to have "exposed himself after having entered without consent an inhabited portion of any building." The trial court also instructed that misdemeanor indecent exposure did not require the third element.

During jury deliberations, the jury inquired by written note whether "the general public [is] required to gain consent prior to entering the library." After discussion with counsel, the trial court decided that the proper charge here was felony indecent exposure because Boyd had admitted, outside the jury's presence, that he suffered a prior conviction for indecent exposure. ( 314.) The trial court stated that it intended to strike the third element from the instruction (regarding consent to enter the library) and delete the lesser offense of misdemeanor indecent exposure. The court then instructed that it was removing the third element as well as misdemeanor indecent exposure from deliberations, and that the jury should begin deliberations anew.

The trial court did not err because Boyd admittedly suffered a prior indecent exposure conviction, thereby making the present offense a felony. Section 314 provides: " . . . Upon the second and each subsequent conviction under subdivision 1 of this section, . . . every person so convicted is guilty of a felony . . . ." Even if the jury had convicted Boyd of misdemeanor indecent exposure, section 314 requires that the conviction be treated as a felony if the defendant has suffered a prior indecent exposure conviction. In sum, the offense of indecent exposure requires proof of two elements: a willful and lewd exposure of a person's genitals, and exposure in a public place or a place where others are present and offended thereby. (People v. Carbajal (2003) 114 Cal.App.4th 978, 982.) A prior conviction for indecent exposure is a sentencing factor that elevates the crime to a felony. (People v. Merkley (1996) 51 Cal.App.4th 472, 476.)

II.

Boyd asserts that the trial court erred by instructing with CALJIC No. 2.52, "Flight After Crime." He argues that insufficient evidence of flight exists. Boyd also contends the instruction improperly highlights any flight evidence. He argues that the flight instruction violates his constitutional right to due process of law because it allows a permissive inference affecting the burden of proof. He adds that the error is prejudicial under any standard of review.

CALJIC No. 2.52 provides: "The flight of a person immediately after the commission of a crime, or after he is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide." The instruction does not assume the guilt of the accused or that any flight occurred. (People v. Escobar (1996) 48 Cal.App.4th 999, 1029, disapproved on other grounds by People v. Mendoza (2000) 23 Cal.4th 896, 923-925.) Its cautionary nature benefits the defense by admonishing circumspection regarding flight evidence. (People v. Jackson (1996) 13 Cal.4th 1164, 1224.)

A flight instruction is proper where the evidence establishes that defendant departed the crime scene under circumstances suggesting that departure was motivated by consciousness of guilt. (People v. Bradford (1997) 14 Cal.4th 1005, 1055.) Flight does not require the physical act of running, but does require a purpose to avoid observation or arrest. (Ibid.) Of course, mere departure from the crime scene, without more, does not warrant an inference of consciousness of guilt. (Ibid.) The instruction does not require defendant's knowledge that criminal charges have been filed. (People v. Carter (2005) 36 Cal.4th 1114, 1182.)

Our Supreme Court has rejected the contention that the flight instruction permits an unconstitutional inference affecting the burden of proof. (People v. Mendoza (2000) 24 Cal.4th 130, 179-180.) The instruction "permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt." (Id. at p. 180.) A permissive inference does not relieve the prosecutor of his burden of persuasion because he must convince the trier of fact that it should infer the suggested conclusion of guilt from proof of predicate facts. (Ibid.) Moreover, the instruction is not an improper pinpoint instruction because it "informs the jury that it may consider flight in connection with all other proven facts, giving the fact of flight the weight the jury deems appropriate." (Ibid.)

Here sufficient evidence supported the instruction. When Alicia V. gathered her belongings to leave the library, Boyd walked into the bookstacks. As she reported the incident to the front desk, he left the library. When he saw Officer Casebeer looking at him, he walked in another direction. Boyd continued walking until Casebeer ordered him to stop. The flight instruction permitted the jury to consider and weigh this evidence, along with other evidence, in deciding guilt. ( 1127c [requiring flight instruction "where evidence of flight of a defendant is relied upon as tending to show guilt"].)

III.

Boyd contends that the trial court erred by not instructing with CALJIC No. 2.71, regarding viewing an oral admission with caution. He asserts that his request to retrieve his pants from another library is an oral admission because it tends to prove his guilt when considered with other evidence. Boyd also argues that the trial court erred by not instructing with CALJIC No. 2.72, regarding proof of a crime independent of a defendant's admissions. He claims the errors are prejudicial because it is reasonably probable that he would have obtained a more favorable result otherwise. Boyd points out that his attorney argued during summation that he merely "was adjusting his private area [or] scratching or itching."

CALJIC No. 2.71 defines an admission as "a statement made by a defendant which does not by itself acknowledge his guilt of the crime for which the defendant is on trial, but which statement tends to prove his guilt when considered with the rest of the evidence." (People v. Carpenter (1997) 15 Cal.4th 312, 392-393 [discussion of general rule], disapproved on other grounds by Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) The instruction admonishes that the jury should view the evidence of an oral admission "with caution." (People v. Slaughter (2002) 27 Cal.4th 1187, 1199.)

The trial court erred by not instructing with CALJIC No. 2.71. Nevertheless, it is not reasonably probable that Boyd would have obtained a more favorable result had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th 312, 393 [standard of review].) Evidence regarding the statement was uncontradicted. There was also "'no evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported.'" (Ibid.) The trial court also instructed regarding witness credibility, thereby providing guidance upon crediting testimony. (Ibid.)

The trial court also erred by not instructing with CALJIC No. 2.72, regarding "proof of each element of the crime independent of any admission." The error is harmless, however, because the prosecutor established independent evidence of injury or harm from a criminal agency. (People v. Alvarez (2002) 27 Cal.4th 1161, 1181.) "[A] rational jury, properly instructed, could not have found otherwise . . . ." (Ibid.)

IV.

Boyd argues that the cumulative effect of the errors compels reversal. As discussed ante, however, the instructional errors are not prejudicial. "A defendant is entitled to a fair trial, not a perfect one." (People v. Mincey (1992) 2 Cal.4th 408, 454.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

George G. Lomeli, Judge

Superior Court County of Los Angeles

______________________________

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Eric J. Kohm, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

[1] All further statutory references are to the Penal Code.