P. v. Wright

Filed 1/5/10 P. v. Wright CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County. Alice E. Altoon, Judge. Reversed.

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Joseph S. Klapach, 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, Assistant Attorney General, Kenneth C. Byrne and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.

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Stanley A. Wright appeals from his conviction on one count of indecent exposure with a prior. He contends that the trial court erroneously refused his request for a jury instruction on voluntary intoxication. We agree and reverse.

BACKGROUND

The information charged Wright with one count of indecent exposure with a prior conviction for the same offense, in violation of Penal Code section 314. The information also alleged that Wright had suffered one prior serious or violent felony conviction within the meaning of Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). Wright pleaded not guilty.

On October 2, 2007, defense counsel declared a doubt as to Wrights competency to stand trial. Wright waived jury trial on the issue, and the court found Wright not competent to stand trial. The court suspended criminal proceedings and ordered that Wright be placed at a state facility for treatment. On the basis of a later report from the facility, the court found that involuntary antipsychotic medication is necessary as a part of treatment to assist the defendant in regaining competency, and the court ordered the facility to administer medications that are deemed appropriate. On July 8, 2008, the trial court received certification of Wrights competency to stand trial, so the court resumed criminal proceedings. The court granted Wrights request to bifurcate trial on the prior conviction allegations.

The charge was tried to a jury, which found Wright guilty. The court found the prior conviction allegations true and sentenced Wright to the low term of 16 months, doubled to 32 months pursuant to Penal Code sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d). The court also ordered Wright to register as a sex offender, imposed various statutory fines and fees, and credited Wright with 379 days of presentence custody, consisting of 170 days actual custody, 84 days good time/work time, and 125 days at the state mental health facility.

The evidence introduced at trial showed the following facts: At approximately 6:30 a.m. on June 29, 2007, Wayford Pool arrived at his Seven-Eleven convenience store at the corner of Laurel Canyon and Chandler Boulevard. Upon arrival, Pool found Wright lying down on some pornographic newspapers that were spread out on the sidewalk in front of the store. Wright was masturbating, his penis was erect, and he was mumbling and groaning.

Pool asked Wright to leave, but Wright did not respond and continued to masturbate. Pool went inside the store to give Wright some time to leave, but Wright remained. When Pool came outside about five minutes later, Wright was still there masturbating and mumbling. In the meantime, approximately 10 to 15 customers had passed by Wright on their way in and out of the store.

Pool again asked Wright to leave and said he was going to call the police, but Wright still did not respond. Pool called the police, and upon their arrival Wright sat up. The police directed him to stand up, and he wobbled and stood against the wall as they searched him.

DISCUSSION

On cross-examination, Pool testified that it looked like Wright was either under the influence of drugs or alcohol at the time of the incident. Pool also testified that Wright was mumbling unintelligibly, did not make eye contact or otherwise acknowledge Pool when Pool told him to leave, just gaze[d] off into space and seemed to be in his own world, and wobbled when he finally stood up. On the basis of that testimony, Wright requested a jury instruction on voluntary intoxication. The trial court denied the request on the ground that there was insufficient evidence that Wright was intoxicated. On appeal, Wright argues that the trial court erred. We agree.

Evidence of voluntary intoxication is admissible . . . on the issue of whether or not the defendant actually formed a required specific intent . . . . (Pen. Code,  22, subd. (b).) Indecent exposure is a specific intent crimein order to be guilty, Wright must have exposed himself with the specific intent to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or for the purpose of sexually offending another person. (In re Smith (1972) 7 Cal.3d 362, 366.) The trial court was thus obligated to give the jury an instruction on voluntary intoxication if there was substantial evidence to support it. (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386.)

The record contains substantial evidence to support an instruction on voluntary intoxication. Pool testified that Wright appeared to be either under the influence of drugs or alcohol, was mumbling unintelligibly, did not make eye contact or otherwise acknowledge Pool when Pool told him to leave, just gaze[d] off into space and seemed to be in his own world, and wobbled when he finally stood up. A jury could have reasonably inferred from that evidence that Wright was intoxicated and that his intoxication interfered with his formation of the specific intent required for the charged crimethe jury could, for example, have reasonably concluded that Wrights intoxication rendered him so unaware of his surroundings that he could not have intended to direct public attention to his genitals, because he was not even aware that anyone else was present.

Respondent argues that because Pool did not know what [Wright] acted like when he was not intoxicated, it is impossible to know if this was [Wrights] normal behavior. The argument fails because even if there were multiple conflicting inferences that the jury could reasonably have drawn from the evidence, one of those inferences is that Wright was intoxicated and that his intoxication interfered with his formation of the requisite intent. Respondents claim that it is impossible to know whether Wright was intoxicated therefore misses the point that the jury could have reasonably inferred that Wright was intoxicated, and that an intoxication instruction was consequently warranted.

Respondent also emphasizes that a voluntary intoxication instruction is required only if there is evidence that the intoxication interfered with the defendants formation of the required specific intent. We have already explained, however, that the record in this case does contain such evidence.

Finally, respondent argues that any error in refusing to give the instruction was harmless under the standard of People v. Watson (1956) 46 Cal.2d 818, 836, because it is not reasonably probable that Wright would have obtained a more favorable result if the instruction had been given. We disagree. The evidence showed that Wright was already masturbating when Pool arrived at the store. Because there is no evidence that anyone besides Wright was present before Pool arrived, there is no evidence that Wright intended to direct anyones attention to his genitals at that time. And the jury could have reasonably inferred from Pools testimony that even after Pool and various customers arrived, Wright remained unaware of their presence, unresponsive and gaz[ing] off into space. On that basis, the jury could have reasonably inferred that Wright still did not intend to direct anyones attention to his genitals, because he did not even realize that anyone was there. Had the jury been given the voluntary intoxication instruction, it is reasonably probable that they would have drawn those inferences and found that Wright lacked the required specific intent.

The cases respondent relies on are straightforwardly distinguishable. The cases are all murder (or attempted murder) cases in which there was a wealth of evidence that the defendants intoxication did not interfere with formation of the requisite intent, and no evidence to the contrary. For example, in People v. Williams (1997) 16 Cal.4th 635, there was no evidence at all that voluntary intoxication had any effect on defendants ability to formulate intent (id. at pp. 677-678), but there was abundant evidence that the defendant did intend to kill the four victims. (Id. at pp. 648-649 [the defendant directed an accomplice to drive him to the victims street, instructed the driver to park at the corner but keep the motor running, entered the victims house with an accomplice, returned a few minutes later carrying a handgun, held the gun up, spun it around, blew on its barrel, and said he had only one bullet left; all four victims died from gunshot wounds to the head, three of them having been shot in their beds, execution style].) In this case, in contrast, the evidence of intent was not nearly so overwhelming, and the evidence of intoxication does cast doubt on Wrights ability to form the requisite intent.^[1]

DISPOSITION

The judgment of conviction is reversed.

NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J.

We concur:

CHANEY, J.

JOHNSON, J.

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^[1] Our resolution of Wrights claim of instructional error makes it unnecessary for us to address the other issues Wright raises, including the issue he raised for the first time at oral argument and on which we allowed supplemental briefing. We note nonetheless that we agree with respondent that, on either of the applicable tests, lewd conduct in a public place is not a necessarily included lesser offense of indecent exposure, because (1) the elements of lewd conduct, but not indecent exposure, include touching of the genitals, buttocks, or female breasts (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256), and (2) the information does not allege any such touching. (See People v. Birks (1998) 19 Cal.4th 108, 117 [describing the two tests for determining necessarily included lesser offenses].)