People v. Carbajal

• Decision Date: 30 December 2003
• Docket Number: No. G031514.,G031514.
• Citation: 8 Cal.Rptr.3d 206,114 Cal.App.4th 978
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Nicolas Limon CARBAJAL, Defendant and Appellant.

8 Cal.Rptr.3d 206

114 Cal.App.4th 978

The PEOPLE, Plaintiff and Respondent, v. Nicolas Limon CARBAJAL, Defendant and Appellant.

No. G031514.

Court of Appeal, Fourth District, Division 3.

December 30, 2003.

Review Denied March 24, 2004.

Phillip I. Bronson, under appointment by the Court of Appeal, Encino, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Raquel M. Gonzalez and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RYLAARSDAM, Acting P.J.

We have been asked to decide whether defendant Nicolas Limon Carbajal's conviction for indecent exposure (Pen.Code, § 314, subd. 1) is valid where there is no evidence that anyone actually saw his naked genitals. We conclude it is, based on circumstantial evidence that actual exposure occurred in the presence of other persons. We arrive at this conclusion after determining that visual observation of the exposed genitals is not an element of the offense. Further, we disagree with defendant's contention that the trial court erred in refusing to give a special instruction defining exposure of one's person as the display of a person's naked genitalia. We therefore affirm.

FACTS

On two different occasions in May 2001, Norma Villa Bueno observed that defendant appeared to be masturbating as he sat at a table in a Mexican restaurant where she worked as a cashier. The first time, after eating his food, defendant placed his fist inside his shorts and moved his hand up and down for about 5 to 10 minutes. Three weeks later, defendant entered the restaurant, and, after eating, engaged in similar conduct; only this time, he ejaculated onto the floor beneath the table. The area had been clean before defendant sat there. Prior to leaving the restaurant, defendant wiped his hand off with a napkin and threw a newspaper on top of the puddle of semen. The police officers who later took a report of the incident did not collect a sample of the semen.

Villa Bueno testified that she did not actually see defendant's penis on either occasion. She further testified that she could not be sure defendant had his fist on his penis during the first incident, but the second time she was sure that he did. On that occasion, defendant wore a t-shirt that fell below his crotch and a pair of loose-fitting, knee-length shorts. Although Villa Bueno's view of defendant's genitals was partially obscured by chairs and by his clothing, she could tell he had taken his penis out of his shorts while holding it in his fist because she could see the skin of his fist "[w]hen he made strong movements...." She recognized the white substance deposited on the floor underneath the table as semen. Another restaurant employee also saw defendant moving his fist up and down in his crotch area during the second incident, but she could not tell if his hand was inside or outside of his shorts.

Defendant's girlfriend testified that defendant had a rash on his testicles and that she frequently saw him reach his hand down inside of his pants to scratch that area. But she never saw him do this in a public place. Defendant used a white cream which had the consistency of a thick lotion for his rash. Defendant's girlfriend testified that he did not carry the cream around with him, and she did see him use it very often.

After the prosecution rested, the trial court granted defendant's motion for acquittal on the indecent exposure count relating to the first incident for lack of sufficient evidence. The jury found defendant guilty of indecent exposure and lewd conduct relating to the second incident, but not guilty of lewd conduct as to the first incident.

DISCUSSION

Sufficiency of the Evidence

1. Overview of the Issue

Defendant argues his conviction for indecent exposure must be reversed because the witnesses did not actually see his genitals.

Penal Code 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...." Generally, a conviction for indecent exposure requires proof of two elements: "(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present others to be offended or annoyed thereby." (People v. Swearington (1977) 71 Cal.App.3d 935, 943, 140 Cal.Rptr. 5.)

The Attorney General contends the statute "does not require that the victim see the perpetrator's genitals, but only that the perpetrator display his or her genitals in a public place or place where others are present." As the Attorney General indicates, one definition of the word "expose" is "to cause to be visible or open to view." (Merriam-Webster's Collegiate Dict. (10th ed.1999) p. 410; see also People v. Massicot (2002) 97 Cal.App.4th 920, 926, 118 Cal.Rptr.2d 705.) But defendant argues there is inadequate evidence that he exposed himself since neither witness saw his penis. Thus, we are left with the question of whether a witness's visual observation of a defendant's private parts is necessary to support a conviction for indecent exposure.

2. The Common Law Offense of Indecent Exposure

As did our colleagues in People v. Massicot, we note the remarkable absence of case law interpreting the language of Penal Code section 314, subdivision 1. (People v. Massicot, supra, 97 Cal.App.4th at p. 926, 118 Cal.Rptr.2d 705.) In that case, the court had to determine whether a defendant who concealed his genitals but publicly exposed other parts of his body, i.e., his bare shoulders, buttocks, and thighs, could be convicted of indecent exposure. The court reversed the conviction, concluding the word "person," as used in the statute, means an "entirely unclothed body, including by necessity the bare genitals...." (Id. at pp. 924, 932, 118 Cal.Rptr.2d 705.) In reaching this conclusion, the court turned to the common law offense of indecent exposure which, it determined, "require[d] display of the genitals." (Id. at p. 928, 118 Cal.Rptr.2d 705.)

Penal Code section 314 was enacted in 1872 as section 311; no substantive changes have been made to subdivision 1 since that time. "We presume that when the statute was enacted the Legislature was familiar with the common law rule, and `when it couches its enactment in common law language, that its intent was to continue those rules in statutory form....' [Citation.]" (People v. Martin (1985) 168 Cal.App.3d 1111, 1116, 214 Cal.Rptr. 873.) Thus, we may rely on "the common law meaning of the language in question," here the term "expose," to resolve any ambiguity in its intended meaning. (In re Newbern (1960) 53 Cal.2d 786, 792, 3 Cal.Rptr. 364, 350 P.2d 116; see also 2B Singer, Statutes and Statutory Construction (6th ed.2000 rev.) § 50:01, p. 140 ["[a]bsent an indication that the legislature intends a statute to supplant common law, the courts should not give it that effect"].) We therefore turn to the common law to determine whether visual observation of the offender's genitals is an element of the offense of indecent exposure.

"At common law, the `indecent exposure' of the private parts of a person to public view was treated as a nuisance and punishable as a misdemeanor. It was not required that the exposure be observed; it was necessary merely that the exposure occur in a public place." (3 Wharton's Criminal Law (15th ed.1995) § 308, pp. 196-200, fns. omitted; see also Annot., Criminal Offense Predicated Upon Indecent Exposure (1964) 94 A.L.R.2d 1353, 1355, § 3 ["the elements of the offense of indecent exposure at common law are a wilful and intentional exposure, and its occurrence in a public place and in the presence of an assembly"].) Early cases from other jurisdictions confirm this view of the common law.

In 1835, the North Carolina Supreme Court upheld a defendant's conviction for publicly exposing his naked person even though it was not alleged that the act had been committed in the presence of others. (State v. Roper (1835) 18 N.C. 208 .) The court determined, "[i]t is not necessary ... that the disgusting exhibition should have been actually seen by the public; it is enough, if the circumstances under which it was obtruded were such as to render it probable that it would be publicly seen...." (1835 WL 331 at p. 1.) Some years later, the North Carolina Supreme Court revisited the issue in considering whether a defendant charged with profanely swearing and cursing in public could be convicted for such offense absent any allegation that the profanity had been heard by others. (State v. Pepper (1873) 68 N.C. 259, 1873 WL 2117, p. 2.) The court again looked to common law cases involving indecent exposure and concluded that "when the nuisance charged is an offence to the sense of sight, it must be charged and proved that it was exposed to the view of divers persons." (1873 WL 2117 at p. 3.)

At the turn of the last century, the Supreme Court of Iowa upheld a conviction for indecent exposure based on an indictment that failed to allege anyone saw the exposure of the defendant's person. (State v. Martin (1904) 125 Iowa 715, 101 N.W. 637, 638.) "It will be observed that the crime as defined by the statute does not require that the exposure shall be made in the actual sight of any person, and ... `if a case should be made by confession, corroborated by circumstances, a defendant might properly be convicted of this offense, although no person witnessed the indecent act.' ... The words `indecent exposure' clearly imply that the act is either in the actual presence and sight of others, or is in such a place or under such circumstances that the exhibition is liable to be seen by others, and is presumably made for that purpose...." (101 N.W. at p. 638.)

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