People v. Kirkland, A121198 (Cal. App. 2/25/2010)

• Decision Date: 25 February 2010
• Docket Number: A121198.
• Parties: THE PEOPLE, Plaintiff and Respondent, v. THOMAS KIRKLAND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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THE PEOPLE, Plaintiff and Respondent, v. THOMAS KIRKLAND, Defendant and Appellant.

A121198.

Court of Appeals of California, First Appellate District, Division One.

February 25, 2010.

Appeal from the Super. Ct. for the City & County of San Francisco, No. 293422.

Not to be Published in Official Reports

DONDERO, J.

Defendant was convicted following a jury trial of felony indecent exposure (Pen. Code, § 314, subd. (1)), and the trial court found true the allegation of a prior strike conviction (Pen. Code, § 1170.12, subd. (c)).¹ The court imposed a total state prison term of six years.

In this appeal defendant argues that the trial court erred by refusing to instruct on the lesser included offense of disorderly conduct, and the evidence fails to support a finding of the essential intent element of the indecent exposure offense. We conclude that a lesser included offense instruction was not required, and the evidence supports the conviction. We therefore affirm the judgment.²

STATEMENT OF FACTS

The Charged Offense.

On September 7, 2007, between midnight and 1:00 a.m., Samara Isaacs was alone in her studio apartment on the second floor at 31 Joice Street in San Francisco, working on her computer, when she heard the lobby door downstairs pop "like it was opened forcefully." She then heard "rustling downstairs" for about 20 minutes before "the noise came upstairs" to the second floor hallway. Isaacs looked through the peephole of her front door and observed defendant "stumbling around" at the "far end of the hall" near the stairs. Defendant then removed his pants and "started masturbating" as he stumbled towards Isaacs's apartment door. When defendant reached the door and touched the doorknob, Isaacs thought he "was going to force entry" into her apartment so she "called 911" to report that a "naked Black male" was "playing with himself sexually" in front of her second floor apartment door.

About 10 minutes later police officers arrived at the apartment building as defendant walked away from Isaacs's apartment door back toward the end of the second floor hallway and began to "fumble around" with his clothes. When the officers reached the second floor of the building they observed defendant in the hallway, approximately 25 feet from Isaacs's apartment number three, "fixing his pants, trying to tuck in his shirt." Defendant complied with the officer's order to display his hands. He was then handcuffed and taken out of the building. On the floor of the hallway near defendant the officers found socks, a bar of soap, two jackets, and a bag of "his belongings."

The Prior Uncharged Acts.

The prosecution also presented evidence of a series of similar uncharged acts committed by defendant over the course of many years in San Francisco, the first of which occurred on November 30, 1990, at an apartment building at 511 Leavenworth Street. Francine Rahn testified that she was acquainted with defendant, who was known to her as "T.K.," and was considered "an unwelcome presence in that building." As Rahn left her apartment on the fourth floor that morning and walked down the stairs, defendant yelled "over here" to her from behind an apartment door, then "came out of the apartment masturbating." Defendant was not wearing any clothes, and had a "big grin" as he looked at Rahn. He "continued to masturbate" as he walked directly past Rahn to a banister.

The next incident occurred on the morning of July 21, 1993, at an apartment building at 945 Green Street. Gil Ramos, the apartment building supervisor, testified that between 9:00 and 10:00 that morning he noticed defendant lying on a stairway in the garden at the back of the building, naked, "playing with himself." Ramos asked defendant "to leave," but defendant "just looked" at him, so Ramos called the police. Within five minutes police officers arrived; they observed defendant in the garden with a belt around his neck and his underpants down at his ankles "masturbating" with a container of baby oil in his hands. Defendant continued to masturbate as the officers approached him. When the officers ordered defendant to put on his pants, he "just stopped." After defendant was handcuffed he stated to the officers, "You do it in your home. Should I do it in an alley?"

On the afternoon of March 17, 1994, San Francisco police officers responded to a report of "somebody running around" the large commercial building" at 123 Townsend "with no clothes on." The officers began "looking around on the floors" of the building, and found defendant in the office of a travel agency, "completely naked." Defendant said he had "misplaced his clothes or couldn't find them or something." He was taken into custody and transported to the police station, but was not "cited" for an offense. He had had "several priors for trespassing," did not have identification in his possession, and was already "on parole or violation of parole."

Defendant was again the subject of a report to the police on the night of October 3, 2000, at an apartment building at 747 Geary Street. Rebecca testified that as she was in her top floor apartment "reading in bed" she looked out her window to the "sky roof" of the building and observed a man "naked from the waist up" — her view of the lower half of the man's body was obstructed — "moving around, kind of dancing" with his arms in the air.³ The man did not look like a tenant in the building, so Rebecca called the police. Before the police arrived, Rebecca heard a noise at her front door. When she looked out her peep hole, she "saw a naked man" in front of her door. She then "backed away from the door" and responded to a request from the police to "buzz them in." Police officers discovered defendant on the stair well of the apartment building between the fifth floor and the roof, "naked and oily." When the officers asked defendant, "What's going on?" he responded that "he was jacking off and the woman wanted it." He was immediately arrested. In a subsequent interview defendant admitted that he was "masturbating" in the public stairway just below the roof of the building, and did that "pretty often."⁴ Defendant stated that he did not "think it's wrong." He denied that he knocked on anyone's door or jiggled any doorknobs.

Finally, the prosecution offered testimony that on the morning of January 10, 2007, San Francisco police officers were dispatched to an apartment building at 1034 Stockton following a report of "a Black male inside the building" walking around "on the second floor naked." The officers discovered defendant on the second floor hallway of building, wearing a cap and shirt, but no pants or shoes. He was holding a pornographic magazine in his left hand. After handcuffs were placed on defendant, his pants and a duffel bag were found at the other end of the hallway. Pieces of plastic "called celluloids" — used to force locks open — were removed from the left rear pocket of defendant's pants.

DISCUSSION

I. The Trial Court's Refusal to Give an Instruction on the Offense of Disorderly Conduct.

Defendant claims that the trial court committed error by refusing to give an instruction requested by the defense on lewd or disorderly conduct (§ 647, subd. (a)), as a lesser included offense. Defendant argues that lewd conduct is a necessarily included offense of the charged crime of indecent exposure (§ 314, subd. (1)), and the evidence presented at trial supported the requested lesser offense instruction.⁵ He adds that the failure to give the lesser included offense instruction was prejudicial, as the evidence of "the element of intent" required to prove the greater charged offense was weak.

"A criminal defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and an erroneous failure to instruct on a lesser included offense constitutes a denial of that right." (People v. Huggins (2006) 38 Cal.4th 175, 215; see also People v. Cash (2002) 28 Cal.4th 703, 736.) "The sua sponte duty to instruct, and a fortiori, the responsibility to provide instructions on request, in connection with a lesser offense . . . exists when there is substantial evidence to support the defendant's culpability of the necessarily included crime." (People v. Sinclair (1998) 64 Cal.App.4th 1012, 1016; see also People v. Avena (1996) 13 Cal.4th 394, 424.) A trial court errs if it fails to instruct on lesser included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.)

"[T]his does not mean that the trial court must instruct sua sponte on the panoply of all possible lesser included offenses. Rather, . . . `"such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is `substantial enough to merit consideration' by the jury. [Citations.] `Substantial evidence' in this context is `"evidence from which a jury composed of reasonable [persons] could . . . conclude[]"' that the lesser offense, but not the greater, was committed."' [Citation.] The classic formulation of this rule is expressed in People v. Webster[ (1991)] 54 Cal.3d 411, 443: `When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so.'" (People v. Huggins, supra, 38 Cal.4th 175, 215; see also People v. Ochoa (1998) 19 Cal.4th 353, 422; People v. Berryman (1993) 6 Cal.4th 1048, 1081; People v. Ceja (1994) 26 Cal.App.4th 78, 85.) The duty to instruct on lesser included offenses also "exists even though the evidence supporting the lesser offense is inconsistent with the accused's defense." (People v. Sinclair, supra, 64 Cal.App.4th 1012, 1017.) "The trial court must instruct on lesser included offenses when there is substantial evidence to support the...