People v. Massicot

• Decision Date: 17 April 2002
• Docket Number: No. D035591.,D035591.
• Citation: 97 Cal.App.4th 920,118 Cal.Rptr.2d 705
• Parties: The PEOPLE, Plaintiff and Respondent, v. David MASSICOT, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

118 Cal.Rptr.2d 705

97 Cal.App.4th 920

The PEOPLE, Plaintiff and Respondent, v. David MASSICOT, Defendant and Appellant.

No. D035591.

Court of Appeal, Fourth District, Division 1.

April 17, 2002.

Suzanne F. Evans, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General,

Janelle M. Boustany and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, J.

A jury convicted David Massicot of two counts of indecent exposure with prior convictions for the same offense. (Pen.Code, § 314, subd. 1.)¹ Before trial, Massicot pleaded guilty to failure to register as a sex offender under section 290, subdivision (g)(1). The court suspended imposition of sentence and placed him on formal probation for five years. Massicot contends the court violated his constitutional rights to due process and a fair trial by misinterpreting the law so as to allow the jury to convict him of indecent exposure when he neither exposed his genitals to the public nor desired to direct attention to them, and prejudicially erred when it instructed the jury with an incorrectly modified version of CALJIC No. 16.220. Massicot further contends his conviction for indecent exposure is not supported by substantial evidence.

Under what we hold is the proper interpretation of the phrase "[e]xposes his person" in section 314, subdivision 1, we agree Massicot's conviction is not supported by substantial evidence because Massicot did not display his naked genitals. We also, necessarily, conclude the specific intent to expose one's genitals in this manner is an essential element of the indecent exposure offense. Accordingly, we reverse the judgment (order granting probation) as to Massicot's convictions of violation of section 314, subdivision 1. (§ 1237; People v. Stout (1967) 66 Cal.2d 184, 188, fn. 1, 57 Cal.Rptr. 152, 424 P.2d 704.)

FACTUAL AND PROCEDURAL BACKGROUND

In March 1999, Maria O. worked as a night clerk at an inn in Chula Vista. One morning that month about 2:30 a.m., a man who Maria O. later identified as Massicot appeared before the night customer window wearing a robe. He pulled up the robe and showed her he was wearing only women's flesh-colored lace underpants and lace bra. Massicot turned around and showed her his buttocks, which were revealed by the underpants he was wearing. Although she did not look at him for very long, Maria O. was able to see portions of Massicot's body from his thighs up, specifically his bare thighs, stomach, chest and shoulders. The underpants covered his genital area and she could not see his penis through them, although she could see a "bulge." According to Maria 0., Massicot looked to be showing off the undergarments he was wearing. She was fearful after the incident and did not want to work by herself at the hotel.

Two weeks later, at about the same time in the morning, Massicot appeared again before Maria O. wearing an unbuttoned shirt. He showed her he was wearing the same lace bra and underpants as before. She saw the same parts of his skin as during the prior incident. Fearing something might happen to her if Massicot appeared again, she asked her husband to accompany her to work at night.

On April 3, 1999, about 2:30 a.m., Massicot returned to the inn and tapped the night window to get Maria O.'s attention wearing the same robe, lace bra and underpants. The robe was open. She called to her husband, who was sleeping in the lobby, and Massicot fled. Maria O.'s husband obtained Massicot's license plate number and they called the police. According to a police officer arriving at the scene, Maria O. was sobbing and upset, and told him Massicot danced or gyrated before her outside the window. Police later told her they warned Massicot not to come to the inn again and she should call them if he returned.

On November 16, 1999, Massicot returned to the inn wearing a T-shirt and normal clothing. Maria O. called the police as she had been instructed. Police arriving at the inn found her crying and frantic. A police officer contacted Massicot at his house and upon a voluntary search, found a lace bra and underpants in a brown paper bag. The officer testified the underpants were a little smaller than a man's "Speedo" bathing suit, but agreed the undergarments were large and would cover a large part of a person's body, more than many women would wear at the beach.

Massicot told police after his arrest that he had been at the hotel and "acted kinky" to elicit a reaction from Maria 0.; he liked Asian, particularly Filipino, women. He fantasized about her and masturbated when he returned home.

Before trial, Massicot admitted that on October 28, 1997, he was convicted for violating section 314, subdivision 1, in former Los Angeles County Municipal Court. Massicot further conceded the sexual intent element would not be in issue at trial; he agreed his conduct toward Maria O. was for purposes of his sexual arousal.

At trial, the court permitted the prosecutor to argue to the jury that a violation of section 314, subdivision 1, did not require total nudity; that partial nudity without genital exposure would meet the exposure element of the statute.²

DISCUSSION

Massicot contends the court erroneously interpreted section 314, subdivision 1, to encompass willful and lewd conduct that does not involve exposure of the genitals, thus depriving him of his constitutional rights to a fair trial and due process. Massicot further contends his convictions for indecent exposure are not supported by substantial evidence because he was not nude and the evidence does not suggest he intended to direct public attention to his genitals. Finally, Massicot contends the court erroneously instructed the jury on the elements of section 314 with a modified version of CALJIC No. 16.220. The premise underlying all of these claims is that the crime of indecent exposure requires exposure of the genitals as a necessary element of the offense. Because we hold the only reasonable construction of the phrase "[e]xposes his person" within section 314 is that it means the display of a person's entirely unclothed body, including by necessity the bare genitals, we conclude that premise is correct and Massicot's convictions under section 314, subdivision 1 must be reversed.

Section 314 provides in 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 ... [¶] ... is guilty of a misdemeanor. [¶] ... [¶] Upon the second and each subsequent conviction under subdivision 1 of this section ..., every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison." The People contend that under the disjunctive language of the statute (exposes his person, or the private parts thereof), a defendant need not actually expose his or her private parts to commit the offense. Further, the People assert Massicot acted lewdly within the meaning of section 314, subdivision 1, despite the fact his genitals were opaquely covered by an undergarment; and that by opening his robe and displaying the underpants and his "bulge," Massicot called attention to his genitals as required by the "lewdness" prong of the statute. (See In re Smith (1972) 7 Cal.3d 362, 366, 102 Cal.Rptr. 335, 497 P.2d 807.)

There is no issue here whether Massicot exposed his genitals under section 314, subdivision 1. The People, interpreting the term "private parts" as synonymous with genitals,³ concede he did not. The question is whether, by displaying his bare shoulders, thighs and buttocks to Maria 0., Massicot exposed his "person" within the meaning of the statute. This is a matter of statutory interpretation. Thus, we begin with the statute itself. Where the statutory language in dispute is clear and unambiguous, there is no need for construction and the judiciary should not indulge in it. (California Fed. Savings & Loan Assn. v. City of Los Angeles (1995) 11 Cal.4th 342, 349, 45 Cal.Rptr.2d 279, 902 P.2d 297; see also Droeger v. Friedman, Sloan & Ross (1991) 54 Cal.3d 26, 38, 283 Cal.Rptr. 584, 812 P.2d 931 ["`It is axiomatic that in the interpretation of a statute where the language is clear, its plain meaning should be followed'"].) However, if the statutory language is not so clear, "[i]t is our task to construe, not to amend, the statute." (California Fed. Savings & Loan Assn. v. City of Los Angeles, supra, at p. 349, 45 Cal.Rptr.2d 279, 902 P.2d 297.) In construing a statute, it is the role of the judiciary to simply ascertain and declare what is in terms or in substance contained in the statute, not to insert what has been omitted or omit what has been included. In other words, the courts "may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used." (Ibid.)

Nothing in the context of section 314 justifies an interpretation of the phrase "[e]xposes his person" in any manner contrary to its plain meaning. The statute defines neither the word "expose" nor the word "person." Thus, we refer to their respective dictionary definitions. The definition of the word "expose" is "to cause to be visible or open to view." (Merriam Webster's Collegiate Diet., supra, at p. 410.) The word "person" is defined as "the body of a human being; also: the body and clothing (unlawful search of the [person])." (Id. at p. 867.) The dictionary does not define "person" as any part of the body, but the body as a whole. Thus, in order to expose the person within the plain meaning of the statute, one must "open to view" his or her body in its entirety, that is, in the nude. (Id. at p. 410.) A person in a state of complete undress necessarily displays his or...