Smith, In re

• Decision Date: 13 June 1972
• Docket Number: Cr. 15986
• Citation: 7 Cal.3d 362,497 P.2d 807,102 Cal.Rptr. 335
• Court: California Supreme Court
• Parties: , 497 P.2d 807 In re Chad Merrill SMITH on Habeas Corpus. In Bank

Page 335

102 Cal.Rptr. 335

7 Cal.3d 362, 497 P.2d 807

In re Chad Merrill SMITH on Habeas Corpus.

Cr. 15986.

Supreme Court of California,

In Bank.

June 13, 1972.

Odorico & Franklin and J. David Franklin, San Diego, for petitioner.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Mark L. Christiansen and Alexander B. McBonald, Deputy Attys. Gen., for respondent.

MOSK, Justice.

This is a petition for writ of habeas corpus by Chad Merrill Smith, who is under the constructive restraint of probation following his conviction of indecent exposure. (Pen.Code, § 314, subd. 1.)

The issue is whether the act of sunbathing in the nude on an isolated beach, without intent to engage in sexual activity, is punishable under a statute which makes it a crime to 'willfully and lewdly' expose the private parts of the body. We conclude that the conduct in question is not prohibited by this statute, and hence that the writ should issue.

The facts are undisputed. On the morning of August 7, 1970, petitioner and a male friend went to a beach for the purpose of sunbathing. Although the beach was open to the public, it was not in a residential area and was apparently used by relatively few people. ¹ Petitioner removed all his clothes, lay down on his back on a towel, and fell asleep.

Some hours later police appeared on the scene and arrested petitioner on a charge of indecent exposure. By that time several other persons were present on the beach. ² It was stipulated, however, that petitioner at no time had an erection or engaged in any activity directing attention to his genitals.

Petitioner was found guilty as charged; the imposition of sentence was suspended for three years, and he was placed on informal probation to the court on the condition he pay a fine of $100. He subsequently learned he was also required to register as a sex offender pursuant to Penal Code section 290. He appealed, but the superior court appellate department affirmed the conviction and the Court of Appeal denied his application to transfer the case for further review.

Penal Code section 314, the statute which petitioner was convicted of violating, provides in relevant part that: 'Every person who Willfully and lewdly, either '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.' (Italics added.)

As used in our penal statutes, the word 'willfully' 'implies simply a purpose or willingness to commit the act' (Pen.Code, § 7, subd. 1). There is no doubt that a person, as here, who fully disrobes in a public place for the purpose of sunbathing, 'willfully'--i.e., intentionally--exposes himself within the meaning of section 314. The issue is whether he also does so 'lewdly.'

The separate requirement that the intent of the actor be 'lewd' is an essential element of the offense declared by section 314. (In re Mikkelsen (1964) 226 Cal.App.2d 467, 472, fn. 2, 38 Cal.Rptr. 106; In re Correa (1918) 36 Cal.App. 512, 172 P. 615 (construing § 311, predecessor to § 314).) The relevant dictionary meaning of 'lewd' is sexually unchaste or licentious,' 'dissolute, lascivious,' 'suggestive of or tending to moral looseness,' 'inciting to sensual desire or imagination,' 'indecent, obscene, salacious.' (Webster's New Internat.Dict. (3d ed. 1961) p. 1301.)

The term has most often been judicially defined in cases applying the statute which makes it a crime to 'wilfully and lewdly commit any lewd or lascivious act' upon a child (Pen.Code, § 288.) In that context 'lewd' is said to mean 'dissolute,' 'wanton,' 'debauched' (People v. Loignon (1958) 160 Cal.App.2d 412, 420, 325 P.2d 541), and 'lustful, immoral, seductive or degrading' (People v. Webb (1958) 158 Cal.App.2d 537, 542, 323 P.2d 141). The statute itself declares that to commit such an act 'wilfully and lewdly' means to do so 'with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires' of the persons involved.

We are referred to no case defining 'lewdly' as used in section 314; but in the reported decisions upholding convictions of that offense against a claim of insufficient evidence, something more than mere nudity has usually been shown. Thus in People v. Succop (1967) 67 Cal.2d 785, 787, 63 Cal.Rptr. 569, 570, 433 P.2d 473, 474, the defendant stood naked outside his home and 'moved his hand over his private parts' in the presence of women and children. In People v. Merriam (1967) 66 Cal.2d 390, 392--393, 58 Cal.Rptr. 1, 3, 426 P.2d 161, 163, the defendant in one count stood masturbating in front of the female tenant whose apartment he had entered, while in another count he entered a laundromat and a female customer 'looked up and saw that he had exposed himself and was holding his penis in his hand, facing her.' In People v. Sanchez (1965) 239 Cal.App.2d 51, 53, 48 Cal.Rptr. 424, the defendant was seen to masturbate in the doorway of an apartment house, and admitted to the police that he had taken out his penis and 'played with it.' In People v. Williams (1960) 183 Cal.App.2d 689, 690, 7 Cal.Rptr. 56, the defendant exposed himself by positioning his body so that his head was inside his parked car while the lower portion of his body was outside. In People v. Evans (1956) 138 Cal.App.2d 849, 850--851, 292 P.2d 570, the defendant exposed himself while seated in his car and invited a 14-year-old girl, whom he had previously followed on a number of occasions, to look inside. And in In re Bevill (1968) 68 Cal.2d 854, 862, 69 Cal.Rptr. 599, 442 P.2d 679, we held that a defendant who masturbated in the presence of two children should have been convicted of violating section 314 rather than another statute. ³

From the foregoing definitions and cases the rule clearly emerges that a person does not expose his private parts 'lewdly' within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront. ⁴

The necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual 'activity.' (See, e.g., Manual Enterprises Inc. v. Day (1962) 370 U.S. 478, 490, 82 S.Ct. 1432, 8 L.Ed.2d 639; Sunshine Book Co. v. Summerfield (1958) 355 U.S. 372, 78 S.Ct. 365, 2 L.Ed.2d 352 (per curiam); In re Panchot (1969) 70 Cal.2d 105, 108, 73 Cal.Rptr. 689, 448 P.2d 385; People v. Noroff (1967) 67 Cal.2d 791, 794 & fn. 6, 63 Cal.Rptr. 575, 433 P.2d 479; cf. Boreta Enterprises, Inc. v. Department of Alcoholic Beverage Control (1970) 2 Cal.3d 85, 101--102, 84 Cal.Rptr. 113, 465 P.2d 1; Robins v. County of Los Angeles (1966) 248 Cal.App.2d 1, 10--11, 56 Cal.Rptr. 853.) Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not 'lewdly' expose his private parts within the meaning of section 314.

Our reading of the statute is reinforced by a consideration of its consequences. Since 1969, the fingerprints and description of every person arrested on a charge of violating section 314 must immediately be filed with the State Bureau of Criminal Identification and Investigation--i.e., before the suspect is even convicted of the offense. (Pen.Code, § 11112; see also Pen.Code, § 11107.) If he is convicted, Penal Code section 290 then compels him to register as a sex offender with the chief of police of the city in which he temporarily or permanently resides. The required registration documents include a signed informational statement, fingerprints, and photographs, all of which are promptly forwarded to the above-mentioned state bureau. Every change of address must thereafter be reported within 10 days by the registrant, and failure to comply with any of the terms of the law is punishable as a misdemeanor. Section 290 comes automatically into operation upon a conviction of violating section 314, and results in a lifelong regime of registration and reregistration unless and until a court releases the offender from disabilities of that conviction (see Pen.Code, § 1203.4).

In Barrows v. Municipal Court (1970) 1 Cal.3d 821, 83 Cal.Rptr. 819, 464 P.2d 483, we had occasion to consider the bearing of section 290 on a similar issue, i.e., whether the vagrancy statute prohibiting 'lewd or dissolute conduct in a public place' (Pen.Code, § 647, subd. (a)) was intended to apply to live theatrical performances. Conviction under that statute also triggers the operation of section 290. We explained that 'The purpose of section 290 is to assure that persons convicted of the crimes enumerated therein shall be readily available for police surveillance at all times because the Legislature deemed them likely...