THE PEOPLE, Plaintiff and Respondent, v. DUANE HOWARD JONES, Defendant and Appellant.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Duane Howard Jones appeals from the judgment entered following a jury trial which resulted in his conviction of indecent exposure (Pen.Code, § 314, subd. 1.) The trial court sentenced Jones to three years in state prison. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
a. The prosecution's case.
At approximately 5:30 p.m. on May 14, 2010, E.V. drove her daughter to soccer practice at Pelona Vista Park in Palmdale. E.V. and her daughter arrived at the park a half-hour early for the 6:00 p.m. practice, so they spent the time working on E.V.'s daughter's homework. There were only a few other cars parked in the lot, which is quite large. One car, however, caught E.V.'s attention. A blue Neon drove slowly into the lot, drove around the lot three times, then parked behind E.V.'s Nissan Pathfinder.
When E.V.'s daughter got out of the Pathfinder to walk down to the field for her practice, she stopped by the restroom to get a drink of water. At that point in time, the Neon had moved and parked “right next to the bathroom.” The car then just “drove off.” Approximately an hour after it had driven away from the restroom, the Neon pulled up and parked immediately next to the driver's side of E.V.'s Pathfinder. E.V., who was reading her book, glanced over and recognized the car as the same one she had seen earlier. During the next 20 minutes, E.V. continued to read her book. However, when she noticed that it was almost time for her daughter's practice to end, E.V. looked to her left to watch for her daughter. When E.V. glanced at the blue Neon, she saw that the driver's seat was “all the way back” and that Jones, who was in the seat, had his pants down so that she could see his thighs. E.V. then realized that he was moving his right hand up and down his exposed, erect penis. In addition, he had positioned his rear view mirror so that when E.V. looked in his direction, they would be looking each other in the face.
When, approximately five minutes later, her daughter returned to the car, E.V. told her to “get in real quick and to find a pencil.” E.V. gave to her daughter the license plate number on the blue Neon then quickly pulled out of the parking lot. After she had driven out onto the street, E.V. pulled over and called the police.
At the direction of Los Angeles County Sheriff's Deputy Frank Murillo, E.V. returned to the park. There, she told the deputy what had happened and answered his questions regarding the incident.
K.V. is E.V.'s 13-year-old daughter. On the evening of May 14, 2010, her mother had driven her to the park in their Pathfinder and, as they had arrived early for K.V.'s soccer practice, K.V. worked on her homework while she waited for practice to start. During that time, K.V. noticed a blue car “driving around the park.” When she got out of her mother's car to go to practice, she noticed that the blue car had parked in the back of the park, “straight behind [her mother's car] and ․ to the left.” The next time she saw the car, it was parked in “the second lane behind [her mother's car].”
When K.V. returned from soccer practice, the blue car was parked immediately next to the driver's side of her mother's Pathfinder. K.V. walked past the front of the blue car and, looking over the hood, saw that the front seat was “leaning back, ․ almost laying down.” Although K.V. could see Jones's face and the top of his torso, she could not see the rest of his body. K.V. got into the passenger side of her mother's car. When she looked over at the blue car she noticed that the rear view mirror was “tilted” so that one sitting in the car could look into the Pathfinder. When K.V. looked, she could see Jones's head and the top portion of his body. She could not, however, see below Jones's waist.
As K.V. got into the Pathfinder, her mother “looked kind of frustrated” and told K.V. to “hurry up and get inside.” E.V. then pulled out of the parking space and, as they drove past the rear of the blue car, E.V. had K.V. write down the car's license plate number. E.V. then drove out of the parking lot and, after they were out on the street, she called the police.
In May of 2010, Los Angeles County Sheriff's Detective Sarah Chiurazzi worked out of the Palmdale Sheriff's Station. On May 17, she interviewed Jones in the jail at the station. After informing Jones of his Miranda 1 rights, the detective asked him about the incident in the park on May 14. Jones told Chiurazzi that he recalled being at a park and that he had parked in the parking lot so that he could eat a granola bar and drink a soda. He had initially parked in a particular space, however the sun was in his eyes so he moved his car “approximately two times before he parked.” The detective continued, “[H]e said ․ that he had a bad rash on his penis, so he was scratching himself while he was eating his granola bar and drinking his soda.” Jones told the detective that “he did not expose himself[;] that he had his hand underneath his pants when he was scratching himself ․ [a]nd that he ended up exiting the vehicle and [going] into the restroom to apply some Neosporin onto his rash so that nobody would see him.” When Jones requested that the detective photograph his rash, she had “another deputy who was working in the jail go back after the interview and take photographs of [Jones's] rash.”
On May 17, 2010, Los Angeles County Sheriff's Deputy Patrick Reader took photographs of Jones's penis in the holding cell at the Palmdale Station jail. When Reader informed Jones that he was there to take a photograph of the rash on his penis, Jones responded, “ ‘Can I get it warmed up, because there are going to be a lot of people looking at this.’ “ As he made the statement, Jones had his pants down, his hand on his penis and he was beginning to masturbate. Reader told Jones that there was “no need for that,” then took five photographs. The first three photographs are of Jones's full body and the second two photographs are “closer up shots of his genitals.” In the photographs, one can see a large scab on Jones's penis. When defense counsel then asked Reader if, “[i]n fact, he had more than one scab on his penis [,]” Reader responded, “It looked all part of the same rash or injury.” Reader indicated that there were “two distinct darker areas on [Jones's] penis.” Reader stated that “the condition of [Jones's] penis in [the] photographs is the way [it was] after Mr. Jones had masturbated himself 10 to 20 times.”
The trial court informed the jury that Jones had admitted an allegation that he previously had been convicted of “indecent exposure as a misdemeanor in violation of Penal Code section 314, subdivision (1), [in] case number 5AT06236.” With regard to that case, M.T. testified that, at approximately 2:00 a.m. on August 20, 2005, there was “an incident at a neighbor's house where the police showed up[.]” M.T. went outside to speak with the police officers and there she saw Jones sitting in the back of a patrol car. M.T. had seen Jones before. Between 5:30 and 6:00 a.m. on July 21, 2005, M.T. had seen Jones in the backyard of her home on Sandcroft Avenue in Lancaster. He was outside her bedroom window. M.T. had just finished getting dressed when she looked out her window and saw Jones, standing approximately two feet away, masturbating. M.T. could see Jones's penis, which he was rubbing in “an up and down motion” with one hand. M.T. paused, stepped back from the window, then stepped forward and yelled at Jones, telling him to leave. When she “cursed at him to get out of [her] backyard[,]” Jones “buckled his pants” and ran off.
Another incident occurred on August 13, 2005. At approximately 6:30 a.m., K.M. looked out her window to see a man sitting at her patio table. He was leaning forward and holding his penis with “each hand in a cupping motion, moving up and down, as if masturbating.” K.M. ran to her husband and told him what she had seen. Her husband called the police but, by the time they arrived, the prowler was gone. One week later, at approximately 1:00 a.m. on August 20, 2005, K.M. saw the same man sitting in a chair on her patio masturbating. She ran to her husband, “quietly this time,” and they called the police. Police officers arrived approximately 45 minutes later, went out into the back yard and caught Jones as he was climbing “on [the] fence.”
b. Defense evidence.
On May 14, 2010, Los Angeles County Deputy Sheriff Frank Murillo was assigned to the Palmdale Station. He responded to E.V.'s call and met with her in the park. E.V. told the deputy how she had noticed Jones while she was sitting in her car. However, it was not until she got out of her car to watch for her daughter as she returned from practice that E.V. turned and saw Jones naked in the car next to hers. Later, when Deputy Murillo was asked if E.V. had specifically told him that she had gotten out of her car, the deputy responded, “She made it sound like she did, but she didn't tell me specifically. So I assumed that she got out of the vehicle.”
Michael Gorman is an investigator for defense counsel. Gorman contacted E.V., spoke with her on the phone, then interviewed her in person. During their conversations, E.V. told Gorman that “when she saw her daughter coming [back from soccer practice], she got out of the vehicle. And at that time, she noticed that the man in the vehicle [parked next to hers] ․ had himself exposed.” Gorman continued, “What she did is she said she didn't see what he was doing until she got out of her vehicle. And then she - at that point, she just hurried up and got her daughter into her vehicle.”
Jones testified on his own behalf. He stated that on May 14, 2010, he was driving home to Acton when he decided to stop at Pelona Vista Park. He had a soda, a granola bar and a packet of Neosporin with him. At the park, Jones parked in a couple of different spots in the lot. One was “just a turn-around” because he intended to stay there for a moment. He liked to walk the track and do pull-ups on the soccer field poles, but “there was something going on there, so [he] decided not to get out of [his] car at the time.” At one point, Jones parked next to the restroom. From there, he could look down onto the fields.
Jones decided he needed to apply the Neosporin. He pulled his car up next to E.V.'s Pathfinder “because there was shade right there.” He “parked behind it. [He] just parked right there because the shade cloaked over [him] a little bit.” Jones continued, “So I was just sitting there, and, you know, I put my hand down my pants and I started to itch for a minute. I was like, uh. And I started to look for that ointment packet I had. [¶] I dug around on the floor. I found it, ․ and I kind of squeezed some of it on my finger and I ․ lifted my pants and I kind of just unbuttoned it so I could move a little bit and I put the ointment [down the front of my pants].”
Jones admitted having been convicted in 2004 of counterfeiting and, in 2002, of the possession for sale of marijuana. In addition, he admitted his “indecent exposure misdemeanor case from 2005 which resulted in a 2006 conviction.”
Jones remembered speaking with a detective and a deputy sheriff at the station. He told them that he wished to be photographed because he “wanted [his] defense. [He] wanted them to know [that he was] not just making this up.” A couple of days later, approximately two minutes after he had taken a “freezing cold shower,” Deputy Reader showed up with a camera. Reader told Jones to “pull down [his] pants,” and Jones complied. He then asked Reader if he could “warm it up.” According to Jones, Reader “started to kind of laugh.” Jones testified that what he had said was “a joke,” and that the only time he touched his penis was when Reader told him to. Jones did not masturbate in front of the deputy.
Photographs of Jones's penis showed “two spots of injuries [with] some sort of scarring” and a red spot. Jones indicated that the photographs accurately depicted the state of his penis on that day.
At the park, on May 14, 2010, Jones never had his “pants either off or down around [his] ankles.” Neither was he masturbating while parked next to E.V.'s Nissan Pathfinder.
Jones remembered having been arrested on August 20, 2005 in the backyard of K.M.'s house. At first, Jones denied “exposing himself indecently.” However, Jones later “admitted [his] guilt and [he] apologized to everyone at the scene.” Jones could not recall whether, on that occasion, he had told a deputy that he could not have been masturbating because he had a rash in his groin area.
2. Procedural history.
Following a preliminary hearing, on June 11, 2010 an information was filed alleging that on or about May 14, 2010, Jones committed the crime of indecent exposure with a prior in violation of Penal Code section 314, subdivision 1. At proceedings held on August 12, 2010, Jones decided to reject the People's offer of sixteen months in prison in exchange for a plea of guilty or no contest and to instead go to trial. Accordingly, a panel of jurors was called and a jury was selected.
During trial, the prosecutor indicated she wished to present evidence of Jones's prior conviction of Penal Code section 314 pursuant to Evidence Code section 1108.2 The trial court considered the request, taking into account the provisions of Evidence Code section 352, and determined that, although the evidence would be prejudicial, “almost all the evidence that the People want to present is” prejudicial. The court, however, found that “its probative value [was] not substantially outweighed by prejudice, so [it allowed the evidence] under 1108․”
Later in the proceedings, defense counsel requested that a statement made by Jones to a deputy sheriff who was photographing his genitals, that he wished to “ ‘get it warmed up’ “ because “ ‘a lot of people [were] going to be looking at this,’ “ be precluded as more prejudicial than probative under Evidence Code section 352. Defense counsel argued that, if Jones made that statement, it was not “relevant to the charge of a 314.” Counsel stated, “It does not show that it's more likely, because of that statement, that he did commit the offense․ It has no relevance to the charge in this case.” The prosecutor disagreed. She asserted that she believed it was relevant in that the “defendant requested that the photograph be taken, and then made the statement [.] It would go to show that his intent was [of] a sexual nature.” After further proceedings, the trial court determined the statement was more probative than prejudicial and allowed the deputy to whom it had been stated to testify that Jones had made it.
After E.V. and her daughter, K.V., testified one of the jurors, juror number 3, asked to speak with the court. The juror indicated that he was not certain that he could be impartial. He stated, “My concern is, I am a swim coach, and we had a situation just prior to May 14 th of ․ last spring, where a gentleman at East Side Pool had inappropriately touched one of my swimmers. The deputies eventually caught him. [¶] But I remember thinking, children, Pelona Vista Park, East Side Pool, my swimmers. And I remember ․ reading about the - this particular situation in the local newspaper and drawing my own conclusions, I guess, if you will.” After further discussion between the juror, trial court and counsel, the trial court dismissed the juror and substituted one of the alternates.
During trial, Jones decided that he would admit his prior conviction for misdemeanor indecent exposure. After waiving his right to a jury or court trial, his right to confront and cross-examine the witnesses against him, his right to subpoena witnesses and present a defense and his privilege against self-incrimination, Jones admitted that on February 16, 2006 he had been convicted of misdemeanor indecent exposure in violation of Penal Code section 314, subdivision 1.
Before M.T. testified, the trial court informed the jury that Jones had admitted having been previously convicted of indecent exposure. The court then instructed the jury: “And now I'll tell you why that admission may be relevant. The People are now going to present evidence of a prior incident involving indecent exposure. The evidence that you are about to hear concerns the case that he admitted to․ You're just going to hear about what happened regarding that prior conviction. [¶] If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision also conclude that the defendant was likely to commit, and did commit, indecent exposure as charged here. [¶] If you conclude that the defendant committed the uncharged offense, that conclusion is only one factor to consider, along with all of the other evidence. It is not sufficient by itself to prove that the defendant is guilty of indecent exposure. The People must still prove the charge in this case beyond a reasonable doubt. Do not consider this evidence for any other purpose.”
Before Jones testified, the trial court ruled that the People could impeach him with two prior convictions: a 2004 conviction for counterfeiting and a 2002 conviction for possession of marijuana for sale. The trial court indicated that it had “balanced everything” and determined that the People would be allowed to state “the date of conviction, the crime that [Jones] was convicted of and the case number․”
The jury began its deliberations at 3:15 p.m. on August 18, 2010. At 3:50 p.m. that same day it reached a verdict, finding Jones guilty of “the crime of indecent exposure on or about May 14 th, 2010, in violation of Penal Code section 314(1), a felony, as charged in count 1 of the information.”
After the jury was thanked and excused, Jones indicated that he wished to be sentenced immediately. The trial court then indicated that it had read and considered the probation report, the prosecutor presented argument and defense counsel submitted on the matter. The trial court then stated: “The court is particularly concerned with [Jones's] criminal history. Mr. Jones's criminal history dates back to 1992, where he began [with] contact in the juvenile court. And his prior sustained petitions run all the way from theft-related offense[s], receiving stolen property, vandalism, petty theft, ․ possession of methamphetamine, possession of a firearm [and] trespassing. [¶] He also went to camp as a juvenile. [¶] Thereafter, in 2002, that's when he began his adult contact with the criminal justice system. Possession for [sale] of marijuana. A federal conviction for counterfeiting. Trespassing. DUI. Suspended license a couple of times. The indecent exposure prior and the current case. [¶] Based on his criminal history, based on the facts of this case, the court always starts at the mid-term. Facts in aggravation certainly do outweigh those in mitigation. The court will impose the high term. That's three years in state prison on this case.” In addition, Jones was ordered to register as a sex offender with his local police agency upon his release from custody.
The trial court ordered Jones to pay a $600 restitution fine (Pen.Code, § 1202.4, subd. (b)), a stayed $600 parole revocation restitution fine (Pen.Code, § 1202.45), a $30 court security fee (Pen.Code, § 1465.8, subd. (a)(1)), a $30 criminal court assessment fee (Gov.Code, § 70373) and a $500 “sexual habitual offender fine.” He was awarded presentence custody credit for 97 days actually served and 96 days of good time/work time, for a total of 193 days. Probation was terminated on two open misdemeanor cases and Jones was ordered to serve 180 days in county jail as to each case, the terms to run concurrent to the state prison term imposed in the present matter.
Jones filed a timely notice of appeal on August 20, 2010.
This court appointed counsel to represent Jones on appeal on October 4, 2010.
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record.
By notice filed November 30, 2010, the clerk of this court advised Jones to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On December 8, 2010 and December 16, 2010, Jones filed supplemental briefs in which he essentially argued that both his trial and appellate counsel had been ineffective. With regard to his trial counsel, Jones stated that, during argument, his counsel “started going against [him].” In addition, he was “misrepresented” because he was “never able to see a doctor.” His appellate counsel was ineffective because she failed to argue that he was prejudiced by “all the inconsistent statements and recanting and assuming, combined with all of [his] counsel's objections” and the fact that he was not examined by a doctor.
“To prevail on a claim of ineffective assistance of [trial] counsel, a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. [Citations.] Counsel's performance was deficient if the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citations.] Prejudice exists where there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. [Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93; Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Carter (2003) 30 Cal.4th 1166, 1211.)
Similar principles have been used to measure the performance of appellate counsel. (In re Harris (1993) 5 Cal.4th 813, 833; In re Robbins (1998) 18 Cal.4th 770, 810.) An indigent defendant has the right to the effective assistance of competent counsel on appeal. (In re Spears (1984) 157 Cal.App.3d 1203, 1210.) “The duties which appointed appellate counsel must fulfill to meet his or her obligations as a competent advocate include the duty to ‘argue all issues that are arguable.’ [Citations.]” (Ibid.)
With regard to Jones's trial counsel, a review of the record indicates he aggressively represented Jones. His performance was neither deficient nor the cause of prejudice. In particular, Jones's assertion he would have benefitted from having been examined by a doctor is unavailing. The jury heard evidence and saw exhibits indicating that Jones had a rash of some sort on his genitals. It nevertheless found, in less than an hour, that Jones had indecently exposed himself in violation of Penal Code section 314, subdivision 1. The evidence supports the jury's finding and it is doubtful that a doctor's testimony would have caused them to come to a different conclusion. (See People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Jones's appellate counsel was also an effective advocate. Appointed appellate counsel has a duty to “ ‘argue all issues that are arguable.’ “ (In re Spears, supra, 157 Cal.App.3d at p. 1210.) “[F]or an issue to be an arguable issue on appeal it must be reasonably arguable that there is prejudicial error justifying reversal or modification of judgment.” (Id. at p. 1211.) “[I]t is not the duty of appellate counsel to ‘contrive arguable issues.’ “ (Ibid.) Here, review of the record fails to reveal any “arguable” issues.
REVIEW ON APPEAL
We have examined the entire record and are satisfied counsel has complied fully with counsel's responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
FN1. Miranda v. Arizona (1966) 384 U.S. 436.. FN1. Miranda v. Arizona (1966) 384 U.S. 436.
FN2. Evidence Code section 1108 provides in relevant part: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”. FN2. Evidence Code section 1108 provides in relevant part: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.”