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District Court of Appeal, Third District, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Russell Glenn MERRIAM, Jr., Defendant and Appellant.

Cr. 4063.

Decided: September 27, 1966

Joseph DeCristoforo, Sacramento, court appointed, for appellant. Thomas C. Lynch, Atty.Gen., by Doris Maier, Asst. Atty. Gen., and Stephen Cooper, Deputy Atty. Gen., Sacramento, for respondent.

Defendant Russell Glenn Merriam, Jr., appeals from a judgment of conviction on two counts of indecent exposure after a trial by jury.   Defendant admitted a prior conviction as to each count.

After an examination of the record, the facts in each instance can be summarized as follows:

(1) Mrs. Alyce Wolf

On March 12, 1965, at about 11:00 a.m., Mrs. Alyce Wolf, who lives alone, was sitting in the living room of her basement apartment at 17281/212 G Street, Sacramento.   Upon feeling a draft of cool air, she realized that the door between the kitchen and the back storeroom, which was normally kept closed, was open.   She left the living room and went to the storeroom, deciding to take a look at the clothes which she kept there.   This storeroom led to a second storeroom which in turn led to the garage and also to the outside.   The doorway between the first and second storeroom, having no door, was normally kept blocked by a refrigerator.

Upon entering the first storeroom, Mrs. Wolf noticed that the refrigerator has been moved about a foot from its usual position.   She looked behind the refrigerator and saw on the table in the second storeroom men's clothing which, to her knowledge, had never been there before.   She then glanced at the area in the first storeroom where she kept her clothes and clothing bags hanging and noticed a pair of bar feet behind these clothes.

Mrs. Wolf then walked over to the clothes rack and pulled the clothes aside to see who was behind them.   She saw defendant standing there naked and masturbating.   She raised her voice at him, asked who he was and how he came in, and told him to get his clothes on and leave.   She then grabbed his arm and tried to pull him from the corner.   He resisted, trying to pull the clothing in front of him again.   This struggle lasted about two minutes during which his masturbation continued, Mrs. Wolf observing his emission.   He stated he wished to be left alone for a few minutes after which he would leave.

Mrs. Wolf then left the storeroom and went to seek help from one of the tenants to whom she rented the two upper floors of the house.   Upon finding no one at home. she returned to her apartment and called the police.   She then waited out in front of the house for nearly a half hour before police arrived.   During the time she waited in front of the house, she looked through a broken window pane in her garage door and saw defendant crouched in the corner just inside the garage door tying his shoes.   She spoke to him then, telling him again to get out.   She saw defendant's face again at that time as he looked up at her when she spoke.   Thereafter, defendant left by the back door.   Mrs. Wolf noticed that there was no more clothing left on the table in the second storeroom after he had left.

The police arrived after defendant had left, and Mrs. Wolf showed them the storeroom area where she had first seen him.   About a day later, Mrs. Wolf noticed a substance on one of the clothing bags in that area, which was later identified by chemical analysis as semen stains.

Mrs. Wolf again had occasion to identify defendant both when he came to her apartment unaccompanied about a day after the offense an again two or three days later when he was brought to her apartment by police for identification.

(2) Mrs. Esperanza Walker

On May 3, 1965, Mrs. Esperanza Walker was folding her clothes in the laundromat at 2314 J Street, Sacramento, at about 12:30 p.m.   About that time an elderly lady left by the back door, leaving Mrs. Walker alone in the laundromat except for the owner's son who was at the front window painting.

Just as the lady was leaving, defendant entered by the back door.   Mrs. Walker saw defendant as he was passing the tables near the back door and she continued folding her clothes.   At that time, she had a good look at him.   She then looked up a second time and saw defendant standing just inside the back doorway about 15 feet from her.   He was facing her with his privates exposed and holding his penis in his hand.   As she looked at him for about five seconds, he did not move.   She was not certain what to do.   She continued folding her clothes and could still see him out of the corner of her eye.   A few seconds later he moved out of her sight, and she then went to the front of the laundromat to the owner's son, Mr. Glen Howard.

Mrs. Walker stayed in the building as Glen Howard then left to look for defendant.   Upon arriving in the back parking area, he saw defendant backing a car hurriedly out of a parking space.   Defendant backed into a garage door, damaging it slightly.   Mr. Howard informed him of the name and address of the owner of the garage, and he then left to look for the owner.

Mr. Howard then returned to the laundromat to get his father, Mr. Charles Howard, the owner of the laundromat, who was in the boiler room.   Both men returned to the parking lot.   As they arrived there, defendant was also returning to the parking lot, and the younger Howard informed him that a woman in the laundromat had a complaint against him.   Defendant answered, “Well, I'd like to hear the complaint.”   He then returned with Howards to the laundromat.   Mrs. Walker recognized defendant as he entered.

The younger Howard then called the police, who arrived about ten minutes later.   While in the parking lot, he had noted the license number of the car defendant had driven, which was later established as being registered in defendant's name.

A conversation ensued among defendant, Mrs. Walker and the Howards.   When the police arrived, Mrs. Walker identified defendant as the perpetrator of the offense.

Defendant's first contention is that the trial court erroneously refused a proposed cautionary instruction to the effect that a charge of this character is easily made and difficult to disprove, even if the defendant is innocent, that from the nature of the case the complaining witness and the defendant usually are the only witnesses, and therefore the jury should examine the testimony of the complaining witness with caution.

 Although the cautionary instruction is frequently said to be required in prosecutions for sex offenses, existing California case law does not indicate its applicability in indecent exposure prosecutions.   On the assumption that the instruction might be mandatory in an indecent exposure trial where a prosecutrix and the defendant are the only witnesses, nevertheless the instruction was not required here where defendant was on trial for separate charges brought at the behest of two complaining witnesses unacquainted with each other, committed under different circumstances at different times.

Even assuming arguendo that the trial court may have erred in refusing to give the cautionary instruction , it does not follow that the failure of the court to do so resulted in prejudice in this case.  “The circumstances of each case determine whether failure to give the instruction was prejudicial error, and reversal should not be ordered where it is improbable that a different verdict would have been returned had the cautionary instruction been given.”   (People v. House, 157 Cal.App.2d 151, 157, 320 P.2d 542, 546;  People v. Nye, 38 Cal.2d 34, 40, 237 P.2d 1.)

 In the instant case the testimony of Mrs. Wolf was corroborated by the notation in the police log of her call at 11:07 a.m., on the day of the offense and by the presence of semen stains on the clothes taken from her back storeroom.   Mrs. Walker's testimony was supported by Mr. Howard's testimony on the defendant's behavior shortly after the commission of the act.   In neither case was the identity of the defendant in doubt, and both complaining witnesses had ample time to make an identification.   Moreover, there is no indication of improbability or inconsistency in the complaining witnesses' testimony.   Under the circumstances, it cannot be said that in the absence of the error it is probable that a different verdict would have been reached.  (People v. Nye, supra, 38 Cal.2d at p. 40, 237 P.2d 1.)   A careful examination of the entire record, in accordance with Article VI, section 4 1/212, of the California Constitution leads us to the conclusion that it is improbable that the jury would have rejected the testimony of the complaining witnesses, along with the corroborating evidence, had the cautionary instruction been given.   Therefore, there has been no miscarriage of justice requiring reversal of the judgment.

 Defendant for the first time contends that his prior conviction was invalid, basing this contention solely on the ground that the record before us is silent as to whether he was represented by counsel at his prior trial or made an intelligent waiver thereof.   The admission of the prior conviction raised the present offense from misdemeanor to felony status.  (Pen.Code, § 314.)

This contention is without merit.   No allegation is made by him that the prior conviction was improperly charged.   He does not allege that at the time of his prior conviction he was denied his constitutional right to legal counsel.   It is elementary that an appellate court on an appeal from a conviction cannot review matters outside the record.  (People v. Vasquez, 224 Cal.App.2d 206, 208, 36 Cal.Rptr. 337.)

The judgment convicting the defendant on two counts of indecent exposure is therefore affirmed.

REGAN, Justice.

PIERCE, P.J., and FRIEDMAN, J., concur.

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