PEOPLE v. BENCE

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Court of Appeal, Fourth District, Division 2, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Roger Kendel BENCE, Defendant and Appellant.

No. E001633.

Decided: January 31, 1986

Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., John W. Carney, Jay M. Bloom and Tim J. Nader, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was charged by information with felony indecent exposure, having suffered a prior conviction for indecent exposure. (Pen.Code, § 314, subd. 1.) The information further alleged defendant had suffered a prior felony conviction of indecent exposure after having suffered yet a prior conviction of indecent exposure.

A jury found defendant guilty as charged and he admitted the prior. Defendant was sentenced to state prison for the lower base term of 16 months. He appeals from the judgment of conviction.

Facts

On October 24, 1983, Grace Hale went to the Montclair Plaza shopping center about noontime. When she returned to her truck, there was a green Vega parked nearby. She heard the sounds, “psst, psst” and looked around, but she did not see anyone. She continued walking to her car, heard the sounds again, and looked in the Vega parked near her truck. Defendant was sitting in the car with his pants unzipped, masturbating his exposed erect penis. Hale found this embarrassing.

Hale reported the incident to a security guard she saw nearby. The guard went over to the car and asked defendant to get out. When defendant did, the guard saw that defendant had his zipper down and the guard could see defendant's pubic hair.

Defendant did not testify. Defense counsel argued reasonable doubt to the jury. Defense counsel argued that defendant's conduct was not wilful lewd conduct and that the prosecution had failed to establish lewd intent because there was reasonable doubt as to where the sounds had come from.

Issues and Contentions

Defendant contends: (1) his conviction should be reversed because the trial court did not exercise its discretion under Evidence Code section 352 in ruling that defendant's prior felony conviction for indecent exposure could be used for impeachment, and because felony indecent exposure is not a crime involving moral turpitude (People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111); (2) the statutory scheme authorizing a felony conviction for a second conviction of indecent exposure under Penal Code section 314 violates constitutional guarantees of equal protection because the elevation of a second indecent exposure conviction to a felony does not apply to offenders who have previously engaged in conduct amounting to indecent exposure but who were prosecuted under Penal Code section 647, subdivision (a) (lewd or dissolute conduct in a public place); and (3) it is cruel or unusual punishment to elevate to felony status a repeat offense of indecent exposure under Penal Code section 314, when the same conduct does not constitute a felony when charged under other statutes.

The People argue: (1) defendant does not have standing to attack the trial court's ruling on admissibility of the prior conviction for impeachment and, in any event, defendant suffered no prejudice; (2) the elevation to a felony of a second violation of Penal Code section 314 does not violate equal protection; and (3) the enhanced punishment resulting from a second violation of Penal Code section 314 does not constitute cruel or unusual punishment.

Discussion

1. Use of Defendant's Prior Felony Conviction for Impeachment Purposes

Defendant contends the trial court's determination to admit his prior felony conviction for purposes of impeachment without exercising its discretion under Evidence Code section 352 was prejudicial error and requires reversal.

Although the trial court in the instant case did consider whether the admission of the prior felony conviction would compromise the due process rights of the defendant, it did not weigh the prejudicial effect of admitting the prior felony conviction against the probative value pursuant to Evidence Code section 352. Retroactively, the trial court's failure to exercise its discretion was error. (People v. Castro, supra, 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111.)

Nevertheless, the error was harmless. (See People v. Castro, supra, 38 Cal.3d 301, 318–319, 211 Cal.Rptr. 719, 696 P.2d 111.) The evidence against defendant was overwhelming. Two witnesses saw defendant. Defendant was alone and identity was not in issue. While there was some suggestion the hissing sound might have come from a truck, the jury obviously believed defendant made the sounds so the victim would look at him while he exposed himself. It is true defendant did not testify, but it is difficult to conceive what defense defendant could have presented. Realistically, all he could do was deny making the hissing sounds, but he was not convicted of making hissing sounds. As the court stated in People v. Logan (1982) 131 Cal.App.3d 575, at page 578, 182 Cal.Rptr. 543, “On these facts, search as we might, we are unable to discern any potentially favorable defense. We therefore conclude that it is not reasonably probable that a result more favorable to [defendant] would have been reached in the absence of the error.” (Ibid.; see People v. Watson (1956) 46 Cal.2d 818, 835–837, 299 P.2d 243 .) Thus, even though defendant did not testify, there was no prejudice.

Moreover, where the defendant does not testify, the court has nothing to evaluate and does not automatically abuse its discretion in denying a motion to exclude the prior without making an explicit evaluation under Evidence Code section 352. (See Luce v. United States (1984) 469 U.S. 38, 105 S.Ct. 460, 83 L.Ed.2d 443.)

Defendant makes an additional argument that it was improper under Castro to rule his prior felony conviction of indecent exposure could be used for impeachment purposes because the conviction does not involve moral turpitude. Defendant argues that, because it is only the fact of a second conviction for the offense that accounts for elevation of the misdemeanor conduct to a felony, the felony aspect of his prior conviction of indecent exposure did not involve moral turpitude.

Defendant's argument is devoid of merit. It is the act of indecent exposure that is the gravamen of the crime. Defendant concedes the conduct defined as indecent exposure is a crime involving moral turpitude. (In re Phillips (1941) 17 Cal.2d 55, 109 P.2d 344; In re Boyd (1957) 48 Cal.2d 69, 69–70, 307 P.2d 625; cf. McLaughlin v. Board of Medical Examiners (1973) 35 Cal.App.3d 1010, 1014, 111 Cal.Rptr. 353.) If it involves moral turpitude to commit the crime of indecent exposure, it certainly involves moral turpitude to commit the crime a second time after having been convicted once.

2. Equal Protection

Defendant contends the statutory scheme authorizing a felony conviction for a second conviction of indecent exposure violates equal protection principles because the elevation to a felony does not apply to offenders who may have engaged in conduct constituting indecent exposure but who were convicted under Penal Code section 647, subdivision (a).1 Defendant states in his brief, “Equal protection problems arise because offenders who commit identical acts of indecent exposure and [are] convicted under other statutes are not subject to the increased punishment provision of section 314, and those who commit multiple acts in violation of subsection 2 of Penal Code section 314 are likewise exempt.”

Defendant was not deprived of equal protection because he was charged with a violation of Penal Code section 314, subdivision 1, instead of a violation of Penal Code section 647, subdivision (a). Even when dealing with statutes which proscribe identical conduct, or which provide that particular conduct may be charged and punished as either a misdemeanor or a felony, the decision as to the crime that should be charged is within the prosecutor's discretion and is constitutional. (United States v. Batchelder (1979) 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755; People v. Wallace (1985) 169 Cal.App.3d 406, 215 Cal.Rptr. 203; see People v. Adams (1974) 43 Cal.App.3d 697, 117 Cal.Rptr. 905; United States v. Shepard (D.C.Cir.1975) 515 F.2d 1324, 1336.) Here, while indecent exposure may generically constitute lewd or dissolute conduct, it is a specific form of lewd or dissolute conduct which the Legislature could legitimately believe constituted a greater problem or deserved greater punishment if repeated than other forms of lewd or dissolute conduct.

Moreover, a violation of Penal Code section 314, subdivision 1, is conceptually distinct from a violation of Penal Code section 647, subdivision (a). “All violations of section 647, subdivision (a) must occur ‘in any public place or in any place open to the public or exposed to public view.’ A violation of section 314, subdivision 1, however, may occur ‘in any public place, or in any place where there are present other persons to be offended or annoyed thereby.’ “ (People v. Tolliver (1980) 108 Cal.App.3d 171, 173–174, 166 Cal.Rptr. 328, italics omitted.) In the instant case it is problematical whether defendant's conduct of exposing himself while inside his car would violate section 647, subdivision (a). It could be argued he was not in a place open to the public or exposed to public view. It was only after he called attention to himself from the victim that she saw him. On the other hand, defendant clearly violated section 314, subdivision 1. In view of that possibility the prosecutor acted with propriety in electing to charge defendant under section 314, subdivision 1.

With respect to defendant's argument based on the two different subdivisions of Penal Code section 314, suffice it to say subdivision 1 covers different conduct than that covered by subdivision 2. Section 314, subdivision 2, proscribes procuring indecent exposure and is not directed at the person who actually exposes himself or herself. The Legislature could reasonably decide not to apply felony enhancement provisions to one who does not actually expose himself but only procures or assists in the act. While defense counsel believes the procurer to be more morally blameworthy, the Legislature may not have seen it that way.

In support of his equal protection argument defendant relies heavily on the decision in Skinner v. Oklahoma (1942) 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655. However, that decision is fundamentally distinguishable. The legal problem in Skinner was that the State of Oklahoma had enacted statutes imposing compulsory sterilization for some but not all third felony offenders. The Supreme Court found the classification adopted by Oklahoma constitutionally inadequate to support the curtailment of the fundamental interest in human reproduction and in so doing employed the “strict scrutiny” standard to test the Oklahoma statutes.2 (316 U.S. at pp. 540–541, 62 S.Ct. at pp. 1113, 86 L.Ed. at p. 1660.)

By contrast, in respect to statutes proscribing the same or similar conduct but providing for different penalties the rule followed by the high court is found in United States v. Batchelder, supra, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755: “This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. [Citations.] Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion. [Citations.] [¶] The Court of Appeals acknowledged this ‘settled rule’ allowing prosecutorial choice. [Citation omitted.] Nevertheless, ․ the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. [Citation omitted.] In the court's view, when two statutes prohibit ‘exactly the same conduct,’ the prosecutor's ‘selection of which of two penalties to apply’ would be ‘unfettered.’ [Citation omitted.] Because such prosecutorial discretion could produce ‘unequal justice,’ the court expressed doubt that this form of legislative redundancy was constitutional. [Citation omitted.] We find this analysis factually and legally unsound. [¶] ․ [A] prosecutor's discretion to choose [what charge to file] is not ‘unfettered.’ Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints․ [However,] there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact standing alone does not give rise to a violation of the Equal Protection or Due Process Clause. [Citations.] Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. [Citations.]” (442 U.S. at pp. 123–125, 99 S.Ct. at pp. 2204–05, 60 L.Ed.2d at pp. 764–766, fn. omitted; see also United States v. Shepard, supra, 515 F.2d 1324, 1336; cf. United States v. Cohen (D.C.Cir.1984) 733 F.2d 128, 133–134.)

It is also well settled that the imposition of a more severe punishment for recidivism does not violate equal protection concepts. (People v. Jacobs (1984) 157 Cal.App.3d 797, 802, 204 Cal.Rptr. 234.) In the instant case defendant had suffered not one but two prior convictions of indecent exposure of which his second conviction was prosecuted pursuant to the provisions of section 314 as a felony. Defendant was, of course, aware that his second conviction under section 314 was a felony and presumably that a subsequent conviction of the same offense would also amount to a felony. He was therefore more culpable than and not similarly situated with offenders who had been once convicted of a violation of section 647, subdivision (a). Defendant has shown no invidious discrimination in the exercise of the prosecutor's charging discretion as between persons charged with violations of Penal Code section 314, subdivision 1, and those charged with violations of Penal Code section 647, subdivision (a). (People v. Wallace, supra, 169 Cal.App.3d 406, 411, 215 Cal.Rptr. 203; People v. Haskett (1982) 30 Cal.3d 841, 859–860, 180 Cal.Rptr. 640, 640 P.2d 776.) “Absent a persuasive showing to the contrary, we must presume that the district attorney's decisions were legitimately founded on the complex considerations necessary for the effective and efficient administration of law enforcement. (See Gregg v. Georgia (1976) 428 U.S. 153, 225, 96 S.Ct. 2909, 2949, 49 L.Ed.2d 859, 903 (conc. opn. of White, J.).)” (People v. Haskett, supra, 30 Cal.3d 841, 860, 180 Cal.Rptr. 640, 640 P.2d 776.)

3. Cruel or Unusual Punishment

Defendant next contends the felony enhancement provisions of Penal Code section 314 constitute cruel or unusual punishment. The contention is without merit.

The California Supreme Court in In re Lynch (1972) 8 Cal.3d 410, 105 Cal.Rptr. 217, 503 P.2d 921 determined that it was cruel and unusual punishment to impose a potential maximum life sentence (a one year to life indeterminate term) for repeat violations of section 314, but did not strike down the felony elevation provisions of section 314 in its analysis of what constitutes cruel or unusual punishment. (See Leaming v. Municipal Court (1974) 12 Cal.3d 813, 117 Cal.Rptr. 657, 528 P.2d 745.)

Since the decision in Leaming, two appellate courts have reviewed the present felony enhancement provisions and found they did not constitute cruel or unusual punishment. (People v. Curry (1977) 76 Cal.App.3d 181, 187, 142 Cal.Rptr. 649; People v. Truett (1981) 126 Cal.App.3d 156, 178 Cal.Rptr. 535.) The Truett court's analysis included a comparison against three measures of proportionality: “(1) the ‘proportionality’ of the punishment to the offense—is a severe punishment prescribed for a serious crime, or is it an ‘extraordinary penalty for “a crime of ordinary gravity committed under ordinary circumstances” (italics omitted; [citations] ).’ [Citation]; (2) comparison of the punishment with penalties provided for similar offenses within the same jurisdiction; and (3) comparison of the punishment with that prescribed for the same offense in other jurisdictions.” (People v. Truett, supra, 126 Cal.App.3d 156, 160, 178 Cal.Rptr. 535.) Under each of these guidelines, the Truett court found the prescribed punishment for repeat violation of section 314 not to violate the prohibition against cruel or unusual punishment. (See also People v. Beaty (1978) 84 Cal.App.3d 239, 148 Cal.Rptr. 319 .)

“ ‘Whether a particular punishment is disproportionate to the offense is, of course, a question of degree. The choice of fitting and proper penalties is not an exact science, but a legislative skill involving an appraisal of the evils to be corrected, the weighing of practical alternatives, consideration of relevant policy factors, the responsiveness to the public will; in appropriate cases, some leeway for experimentation may also be permissible. The judiciary, accordingly, should not interfere in this process unless a statute prescribes a penalty “out of all proportion to the offense” [citations], i.e., so severe in relation to the crime as to violate the prohibition against cruel or unusual punishment.’ No ground exists for concluding that the repeated offense of indecent exposure may not be classified by the Legislature as a felony. Once so classified, fixing the penalty is a matter of legislative discretion, and the discretion is not abused by selecting the least severe set of alternative felony penalties [Pen.Code, § 18] prescribed by law. There is therefore no constitutional infirmity in the legal framework utilized as the bases for appellant's sentence, and his appeal must be denied.” (People v. Truett, supra, 126 Cal.App.3d at pp. 164–165, 178 Cal.Rptr. 535.)

We perceive no cruel or unusual punishment in a 16–month prison term for a second (here a third) conviction of indecent exposure.

Disposition

The judgment is affirmed.

FOOTNOTES

1.  Penal Code section 647, subdivision (a), provides that “Every person ․ [w]ho ․ engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view” is guilty of disorderly conduct, a misdemeanor.

FN2. In so concluding the court stated in pertinent part: “[A] State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining ‘its restrictions to those classes of cases where the need is deemed to be the clearest.’ [Citations.] ․ [¶] But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” (Skinner v. Oklahoma, supra, 316 U.S. at pp. 540–541, 62 S.Ct. at p. 1113, 86 L.Ed. at p. 1660.).  FN2. In so concluding the court stated in pertinent part: “[A] State is not constrained in the exercise of its police power to ignore experience which marks a class of offenders or a family of offenses for special treatment. Nor is it prevented by the equal protection clause from confining ‘its restrictions to those classes of cases where the need is deemed to be the clearest.’ [Citations.] ․ [¶] But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.” (Skinner v. Oklahoma, supra, 316 U.S. at pp. 540–541, 62 S.Ct. at p. 1113, 86 L.Ed. at p. 1660.)

KAUFMAN, Associate Justice.

MORRIS, P.J., and McDANIEL, J., concur.

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