PEOPLE v. McCONVILLE (1981)

NATURE OF APPEAL :

Appellant was convicted in municipal court of the crime of lewd conduct in violation of Penal Code section 647, subdivision (a).   He appealed to the appellate department of the superior court, which reversed with instructions to the trial court to acquit appellant.   We ordered the matter transferred to this court pursuant to Rule 62(a), California Rules of Court.

FACTS :

There is no dispute as to the facts.   Appellant masturbated openly in a public restroom of a department store knowingly in the presence and full view of another person.   That other person was an undercover police officer in plain clothes.

APPELLANT'S CONTENTIONS :

 Citing language in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 158 Cal.Rptr. 330, 599 P.2d 636, appellant contends primarily that his act in masturbating in a public place was not criminal because there is no evidence that the officer, the only other person present during the conduct, was offended.   Appellant's additional contention of discriminatory enforcement was not properly raised in the trial court.   The appellate department correctly declined to consider it (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44), and we do not consider it.

HOLDING :

We reject appellant's contention and we affirm the judgment of conviction.   Specifically, we hold that a person who openly engages in lewd conduct in a public restroom may be convicted under Penal Code section 647, subdivision (a) where it is likely that members of the public may enter the restroom even though the only witness in the restroom at the time of the conduct acts as if he is not offended.

DISCUSSION :

 Penal Code section 647, subdivision (a) declares that a person is guilty of disorderly conduct, a misdemeanor, “[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or any place open to the public or exposed to public view.”  Pryor v. Municipal Court, supra, 25 Cal.3d 238, 244, 158 Cal.Rptr. 330, 599 P.2d 636, construed that section “to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves the touching of the genitals, buttocks, or female breast, for purpose of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct.”

Focusing upon the words “the presence of persons who may be offended by the conduct” in the foregoing quotation from Pryor, appellant contends that the evidence is insufficient to establish this element of the offense and thus he committed no crime.   This argument is unavailing to appellant for two reasons, either of which is sufficient to sustain his conviction:  (1) The officer was in legal contemplation an offended person and (2) the above quoted definition in Pryor is one description, but not the exclusive description, of the circumstances or manner in which the crime may be committed.

Briefly detailed, the undisputed facts are as follows:

Officer Carlisle, in plain clothes, entered a May Company department store restroom open to the public.   He proceeded directly to a urinal.   Defendant was the sole occupant of the restroom at this time.   At the urinal, Carlisle unzipped his pants and stood there for at least five minutes with his penis out but not touching it except during a 45–second trip to a nearby wash basin.   On Carlisle's entry, defendant left his urinal, went to a wash basin, paused in front of a doorless toilet stall, and returned to the same urinal from where he had come.   When both men returned to their respective urinals (four apart along the same wall) Carlisle observed defendant masturbate for five minutes.   During this time no conversation or gestures were made by either man.   However, they glanced at each other occasionally.   At the end of this five minutes defendant asked the officer to come over to his urinal;  Carlisle asked what defendant had in mind;  defendant said what did Carlisle have in mind;  Carlisle said, “Nothing,” and that ended the conversation in the restroom.

A third man entered and went to a urinal, apparently observing nothing amiss.   Defendant returned to a wash basin and motioned to Carlisle with his head that he was going to leave.   Carlisle asked defendant to meet him in a lower level of the store;  both left;  and Carlisle signaled his partner officers to arrest defendant.   When both men were in the restroom they observed each other for from 5 to 15 minutes.

Appellant and the appellate department noted the absence of testimony by the officer that he was offended, and particularly noting the officer's conduct of seeming indifference to appellant's conduct, the appellate department stated:  “We agree with the defendant that the officer's testimony that he was or was not offended would not determine the issue, as the focus of our inquiry must be on the reasonable person standing in defendant's shoes, not the subjective feelings of the officer.”   The appellate opinion continues:  “But our record is barren of any evidence to show that the defendant was giving or could be giving offense to the one person present in the restroom, Carlisle.   The defendant was in the presence of a person who was standing at the urinal for upwards of eight minutes, not urinating, not talking, glancing from time to time at defendant and giving no indication whatsoever that he was or might be offended by defendant's masturbation.   Had Carlisle worn a sign around his neck saying, ‘It is okay to perform lewd acts in my presence,’ it could hardly be said that defendant could not, under the circumstances present here, have taken such a sign at face value.   Absent any other evidence to show offense or annoyance, Carlisle's conduct was tantamount to wearing such a sign.  (See People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 410, fn. 4, 166 Cal.Rptr. 519.)”

This analysis is unacceptable.   It overlooks the fact that Carlisle was a policeman looking for lewd offenders and only pretending not to be offended.   Officer Carlisle in fact ordered appellant's arrest.   He and his fellow officers were on the lookout for homosexual or other lewd conduct or the solicitation thereof in public places.   Public restrooms or toilets are not intended as places to perform unlawful sexual acts.   Provided no actual entrapment occurs by affirmative or express encouragement, officers must pretend indifference in order to apprehend those who misuse public restrooms.   The fact that they pretended indifference to or interest in the conduct here is not evidence that they do not dislike it.

We reject appellant's dual argument that for his conduct to be unlawful (1) appellant must know that the other person present is offended, or (2) there should be some expression or conduct on the part of the other person as would lead a reasonable man in appellant's position to know that his conduct is offensive to the other.   The interpretation and definition of the statute in Pryor requires knowledge of the presence of another who may be offended thereby, not knowledge that the other is in fact offended.   The very existence of the law prohibiting lewd conduct in public presumes that others are offended when the acts are done publicly.   Why else prohibit the conduct in public?   The act is prohibited whether the other member of the public complains or not.   In a public place a stranger's presence itself imports a presumption that he would be offended by such lewd conduct.   It is to save such others the added annoyance of and difficulty in protesting that the law exists.   A person does not have a right to masturbate openly in a public toilet in front of a total stranger and assume that unless the other person expressly objects or otherwise indicates that he is offended thereby that the defendant is not offending.   The law may and does presume such conduct offensive in such a place.   Appellant's arguments to the contrary are preposterous and at odds with reasonably understandable and common-sense standards of decency and respect for the sensitivities of others.

Equally as important as the actual immediate presence of a person who may be offended is the public nature with free access of the public restroom involved in this case.

We accept the observation in Pryor v. Municipal Court, supra, 25 Cal.3d 238, 256, 158 Cal.Rptr. 330, 599 P.2d 636, that the state has little interest in prohibiting conduct if there are no persons present who may be offended.   On the other hand, the state does have an interest in protecting the reasonable sensitivities of others who are entitled to use and therefore are likely to enter public restrooms and public toilets.   Accordingly, appellant's conduct is prohibited in an open public toilet where there are no totally enclosed toilets or urinals, as in the case at bench, because in such a place there is the likelihood or possibility that other persons may come into the toilet and be involuntarily subjected to an offensive scene.   Significantly, at bench a third person did enter the restroom.   Although the third person did not see anything amiss and apparently appellant's conduct took place before his entry, the third person's presence is significant because it demonstrates the fact that the place involved here was a public place where total privacy was not available or reasonably to be expected.   That third person's entry illustrates the point here as well as in Pryor, supra, when it referred with approval to language in In re Steinke (1969) 2 Cal.App.3d 569, 82 Cal.Rptr. 789, that the possibility or likelihood of the presence of others is an indicia of the meaning of “in public.”

In Pryor, supra, the court seeking to give constitutional validity and universally understandable meaning to the statute was primarily concerned with describing the particular physical acts which constitute lewd conduct.   A secondary aspect, equally important but not the immediate focal point of the court's concern, was that the act had to occur in some sort of public place.   In defining such public place the court described it not only as a place where persons who may be offended are present, but also defined it as a place where a person who may be offended is likely to enter.   Therefore, Pryor is not to be read as requiring the immediate actual presence of an offended person in every case.   The nature or physical characteristics of the place where the event occurs may also serve in determining the public versus private aspect of the issue.

In formulating the definition, the court recognized that the statute “serves the primary purpose of protecting onlookers who might be offended by the proscribed conduct.”  (Pryor v. Municipal Court, supra, 25 Cal.3d 238, 255, 158 Cal.Rptr. 330, 599 P.2d 636.)   This by definition includes persons who are likely to enter and see the offensive conduct.   The court made it clear that sexual conduct could not be performed where members of the public were likely to view it and be offended.   Concerning the language relative to this in Steinke, supra, the court said:

“[I]n In re Steinke, supra, 2 Cal.App.3d 569, 576 [82 Cal.Rptr. 789], the court stated that ‘the gist of the offense proscribed in [Penal Code section 647] subdivision (a) ․ is the presence or possibility of the presence of some one to be offended by the conduct.’   We agree;  even if conduct occurs in a location that is technically a public place, a place open to the public, or one exposed to public view, the state has little interest in prohibiting that conduct if there are no persons present who may be offended.”  (Id. 25 Cal.3d at p. 256, 158 Cal.Rptr. 330, 599 P.2d 636, emphasis added.)

The Court further explained that places in which there is no likelihood that such conduct will be exposed to public view must be excluded from the reach of the statute even though such places may technically be “open to the public.”   A “fully enclosed toilet booth” was one such place.  (Id. at p. 256, fn. 12, 158 Cal.Rptr. 330, 599 P.2d 636.)   There is no indication, however, that the court intended its language to be used to condone such conduct when performed at a urinal which is not enclosed in any way.

The conduct here occurred in a public restroom freely open to anyone seeking to use the toilet.   As indicated, there were no enclosed stalls or urinals.   There was no, nor could there reasonably be any, expectation of privacy in order to engage in sexual activity—alone or with another.

The judgment of conviction is affirmed.

BEACH, Associate Justice.

FLEMING, Acting P. J., and COMPTON, J., concur. Hearing denied; BIRD, C.J., and MOSK, J., dissenting.