California v Harris


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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,
Plaintiff and Respondent,

VINCENT LEROY HARRIS,
Defendant and Appellant.

F037839
(Super. Ct. No. SC081796A)

O P I N I O N

APPEAL from a judgment of the Superior Court of Kern County. James M. Stuart, Judge.

Shama H. Mesiwala, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Robert P. Whitlock and William Kim, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant, Vincent Leroy Harris, was convicted by a jury of three counts of felony indecent exposure. 1 (Pen. Code, 2 314.) In a bifurcated proceeding, the trial court found true allegations that appellant had suffered nine prior strikes within the meaning of the three strikes law ( 667, subds. (c)-(j); 1170.12, subds. (a)-(e)). Appellant was subsequently sentenced to a term of 75 years to life.

On appeal, appellant contends that: (1) he was denied his right to present a defense; (2) the trial court erred in instructing the jury; (3) the cumulative effect of the errors prejudiced his case; (4) the true finding for one of his prior strikes should be reversed for lack of sufficient evidence; and (5) his sentence constitutes cruel and unusual punishment.

We find there was instructional error; however, we find it was harmless and affirm the judgment.

FACTS 3

Appellant was an inmate at the Tehachapi Prison at the time of the offenses. Appellants cell was locked and was located in an area where inmates could not have visitors or come and go freely. On the morning of February 25, 2000, Tehachapi Prison Correctional Officer Lisa Graves was serving inmates their meals through food port doors in the cells. As she approached appellants cell, she looked in his cell and he smiled at her. Graves began pouring coffee into a cup at the door when she saw the tip of appellants penis. She removed the cup and observed appellant masturbating. Graves told appellant never to engage in that behavior in front of her again, and instructed appellant to turn around and cover up. Graves explained that her training involved how to deal with inmates engaging in this type of behavior. In order to prevent the situation from going any further, she was taught to give inmates immediate warnings.

On July 21, 2000, Correctional Officer Sally Adamson was conducting a count of inmates in their cells. She testified that the counts were done at the same time every day. When she passed appellants cell, she looked in and did not observe any inappropriate behaviors from appellant. She continued past appellants cell, but returned when appellant called her name. When she returned, appellant was standing in front of his window masturbating and said I have this problem. He made no attempt to stop when she approached. Adamson was trained to speak with an inmate who was engaged in such behavior, but she simply told him she was going to file a charge against him for his conduct.

On August 10, 2000, Correctional Officer Shermeka Phair was conducting a count of the inmates in their cells. She testified that her count is done at the same time every day. When she looked into appellants cell, she saw appellant standing in front of his cell window masturbating. She made eye contact with appellant, but he made no effort to discontinue his behavior.

DISCUSSION

I. Appellant was not denied his right to present a defense.

Appellant contends that he was denied his right to present a defense when the trial court excluded evidence relating to the frequency with which the correctional officers viewed behavior similar to appellants. During trial, appellants counsel repeatedly attempted to elicit testimony regarding how often the correctional officers encountered other inmates engaging in the same behavior as that charged against appellant. The trial court sustained relevance objections to these questions. Appellant argues the trial courts rulings were in error because the evidence was relevant to his defense. We disagree.

Appellants argument is premised upon the notion that section 314 requires the jury to find that the person present during his lewd act could be offended or annoyed by his conduct. He claims that pursuant to the statute, he was entitled to attempt to demonstrate to the jury that the correctional officers were not persons to be offended or annoyed by appellants conduct because their training and experience has immunized them from such offense. We disagree with appellants basic premise.

Section 314, subdivision 1, makes it a crime for a person to willfully and lewdly expose 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. (Italics added.) In construing a statute, the court looks to the intent of the Legislature to effectuate the purpose of the law. (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) We begin by looking the language of the statue, giving the words their ordinary meaning. (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 777.) If possible, every word and phrase should be given meaning. (Dyna-Med. Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) The words of the statue are to be construed in context, keeping in mind the statutory purpose. (Ibid.) If uncertainty exists, we give consideration to the consequences that follow from a particular interpretation, avoiding absurd results. (Id. at p. 1387.)

The indecent exposure statute serves the purpose of protecting onlookers from conduct that they might find offensive. (Pryor v. Municipal Court (1979) 25 Cal.3d 238, 255.) The statute is aimed at keeping people from engaging in offensive conduct in places where others are present who may be offended by the conduct. This is evident from the alternative phrasing of the statute. By prohibiting the conduct in any public place or any place where there are present other persons to be offended or annoyed, the Legislature clearly intended to prevent lewd conduct in areas where others were present who could be offended or annoyed.

We note there is nothing in the statute requiring that the victims actually be offended or annoyed. This is significant because it establishes that it is unimportant whether the person who viewed the conduct was in fact offended or annoyed by it. Rather, the statutes focus is on the place of the conduct, prohibiting conduct in a public place or a place where there are persons present to be offended or annoyed. Keeping the purpose of the statute in mind and giving the words their ordinary meaning, it appears that the phrase present to be offended or annoyed refers to a persons awareness of the defendants behavior such that the person could be offended by the behavior. We believe that this interpretation forwards the purpose of the statute, without leading to absurd results. If we were to agree with appellants interpretation of the statute and find that the present to be offended or annoyed language concerned the persons ability to be offended or annoyed by certain conduct, the focus of the statute would shift from the place where the conduct occurred to the peculiar sensitivities of the victim. Under appellants reading of the statute, a defendant could repeatedly expose himself to the same person and could argue his actions were immunized because the victim could not be offended or annoyed by the behavior due to the fact that he/she was repeatedly exposed to it. We think such an interpretation of the statute would hinder the statutes purpose, and we thus reject it

Since section 314 does not allow an inquiry into the victims state of mind to determine whether they can be or are in fact offended or annoyed by the defendants conduct, appellants attempt to elicit testimony regarding how often the officers viewed similar behavior in the prison was irrelevant to any issue in the trial. Thus, appellant was not denied his right to present a defense because the testimony he sought to elicit did not contribute to a defense to the charge.

II. Any error in instructing the jury was harmless.

Appellant makes two instructional claims on appeal. He first contends that the standard jury instruction defining the crime of indecent exposure improperly stated the elements of the offense. Appellant next argues that the trial court erred in giving a special instruction to the jury stating that a prison is a place where there are persons present to be offended or annoyed. We will address each of appellants claims in turn.

A. CALJIC No. 10.38

After trial, the court instructed the jury pursuant to CALJIC No. 10.38 regarding the definition and elements of indecent exposure. That instruction provides in relevant part:

In order to prove this crime, each of the following elements must be proved:

1. A person intentionally exposed [his] [her] [person] [private parts] [in a public place] [or] [in any place where there were present other persons to be offended or annoyed];

2. That person did so with the specific intent to direct public attention to [his] [her] [person] [genitals] for the purpose of [his] [her] own sexual arousal or gratification, or that of another, or to annoy or offend others .

Appellant argues that the instruction misstates the law regarding the specific intent required to demonstrate indecent exposure. He claims that in order for a conviction for indecent exposure to stand, the defendant must act with the purpose of his own sexual gratification or that of another or to sexually annoy or sexually offend another. He argues that this concept was not relayed in the instruction, and thus, the jury was not instructed on all of the elements of the offense. In assessing appellants claim, we must determine whether there is a reasonable likelihood the jury interpreted the instruction in the manner appellant asserts. (People v. Barnett (1998) 17 Cal.4th 1044, 1161.)

A violation of section 314 requires a lewd intent. (§314.) In In re Smith (1972) 7 Cal.3d 362, 366, the California Supreme Court held that conduct is not lewd within the meaning of section 314 unless the conduct is sexually motivated. In that case, the defendant was convicted of indecent exposure when he was found sunbathing in the nude on an isolated beach. The court vacated the defendants conviction, finding that the statute required a finding that the defendant must act for the purpose of sexual arousal, gratification, or affront. (Ibid., fn. omitted.) Subsequently, in In re Dallas W. (2000) 85 Cal.App.4th 937, 939-940, the Second District held a conviction for indecent exposure could not stand where the trier of fact, in that case the court, found that the perpetrator acted only with the intent to annoy or affront others and not with any sexual intent. The court reviewed the Smith decision and explained that the word sexual modifies arousal, gratification, and affront, not just arousal and gratification. [Citation.] Affront must be read as sexual affront. (Id. at p. 939; People v. Archer (2002) 98 Cal.App.4th 402, 405.) The court found that the jury instruction in that case, which required that the defendant act for the purpose of ones own sexual arousal or gratification, or that of another, or to affront others, could be an erroneous statement of law if it was read so as not to require a sexual affront. (In re Dallas W., supra, 85 Cal.App.4th at p. 939.)

In this case, there is a reasonable probability the jury interpreted the instruction in the manner appellant suggests. Given the wording of the instruction, the jury could have read the word sexual to modify the terms arousal, gratification, annoy, and offend, but it could have also interpreted the term sexual to only modify the terms arousal and gratification. (In re Dallas W., supra, 85 Cal.App.4th at p. 939.) Under the latter interpretation the jury would not be required to find that appellants intent to annoy or offend was sexually motivated, which is an essential element of the offense. (In re Smith, supra, 7 Cal.App.3d 366.) Closing argument did not assist the jury in coming to the proper interpretation, as the prosecutor argued the jury need only find appellant acted with the intent to annoy or offend the officers. Because there is a reasonable probability the jury misinterpreted the instruction, we find the instruction was in error. However, we find the error harmless beyond a reasonable doubt.

Pursuant to Chapman v. California (1967) 386 U.S. 18, federal constitutional error is not prejudicial were the court can determine, beyond a reasonable doubt, that the error did not contribute to the jurys verdict. In the present case, appellants conduct consisted of masturbating in front of his cell widow as the correctional officers walked by. It is beyond dispute that appellants action was sexual in nature. 4 A jury could not find appellants actions offensive or annoying without also finding them sexually motivated. Thus, we find the error harmless beyond a reasonable doubt.

B. The Trial Courts Special Instruction

Appellant contends the trial court erred when it removed an element of the offense from the jurys consideration. The trial court instructed the jury, pursuant CALJIC No. 10.38, that the offense of indecent exposure consisted of two elements: (1) that a person intentionally exposed his private parts in a public place or in any place where there were present other persons to be offended or annoyed; and (2) that the person did so with the specific intent to direct public attention to his person or genitals for the purpose of his own sexual arousal or gratification or of that of another or to annoy or offend others. (CALJIC No. 10.38; People v. Swearington (1977) 71 Cal.App.3d 935, 943.) Immediately after giving this instruction, the trial court instructed the jury that "[ ¶ ] A California State Penal Institution is a place where there are other persons present to be offended or annoyed." Appellant contends the trial courts instruction removed an element from the jury violating his due process right requiring the prosecution to prove to the jury, beyond a reasonable doubt, every element of the offense. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.) Respondent argues that whether a prison is a place where there are present other persons to be offended or annoyed is a question of law for the court to decide. We disagree with respondent and find the element presents a question of fact for the jury to decide.

In this case, whether a prison is a place where there are other persons present to be offended or annoyed presented a question of fact for the jury to decide. (See In re Anders (1979) 25 Cal.3d 414, 416-417 [question of whether defendant knew or should have known of the presence of persons who may be offended by his conduct in determining whether act constituted lewd and dissolute conduct was a question of fact]; People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, 409-410 [knowledge of possible offense to third persons is a question of fact and cannot be answered solely by reference to the location in which the conduct occurred].) By instructing the jury that a California State Penal Institution is a place where there are other persons present to be offended or annoyed, the court told the jury that fact was established and effectively removed this element of the crime from the jurys consideration.

Jury instructions relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violate the defendants due process rights under the state and federal Constitutions. (People v. Flood (1998) 18 Cal.4th 470, 479-480.) No fact, not even an undisputed fact, can be determined by the judge. Due process protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. (People v. Figueroa (1986) 41 Cal.3d 714, 724-725; People v. Flood, supra, 18 Cal.4th at p. 491; United States v. Gaudin (1995) 515 U.S. 506, 510-511, 522-523.)

The trial court's instruction that a prison is a place where there are persons present to be offended of [sic] annoyed effectively prevented the jury from deciding whether the prosecution proved this element of indecent exposure. In essence, the trial court directed a partial verdict for the prosecution on that aspect of the crime. The instruction thus violated appellants due process rights under the federal and state Constitutions. However, on the record, the error was harmless under the standards set forth in People v. Flood, supra, 18 Cal.4th 470.

In Flood the defendant was found guilty of the offense of evading a vehicle operated by a pursuing peace officer resulting in serious bodily injury (Veh. Code, 2800.3). In its instruction, the trial court did not inform the jurors that they must determine whether the persons in the pursuing vehicle were peace officers. Instead, the court erroneously told the jury that the persons were peace officers, thus effectively removing that element of the crime from the jurys consideration. (People v. Flood, supra, 18 Cal.4th at p. 475.) The California Supreme Court determined that the instructional error was subject to a prejudice assessment under both the California and United States Constitutions. The court then found the error was harmless under California constitutional law principles (Cal. Const., art. VI, 13; People v. Watson (1956) 46 Cal.2d 818, 836), and under the federal harmless error analysis (Chapman v. California, supra, 386 U.S. at p. 24). (People v. Flood, supra, at pp. 491, 507.)

According to Flood, the error committed by the trial court in that case, directing a finding on a single element of the crime, is one of a number of instructional errors which are generally not structural defects in the trial mechanism and thus do not defy harmless error review or automatically require reversal under the federal Constitution. (People v. Flood, supra, 18 Cal.4th at pp. 502-503.) Flood controls the prejudice analysis in this case and compels the conclusion that the error here was harmless beyond a reasonable doubt.

Appellant contends that the error in this case cannot be considered harmless because the trial court removed a contested element from the jurys consideration when it gave the special instruction. Appellants entire argument on appeal is based upon the premise that section 314 requires the jury to find that the person present during his lewd act could be offended or annoyed by his conduct. He contends that absent the trial courts instruction, the jury could have found that the correctional officers were persons who could not be offended or annoyed by his conduct simply because they often see similar behavior while working in a prison atmosphere. Were we to agree with appellants interpretation of the statute, we may find his argument has merit. However, as we have already explained, appellants interpretation of the statute is erroneous. The statute only requires that the conduct occur in a place where other persons are sufficiently aware of the defendants act so they could be offended or annoyed by it.

Under this interpretation of the statute, we find that the trial courts error in instructing the jury that a California State Penal Institution is a place where there are other persons present to be offended or annoyed was harmless beyond a reasonable doubt. Like Flood, appellant effectively conceded this element at trial. As we have explained, the statutes requirement that the conduct take place in any place where there are present other persons to be offended or annoyed thereby requires only that the person be aware of the defendants behavior, such that the person could be offended by it. In the present case, it was uncontested that the correctional officers observed appellants conduct. In fact, the officers were the only ones to provide any evidence regarding appellants actions. By finding appellant guilty on the three counts, the jury necessarily found the officers were aware of the conduct and thus could be offended by it. Consequently, there is no reasonable basis for finding the instructional error affected the jurys verdict.

III. Cumulative errors did not prejudice appellant.

Appellant contends that the combined trial errors prejudiced his case. (In re Avena (1996) 12 Cal.4th 694, 772, fn. 32.) We disagree. As we have explained, two instructional errors were present in appellants case. However, we found each individual error harmless. Viewing them in combination, we remain of the opinion that the errors were harmless.

Each of the errors present in the case was separate and did not act to compound the other. Regarding the elements of the offense, the jury was correctly instructed as to the elements; however, the instruction could be understood to require only offense or annoyance instead of sexual offense or sexual annoyance. However, appellants actions were unquestionably sexual in nature, and previously herein we concluded the error harmless beyond a reasonable doubt. As to the trial courts instruction stating that a prison is a place where there were persons present to be offended or annoyed, we explained that the jury necessarily determined that the correctional officers were present and aware of appellants behavior when they returned the guilty verdicts. Therefore, this error could not contribute to any other error. Consequently, we do not find any cumulative prejudice.

IV. Appellant was properly sentenced to a three strikes term.

In the information, the prosecution alleged appellant had suffered nine prior convictions within the meaning of the three strikes law. ( 667, subds. (c)-(j); 1170.12 subds. (a)-(e).) Five of those prior offenses arose from convictions in May 1988 where appellant was convicted of two counts of first degree robbery, two counts of second degree robbery, and one count of assault with a firearm. Regarding those priors, the information alleged appellant had suffered one conviction for first degree robbery, three convictions for second degree robbery, and one conviction for assault with a firearm. The trial court found all of the prior conviction allegations true. Appellant argues that one of his second degree robbery strike priors must be stricken because the prosecutor failed to prove that appellant suffered three prior second degree robbery convictions. We disagree.

Regarding appellants 1988 convictions, the trial court found appellant had suffered a total of four robbery convictions. The abstract of judgment relating to those convictions provided proof that appellant suffered two first degree and two second degree robbery convictions. Although the information alleged only one first degree and three second degree robbery convictions, the information clearly referred to these four robbery convictions. The information recited that the convictions were obtained on May 11, 1988, in case number A816694, in Los Angeles County. The abstract of judgment admitted into evidence referenced case number A816694 was from Los Angeles County, and reflected convictions obtained on May 11, 1988. Section 1197.2, subdivision (c)(19) provides, as it did at the time appellant committed the present offense, that robbery is a serious felony within the meaning of the three strikes law. It is clear that the trial court found appellant was previously convicted of four prior robbery convictions. Regardless of whether the information listed the robbery convictions of the first or second degree, all of the robbery convictions qualified as prior serious felonies. ( 1197.2, subd. (c)(19).) Thus, there was sufficient evidence presented at trial for the trial court to find that appellant indeed suffered four robbery convictions in May 1988 and we reject his claim. 5

V. Appellants sentence was neither cruel nor unusual.

Appellant contends his sentence constitutes cruel and unusual punishment in violation of article I, section 17 to the California Constitution and the Eighth Amendment to the federal Constitution. We find appellants sentence does not violate the proscriptions against cruel and unusual punishment.

The Eighth and Fourteenth Amendments to the United States Constitution prohibit the states from imposing a cruel and unusual punishment on a criminal defendant. Similarly, but with separate force, the California Constitution, article I, section 17, prohibits the infliction of [c]ruel or unusual punishment[s].

Defendants sentenced to a three strikes indeterminate sentence for 25 years or more to life have repeatedly challenged those sentences under both the federal and state Constitutions. Those challenges uniformly have been rejected by this court (People v. Cooper (1996) 43 Cal.App.4th 815) and in a multitude of published opinions from other districts of the Court of Appeal. (See People v. Cortez (1999) 73 Cal.App.4th 276, 286 (collecting cases).)

Although the issue of cruel and unusual punishment, particularly under the state Constitution, usually requires a rather lengthy, three-fold analysis (see In re Lynch (1972) 8 Cal.3d 410, 424), we believe there must come a point when the standard version of this argument may be summarily rejected. (See, e.g., People v. Cortez, supra, 73 Cal.App.4th at p. 286.) To the extent defendant relies on the nature of the offense, the disproportionate punishment for what he describes as more serious (but nonrecidivist) crimes, and the disproportionate punishment under the recidivist statutes of other jurisdictions, we summarily reject defendants argument for the reasons stated fully in People v. Cooper, supra, 43 Cal.App.4th at pages 825 through 828. Furthermore, we note that appellants criminal history demonstrates that he has not been deterred from criminal conduct as a result of imprisonment. Appellants criminal history spans over 22 years and began when he was a juvenile when he was committed to the California Youth Authority for vehicle theft. Six months after he was paroled, appellant was convicted of kidnapping, robbery, and rape and sentenced to nine years in prison. A few months later, in a separate proceeding, he was convicted of robbery and received a five-year prison term. Just a month after being paroled, appellant went on another crime spree resulting in two first degree robbery convictions, two second degree robbery convictions, an assault with a firearm conviction and a conviction for possession of a firearm by a felon. The trial court sentenced appellant to a term of 24 years in prison. However, even that did not squelch appellants criminal tendencies, as appellant was convicted of indent exposure while serving his sentence. Appellants current offenses were also committed while appellant was serving out his 24-year sentence. Although appellant has served many lengthy prison sentences, he has been unable to curb his criminal conduct. Appellant continues to reoffend almost immediately upon his release from prison. Even while incarcerated, appellant continues his criminal conduct. Given appellants extensive criminal history, we find his sentence does not violate either the state or federal proscriptions against cruel and unusual punishment. 6

DISPOSITION

The judgment is affirmed.

_________________________
Levy, J.

WE CONCUR:

_______________________________
Vartabedian, Acting P.J.

_______________________________
Harris, J.

FOOTNOTES

   1 Appellant was originally charged with nine counts of indecent exposure. At the close of the evidence, the trial court dismissed one count because the prosecution failed to produce evidence sufficient to support a conviction. The jury deadlocked on the remaining five counts and the trial court declared a mistrial as to those counts.

   2 All further references are to the Penal Code unless otherwise indicated.

   3 We will only recount the facts relating to the counts for which appellant was convicted.

   4 Appellant attempts to argue that his conduct was not sexually motivated because there was evidence that appellant told Adamson he had a problem when he was masturbating. However, we note there was not a scintilla of evidence demonstrating appellant had any problem, either psychological or physical, produced at trial.

   5 In addition, we note the trial court found true allegations that appellant suffered nine prior serious or violent felonies. Even if we were to agree with appellants assertion that one of his prior convictions must be stricken, appellant would still be subject to a three strikes sentence.

   6 We are aware Andrade v. Attorney General of State of California (9th Cir. 2001) 270 F.3d 743, 767, and Brown v. Mayle (9th Cir. 2002) 283 F.3d 1019, 1037, 1040, recently found three strikes sentences for wobbler offenses grossly disproportionate to the crime and therefore in violation of the Eighth Amendment to the United States Constitution. However, we note that decisions of the Ninth Circuit are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3.) To the extent they may be considered for their persuasive effect (People v. Bradford (1997) 15 Cal.4th 1229, 1305), we find the decisions in Andrade and Brown to be wholly unpersuasive for the reasons announced in People v. Romero (2002) 99 Cal.App.4th 1418.