Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. JV29709
Mihara, J.
On March 14, 2006, the Santa Clara County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging that appellant Lionel M. committed two counts of indecent exposure, a misdemeanor (Pen. Code, § 314, subd. 1). After a contested jurisdictional hearing, the juvenile court sustained the petition as to one count and dismissed the second count. Appellant was adjudged a ward of the court and returned to the custody of his parents. He was ordered to participate in counseling and to have no contact with the victims. On appeal, appellant contends (1) there is insufficient evidence to support the finding that he violated section 314 because there is no evidence of lewd intent, and (2) there is insufficient evidence to establish that he understood the wrongfulness of his conduct. We affirm the order.
All further statutory references are to the Penal Code unless otherwise noted.
I. Background
On February 8, 2006, Marlena C. and Devyn N. were sitting in a classroom at their middle school waiting for the bell to ring. The teacher was grading papers at her desk and other students were present. Appellant, then 12 years old, approached the two girls. Devyn heard him say “hey, look” in the type of tone used to get someone’s attention, and she turned toward him. Appellant was standing several feet away from Devyn, with his pants down. Devyn observed appellant’s penis for about two seconds before she turned away. Appellant pulled up his pants and walked back to his seat.
Devyn did not report the incident, but told the police officer who interviewed her later that day that she was “upset.” At the jurisdictional hearing, she did not recall some of the details of the incident and said she “just let it go” and did not “really think much of it after a while.” Devyn also testified that she thought appellant’s act was “kind of inappropriate” and that she did not really want to remember it.
Marlena did not testify. The court thus dismissed the second count and sustained the petition only as to count one. The court found that appellant understood the wrongfulness of his conduct as defined in section 26.
II. Discussion
“An appellate court must review the whole record in the light most favorable to the judgment in order to determine whether it discloses substantial evidence that a reasonable trier of fact could find the essential elements of the crime beyond a reasonable doubt.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136.) Substantial evidence in a criminal case is “evidence which is reasonable, credible, and of solid value – such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “‘[T]he trier of fact looks to all the circumstances, including the charged act, to determine whether it was performed with the required specific intent.’” (People v. Martinez (1995) 11 Cal.4th 434, 445.)
“The trier of fact, not the appellate court, must be convinced of the defendant’s guilt, and if the circumstances and reasonable inferences justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.] This standard of review applies with equal force to claims that the evidence does not support the determination that a juvenile understood the wrongfulness of his conduct. [Citation.]” (In re Jerry M. (1997) 59 Cal.App.4th 289, 298 (Jerry M.).)
Penal Code section 314 provides, in relevant part: “Every person who willfully and lewdly . . . (1) Exposes 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 . . . is guilty of a misdemeanor.” (Italics added.) As the California Supreme Court confirmed in In re Smith (1972) 7 Cal.3d 362, 365-366 (Smith), the “requirement that the intent of the actor be ‘lewd’ is an essential element of the offense declared by section 314.”
In Smith, supra, 7 Cal.3d at page 364,the defendant was convicted of indecent exposure after he went to the beach to sunbathe, removed his clothes, lay down on his back and fell asleep. Despite a stipulation that he had not engaged in any activity directing attention to his genitals, he was convicted of indecent exposure (§ 314). (Smith, at p. 364.) The court vacated the judgment, finding no lewd intent. (Id. at pp. 366, 368.) In reaching its holding, the California Supreme Court explained that a “person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated.” (Id. at p. 366.) A conviction of indecent exposure thus “requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (Ibid., italics added.) As used in Smith, “sexual” modifies all three words—arousal, gratification, and affront. (People v. Archer (2002) 98 Cal.App.4th 402, 404-406 (Archer); In re Dallas W. (2000) 85 Cal.App.4th 937, 939 (Dallas W.).)
The Dallas W. court further suggests that a defendant does not violate section 314 if he does not intend “‘to arouse himself or a third person by his act.’” (Dallas W., supra, 85 Cal.App.4th at p. 940.) This is contrary to the holding in Smith and we do not follow this portion of the Dallas W. court’s ruling.
Neither party suggests there is evidence of sexual arousal or sexual gratification in this case. The issue, thus, is whether appellant intended to direct attention to his private parts for the purposes of “sexual affront.” In other words, whether appellant intentionally exposed his penis to Devyn “for the purpose of sexually insulting or offending” her. (Archer, supra, 98 Cal.App.4th at p. 406, italics in original [noting that to “affront” is “‘to insult esp[ecially] to the face by behavior or language’”].)
As evidence of sexual affront, the People stress appellant’s decision to expose his genitals, rather than to seek attention from the girls in another manner. Although section 314 necessarily requires that the defendant expose his genitals (People v. Massicot (2002) 97 Cal.App.4th 920, 924 [“the only reasonable construction of the phrase ‘[e]xposes his person’ within section 314 is that it means the display of a person’s entirely unclothed body, including by necessity the bare genitals”]), this case includes additional facts suggesting a lewd intent. Appellant approached the two girls, gained their attention, and then exposed his penis. The exposure of his genitalia was not, as in Smith, a consequence of passive nudity, but a deliberate action directed at two young girls. (Compare, e.g., Wainwright v. Procunier (9th Cir. 1971) 446 F.2d 757, 759-760 [no evidence of lewd intent where defendant urinated in public after surgery which made it necessary for him to urinate frequently].) Appellant did not, for example, step to the front of the room to briefly flash the entire class or streak through the school halls; instead, he targeted Devyn and Marlena and ensured they observed his private parts from a close distance. A reasonable inference is that appellant intended, through the shocking display of his genitalia, to annoy or offend his female classmates. Devyn was, in fact, “upset” by appellant’s action and found it “inappropriate.” Finally, appellant’s choice to highlight only his penis provides adequate evidence of the sexual nature of the offense. (Cf. Smith, supra, 7 Cal.3d at p. 365 [citing case in which “defendant exposed himself by positioning his body so that his head was inside his parked car while the lower portion of his body was outside” as an example where indecent exposure conviction was upheld because more than mere nudity was established].)
Although the circumstances surrounding appellant’s action are subject to other reasonable interpretations, we find sufficient support for the trial court’s implied finding that appellant acted with the purpose of a sexual affront. We likewise find sufficient evidence that appellant appreciated the wrongfulness of his conduct.
Only those minors “under 14 who—as demonstrated by their age, experience, conduct, and knowledge—clearly appreciate the wrongfulness of their conduct rightly may be made wards of the court in our juvenile justice system.” (In re Manuel L. (1994) 7 Cal.4th 229, 231-232 (Manuel L.).) Section 26 therefore “articulates a presumption that a minor under the age of 14 is incapable of committing a crime.” (Manuel L., at p. 231.) To rebut this presumption, the People must provide “clear and convincing evidence” that the minor defendant knew the act’s wrongfulness at the time of commission. (Ibid.) Although a minor’s knowledge of wrongfulness may not be inferred from the commission of the act itself, “the attendant circumstances of the crime, such as its preparation, the particular method of its commission, and its concealment” may be considered. (In re Tony C. (1978) 21 Cal.3d 888, 900, superseded on other grounds by Cal. Const., art. I, § 28.) The minor’s age also is an important consideration; “the closer the minor approaches the age of 14 years, the more likely the minor understands the wrongfulness of his acts within the meaning of section 26.” (Jerry M., supra, 59 Cal.App.4th at p. 300; see also People v. Lewis (2001) 26 Cal.4th 334, 378.)
Here, 12-year-old appellant sought the girls’ specific attention prior to exposing his penis for only a few seconds. He then pulled up his pants before returning to his seat in the classroom. Appellant’s apparent effort to limit the exposure to the two girls suggests knowledge of the act’s wrongfulness. Moreover, appellant’s mother testified that appellant knew that no one, aside from a doctor or family member, should see or touch his genitals. She further testified that she believed he generally understood that one does not take down one’s pants in public. Although appellant’s mother could not point to a specific discussion with appellant regarding the propriety of exposing one’s genitals, the circumstances of the crime combined with her testimony that appellant knew his genitals are a private part of the body provide sufficient evidence of appellant’s knowledge of wrongfulness.
III. Disposition
The order is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., McAdams, J.