Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge, Los Angeles County Super. Ct. No. BA290547
Gloria C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General of the State of California, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, and Herbert S. Tetef, Deputy Attorney General, for Plaintiff and Respondent.
ARMSTRONG, J.
Appellant Daniel Curtis was convicted, following a jury trial, of one count of indecent exposure in violation of Penal Code section 314, subdivision (a). Appellant admitted that he had suffered a prior conviction for the same offense. The trial court sentenced appellant to two years in state prison, but suspended the sentence and placed him on probation for a period of five years.
Appellant appeals from the judgment of conviction, contending that there is insufficient evidence to support his conviction. We affirm the judgment of conviction.
Facts
On the night of June 25, 2005, N.L. finished her shift as a janitor in an office building on Wilshire Boulevard. N. sat down in the lobby of the building to wait for a coworker who normally gave her a ride home at about 2:15 a.m. Appellant, who was working in the building as a security guard, approached N. and began talking to her. N. had never seen appellant before and spoke no English, so she ignored him. He returned to the security desk.
Appellant then walked back toward N. and faced her. His pants were down around his thighs. He moved his hands back and forth on his penis. He was about a foot away from N. N. did not actually see his penis, although she saw appellant holding his penis and moving his hands back and forth. She did not remember whether she saw appellant's underwear. N. was scared and did not know what to do. She believed that after about five to ten minutes, she went outside, but she could not remember how she got there.
The next day, N. told her supervisor about the incident. She also called the police.
A videotape from a security camera in the building showed the security desk and part of the lobby. The videotape showed appellant leaving the security desk at about 2:07 a.m., then returning to the desk and leaving it again. At about 2:17 a.m., the tape showed N. getting on an elevator. Appellant then returned to the security desk, picked up a paper towel and sat down.
Appellant had worked in the building for about three months before this incident. He had given notice the night of the incident that this would be his last night.
Appellant presented no evidence in his defense.
Discussion
Appellant contends that there is insufficient evidence to show that he exposed his genitals and so insufficient evidence to support his conviction for indecent exposure. He further contends that such a conviction violates his federal constitutional right to due process. We do not agree.
In reviewing the sufficiency of the evidence, "courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -that 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.' [Citations.]" (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably 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 a reversal of the judgment. [Citations.]" (People v. Stanley (1995) 10 Cal.4th 764, 792-793 [internal quotation marks omitted].)
"If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied [citation] as is the due process clause of article I, section 15 of the California Constitution." (People v. Osband (1996) 13 Cal.4th 622, 690.)
Generally, a conviction for indecent exposure requires proof that the defendant willfully and lewdly exposed the private parts of his person and that such exposure was committed in a public place or in a place where others are present and offended or annoyed by it. (People v. Carbajal (2003) 114 Cal.App.4th 978, 982.) While such a conviction requires evidence that a defendant actually exposed his genitals in the presence of another person, "there is no concomitant requirement that such a person actually must have seen the defendant's genitals." (Id. at p. 986.)
Here, N. testified that she saw appellant's hands moving up and down his penis while he was facing her. It is reasonable to infer that his penis was exposed during this activity, even if this did not register with N. This is sufficient evidence to support appellant's conviction.
Appellant contends that because N. testified that she recalled seeing his pants down to the middle of his thighs, but did not remember seeing his underwear, it is possible that his underwear might have been on while he was moving his hands up and down his penis. He further contends that because N. did not see his penis, but only his hands, it is possible that he had a handkerchief around his penis. In either case, appellant concludes, his genitals would not have been exposed.
It is reasonable to infer from N.'s testimony that she did not remember seeing appellant's underwear because the underwear was not in fact visible, either because it was inside his pants or because he was not wearing any. While the inference that appellant was wearing his underwear might also be possible, this does not assist appellant on appeal. (People v. Stanley, supra, 10 Cal.4th at pp.792-793.) As for appellant's suggestion that he might have had a handkerchief or other object in his hands, we see no basis for such an inference.
Relying on State v. Wymore (Idaho 1977) 560 P.2d 868, appellant contends that it is not reasonable to infer exposure from masturbation. In Wymore, the witness saw the defendant in a pick-up truck, moving his hands and gesturing as if he were masturbating. (Id. at p. 869.) Thus, he was largely shielded from the witness's view. That was not the case here. N. had a full frontal view of appellant while he masturbated. Thus, Wymore does not assist appellant.
Given the above facts, we have no hesitation in concluding that a rational trier of fact could have found appellant guilty beyond a reasonable doubt. Appellant's due process claim thus fails. (People v. Osband, supra, 13 Cal.4th 622, 690.)
Disposition
The judgment is affirmed.
We concur: TURNER, P. J., MOSK, J.