Duarte, Acting P.J.

Certified for Partial Publication.

Jake C. Stebner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance W. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Christina Hitomi Simpson, Deputy Attorney General, for Plaintiff and Respondent.

Duarte, Acting P.J. Defendant Dwayne Allen Hubbard appeals from his conviction by jury trial for felony indecent exposure. Among his contentions are that the prosecutor committed misconduct by improperly referring to his decision to not testify, in violation of Griffin v. California (1965) 380 U.S. 609, at page 615, 85 S.Ct. 1229, 14 L.Ed.2d 106, and that the trial court erred by failing to instruct the jury sua sponte on attempted indecent exposure as a lesser included offense. In the published portion of our opinion, we disagree with these claims.

In the unpublished portion of our opinion, we disagree with an additional claim of prosecutorial misconduct and agree with defendant's claim that the trial court erred by admitting certain photographs into evidence. We find the error harmless and affirm the judgment.

FACTS AND PROCEEDINGS

The testimony presented at defendant's trial revealed the following:

At approximately 10:00 p.m., after finishing class at Cosumnes River College, Nayeli B. stood at the top of a set of stairs in front of the Winn Center while awaiting her ride home. She stood on the left side of the stairs. It was dark, but the area was well-lit by streetlamps. Nayeli saw defendant walking toward her; there was no one else in front of the building. Defendant walked closely past her. After walking past Nayeli, defendant walked down the stairs and stood behind two signs with a several inch gap between them; the signs were to the left of the bottom of the stairs and approximately 36 feet from her. That area was illuminated by a thin-poled streetlamp located between defendant and Nayeli.

Nayeli felt uncomfortable, so she called her girlfriend. Defendant "kept looking back staring at [her]" and "gawking" at her for approximately one to two minutes. Nayeli increased her attention on him so she could describe him for her girlfriend. She "noticed he was masturbating" while gawking at her. She did not see defendant pull out his penis, but she could see his penis, and she saw him moving his hand up and down in a "masturbating motion." She watched him masturbate for approximately 30 to 40 seconds. Defendant did not turn his back to her, position himself behind one of the signs, try to cover himself up, or stop gawking at her. Nayeli testified the light pole was "[a]bsolutely not" obstructing her view of defendant.

Nayeli ran back into the building; she was crying and screaming. She told an employee that she had seen a man masturbating. She said defendant was "thrusting himself" and that he "showed [her] his privates." The employee called the police. Campus security arrived at the scene and arrested defendant within three to five minutes.

The prosecution charged defendant with a single count of indecent exposure ( Pen. Code, § 314, subd. 1 ) and alleged that he had been previously convicted of committing a lewd or lascivious act on a child (§ 288, subd. (a)). That previous conviction rendered the indecent exposure charge a felony. ( § 314, subd. 2.) The information further alleged defendant had three serious felony prior convictions within the meaning of section 667, subdivision (e)(2)(C)(iv) and section 1170.12, subdivision (c)(2)(C)(iv) -- lewd or lascivious act on a child under 14 years (§ 288, subd. (a)), assault with intent to commit a sexual offense (§ 220), and attempted kidnapping (§§ 664, 207, subd. (a)).

A jury found defendant guilty of indecent exposure. In a bifurcated proceeding, the trial court found the allegations true. The court denied defendant's motion to dismiss the prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 53 Cal.Rptr.2d 789, 917 P.2d 628. Applying the three strikes law, the court sentenced defendant to 25 years to life in prison. Defendant timely appealed. Additional facts will be set out in the Discussion as necessary.

DISCUSSION

I

Allegation of Griffin Error

Defendant neither testified nor called any witnesses on his behalf. He contends the prosecutor improperly commented on his failure to testify, in violation of Griffin . Although we view this as a fairly close case, as we explain in detail below, we conclude the prosecutor's challenged comments were fair responses to specific portions of defense counsel's closing argument.

A. Procedural Background

During her closing argument, defense counsel argued that defendant was merely a student who had to urinate: "So this student is leaving campus. He has to take a pee. He is walking down the stairs. He is going to the Light Rail station. He has no idea how many people might be standing there at that Light Rail station. There is one person where he is, okay? There is one person that he just walked past. She had just stopped in front of him at the top of those stairs. He passed her. He glances back once to check is she going to stay there. Is this a private place or not." Two short paragraphs of the transcript from the end of her closing, defense counsel emphasized the lack of physical evidence against defendant and told the jury that: "In no way, shape or form did the government give a student any chance of proving he is not guilty ." (Italics added.) The trial court sustained the prosecutor's objection that the argument assumed facts not in evidence.

After a recess, at the beginning of his rebuttal argument, the prosecutor read CALCRIM No. 355 : "A defendant has an absolute constitutional right not to testify. He may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for any reason at all the fact the defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way."

The prosecutor then argued: "That's the law and you guys have to follow it. You must understand that. Also, the burden in this case, it's with the People. It's with me. It never shifts. [Defense counsel] is absolutely correct when she tells you they don't have to do anything. They don't have to put on any evidence.

"But now let's talk about what they are not allowed to do. She's not allowed to get up here in closing and make up facts of which there is no evidence of that. What am I talking about? Well, apparently he's a college student who was getting out of class, going to the Light Rail station, stopped to pee. What evidence did we hear of that? What evidence at all?

"He had a collared shirt and a backpack on. That is true. You heard that evidence. You didn't hear any evidence of the narrative she spun about this innocent man walking after getting out of college class going to the Light Rail station, zero, none.

"The defendant has an absolute right not to testify, but she cannot use that as a sword and a shield. And that's what she did. And the reason she did it, because these facts don't break good for her or her client. You are left with the evidence you heard."

The prosecutor concluded his rebuttal: "Did [defendant] sit around innocently peeing or just hanging out facing the Winn Center? No, he didn't. He went to the Light Rail station. [¶] The facts are clear, the evidence is uncontroverted. The defendant has a constitutional right to the presumption of innocence. He has that throughout these proceedings, up and until you are convinced otherwise. The burden never shifts. Remember that. But what he is not entitled to do is a made up universe of facts that was just given to you in the defense attorney's closing argument."

At the conclusion of the prosecutor's argument, defense counsel requested to approach the bench. The lawyers and the court conferenced in chambers. After giving the jury its final instructions and dismissing it to begin deliberations, the court told defense counsel, "I know you have something you want to put on the record ... so we will get to that in just a moment." After addressing other procedural issues, the court stated, "And your argument on the closing, Ms. Cunningham." Defense counsel then objected to the prosecutor's argument; she argued he improperly drew attention to the fact that defendant did not testify before arguing there was no evidence to support defense counsel's version of the events. According to defense counsel, the prosecutor's argument implied defendant should have testified. She requested a curative instruction.

The trial court observed the prosecutor had a right to recite any jury instruction, and it was not improper to highlight the fact that there was no evidence that defendant was merely urinating. It did not give a curative instruction. B. Standard of Review

We evaluate claims of Griffin error by inquiring whether there is "a reasonable likelihood that any of the [prosecutor's] comments could have been understood, within its context, to refer to defendant's failure to testify." ( People v. Clair (1992) 2 Cal.4th 629, 663, 7 Cal.Rptr.2d 564, 828 P.2d 705.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" ( People v. Samayoa (1997) 15 Cal.4th 795, 841, 64 Cal.Rptr.2d 400, 938 P.2d 2.) We review prosecutorial remarks referring to the defendant's failure to testify de novo. (See People v. Roybal (1998) 19 Cal.4th 481, 514, 79 Cal.Rptr.2d 487, 966 P.2d 521.)

"What is crucial to a claim of prosecutorial misconduct is not the good faith vel non of the prosecutor, but the potential injury to the defendant." ( People v. Benson (1990) 52 Cal.3d 754, 793, 276 Cal.Rptr. 827, 802 P.2d 330.) "Under the federal standard, prosecutorial misconduct that infects the trial with such ‘ "unfairness as to make the resulting conviction a denial of due process" ’ is reversible error. [Citation.] In contrast, under our state law, prosecutorial misconduct is reversible error where the prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘ "it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct" ’ [citation]." ( People v. Martinez (2010) 47 Cal.4th 911, 955-956, 105 Cal.Rptr.3d 131, 224 P.3d 877.)

C. Forfeiture

The Attorney General contends defendant forfeited the argument by not timely objecting to the argument and by not objecting on the basis of a federal constitutional error. We disagree.

"To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and, unless an admonition would not have cured the harm, ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct. [Citation.]" ( People v. Martinez , supra , 47 Cal.4th at p. 956, 105 Cal.Rptr.3d 131, 224 P.3d 877.) In People v. Peoples (2016) 62 Cal.4th 718 at page 801, 198 Cal.Rptr.3d 365, 365 P.3d 230, our Supreme Court concluded the defendant did not forfeit a prosecutor misconduct claim despite his failure to contemporaneously object to the statements. The court held that the defendant's motion for a mistrial the day after the prosecutor's remarks preserved the issue on appeal where the motion occurred before the jury had begun deliberating and well before a verdict had been reached. ( Ibid. ) Here, while the referenced chambers conference was unreported, it appears defense counsel raised her objections to the prosecutor's argument immediately after the conclusion of the prosecutor's argument. We conclude defendant's objection put the court on notice that misconduct was alleged in time for the court to issue a curative instruction. Thus, defendant's objection was timely.

We also disagree that defendant forfeited the argument by not objecting on the basis of a federal constitutional error. Defendant contended that the prosecutor had made "an improper argument" by highlighting that he did not testify and implying that he should have testified to support his trial counsel's version of the events. That objection and explanation was sufficient to preserve the claim.

D. Griffin Error Background

Under the rule in Griffin v. California, supra , 380 U.S. at pages 612 to 613, 85 S.Ct. 1229, it is a violation of the Fifth Amendment to the United States Constitution for the prosecutor or court to comment on the defendant's failure to testify. The Griffin rule has been extended to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant's failure to testify. ( People v. Medina (1995) 11 Cal.4th 694, 755, 47 Cal.Rptr.2d 165, 906 P.2d 2 ; People v. Guzman (2000) 80 Cal.App.4th 1282, 1287, 96 Cal.Rptr.2d 87 [ Griffin has been interpreted as prohibiting prosecution from "so much as suggesting to the jury that it may view the defendant's silence as evidence of guilt"]; People v. Vargas (1973) 9 Cal.3d 470, 476, 108 Cal.Rptr. 15, 509 P.2d 959 [prosecutor's argument asserting "there is no denial at all that they were all there" connotes a personal response from the accused himself].) This rule does not prohibit a prosecutor's comments on the state of the evidence, or on the failure of the defense to introduce material evidence or to call logical witnesses. ( People v. Hovey (1988) 44 Cal.3d 543, 572, 244 Cal.Rptr. 121, 749 P.2d 776 ; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1524, 176 Cal.Rptr.3d 517.) " ‘ " ‘[A] prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom.’ " ’ " ( People v. Hill (1998) 17 Cal.4th 800, 819, 72 Cal.Rptr.2d 656, 952 P.2d 673.)

As relevant here, under certain specific circumstances a prosecutor's reference to a defendant's opportunity to testify may be properly classified as fair response to defense counsel's argument. This tactic is not without risk, but the United States Supreme Court has described a situation where a reference to a lack of evidence coming from defendant himself does not violate his Fifth Amendment privilege. In United States v. Robinson (1988) 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23, defense counsel urged during closing argument that the government had not allowed defendant to explain his side of the story in a mail fraud prosecution. The prosecutor responded during his closing that defendant " ‘could have taken the stand and explained it to you ....’ " ( Id. at p. 28, 108 S.Ct. 864.) The Court observed that the prosecutor's comment referred to defendant's decision to not testify as declining an opportunity to tell his side of the story. ( Id. at pp. 31-32, 108 S.Ct. 864.) The Court did not find error, explaining the difference between Griffin error and the prosecutor's comments in Robinson : "Where the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant's silence, Griffin holds that the privilege against compulsory self-incrimination is violated. But whereas in this case the prosecutor's reference to the defendant's opportunity to testify is a fair response to a claim made by defendant or his counsel, we think there is no violation of the privilege." ( Id. at p. 32, 108 S.Ct. 864.) The Court observed, " ‘[The] central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, [citation] ....’ [Citation.] To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another." ( Id. at p. 33, 108 S.Ct. 864.) "It is one thing to hold ... that the prosecutor may not treat a defendant's exercise of his right to remain silent at trial as substantive evidence of guilt; it is quite another to urge, as defendant does here, that the same reasoning would prohibit the prosecutor from fairly responding to an argument of the defendant by adverting to that silence." ( Id . at p. 34, 108 S.Ct. 864.)

Thus "[q]uestions or argument suggesting that the defendant did not have a fair opportunity to explain his innocence can open the door to evidence and comment on his silence. [Citation.]" ( People v. Lewis (2004) 117 Cal.App.4th 246, 257, 12 Cal.Rptr.3d 1, italics added.)

E. Analysis

As we have detailed above, here defense counsel argued that defendant was merely a student leaving campus who had to urinate, despite the fact that no evidence had been admitted supporting that description of events. She added that the government did not give "a student any chance of proving he is not guilty."

The prosecutor then began his rebuttal by reciting CALCRIM No. 355. Absent the preceding argument by defense counsel, this may well have been problematic. (See In re Rodriguez (1981) 119 Cal.App.3d 457, 468, 174 Cal.Rptr. 67 [discouraging reference to comparable instruction by the prosecutor in argument, noting that the "probable effect is to focus the jury's attention upon" defendant's failure to testify and comments thereon, and that "depending upon the tone and manner in which they are delivered, ... convey a meaning precisely contrary to their literal import"].) The prosecutor then reminded the jury that the defense did not have to put on any evidence, and stated: "But now let's talk about what they are not allowed to do. She's not allowed to get up here in closing and make up facts of which there is no evidence of that. What am I talking about? Well, apparently he's a college student who was getting out of class, going to the Light Rail station, stopped to pee. What evidence did we hear of that? What evidence at all?" He continued: "You didn't hear any evidence of the narrative she spun about this innocent man walking after getting out of college class going to the Light Rail station, zero, none." These statements were permissible comments on the evidence and did not comment on defendant's decision to not testify. (See People v. Bradford (1997) 15 Cal.4th 1229, 1339-1340, 65 Cal.Rptr.2d 145, 939 P.2d 259 [prosecutor's statement that " ‘there is no evidence to the contrary’ " does not constitute Griffin error because it did not allude to the lack of refutation or denial by defendant].)

The prosecutor continued: "The defendant has an absolute right not to testify, but she cannot use that as a sword and a shield. And that's what she did. And the reason she did it, because these facts don't break good for her or her client. You are left with the evidence you heard." These statements, while again referencing CALCRIM No. 355 and arguably impermissible comments on defendant's decision to not testify when taken out of context, in this instance were fair response to defense counsel's closing argument. The prosecutor fairly observed that defense counsel had just argued a version of the facts largely lacking in evidentiary support--the sword--while not subjecting defendant or that version of the facts generally to cross examination--the shield. And, importantly, as we have described above, defense counsel had just told the jury that "the government" had not, in any "way, shape, or form," given defendant the "chance of proving he is not guilty." Under Robinson and Lewis , this argument permitted the prosecutor to counter the suggestion that defendant was somehow precluded by the government from telling his story. While we recognize that, for practical purposes, defendant was not able to testify given his prior sex offenses (see Evid. Code, § 788 ; People v. Linyard (1957) 151 Cal.App.2d 50, 55, 311 P.2d 57 ), here defense counsel herself raised the issue.

In concluding his rebuttal argument, the prosecutor stated: "Did [defendant] sit around innocently peeing or just hanging out facing the Winn Center? No, he didn't. He went to the Light Rail station. [¶] The facts are clear, the evidence is uncontroverted. The defendant has a constitutional right to the presumption of innocence. He has that throughout these proceedings, up and until you are convinced otherwise. The burden never shifts. Remember that. But what he is not entitled to do is a made up universe of facts that was just given to you in the defense attorney's closing argument."

Our Supreme Court has held that a prosecutor may commit Griffin error if he argues to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. ( People v. Johnson (1992) 3 Cal.4th 1183, 1229, 14 Cal.Rptr.2d 702, 842 P.2d 1.) The prosecutor may, however, describe the evidence as "unrefuted" or "uncontradicted" where the evidence could have been contradicted by witnesses other than defendant. ( Ibid. ) In People v. Bruce G. (2002) 97 Cal.App.4th 1233 at pages 1244 to 1245, 118 Cal.Rptr.2d 890, we observed that a prosecutor may characterize evidence as "uncontroverted" even where the defendant is the only person who could have known what did or did not happen if the prosecutor was commenting on the entire state of the evidence.

Here, defendant could have presented other witnesses to support his counsel's version of events. For example, defendant could have called his professor, a classmate, or an administrator to testify that he was in a class that had concluded immediately before the incident or some other fact to show that he was, indeed, "a student," as counsel argued. Moreover, here the prosecutor's statement that the evidence was "uncontradicted" was a comment on the state of the evidence rather than a comment on defendant's failure to testify. The comment simply observed, correctly, that no evidence contradicting Nayeli's version of events had been presented. Because the prosecutor's statements were fair comments in response to a defense argument that was not based on actual evidence admitted at trial, this segment of the argument was also permissible.

For these reasons, we conclude the prosecutor did not commit Griffin error in any of his challenged comments during his rebuttal argument.

II

Lesser Included Offense Instruction

Defendant contends the trial court erred by failing to instruct the jury sua sponte on the law of attempted indecent exposure as a lesser included crime of indecent exposure. He asserts there is substantial evidence that he committed attempted indecent exposure but not the completed crime of indecent exposure, requiring the court to instruct the jury on attempt. We disagree.

A. Duty to Instruct

" ‘The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.’ [Citations.] ‘That obligation encompasses instructions on lesser included offenses if there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt of the greater offense but not of the lesser.’ [Citations.] ‘To justify a lesser included offense instruction, the evidence supporting the instruction must be substantial—that is, it must be evidence from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist.’ [Citations.] [¶] ‘ "Conversely, even on request, the court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.’ " [Citation.] This substantial evidence requirement is not satisfied by " ‘any evidence ... no matter how weak,’ " but rather by evidence from which a jury composed of reasonable persons could conclude "that the lesser offense, but not the greater, was committed." [Citation.] "On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense." ’ " ( People v. Souza (2012) 54 Cal.4th 90, 115-116, 141 Cal.Rptr.3d 419, 277 P.3d 118.) An attempt to commit a specific intent crime is considered a lesser included offense of the completed crime. ( In re Sylvester C. (2006) 137 Cal.App.4th 601, 609, 40 Cal.Rptr.3d 461.)

"Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." ( People v. Wilson (1967) 66 Cal.2d 749, 763, 59 Cal.Rptr. 156, 427 P.2d 820.)

B. Indecent Exposure

"Generally, a conviction for indecent exposure requires proof of two elements: ‘(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.’ [Citation.]" ( People v. Carbajal (2003) 114 Cal.App.4th 978, 982, 8 Cal.Rptr.3d 206 ( Carbajal ).) "[A] conviction for indecent exposure under Penal Code section 314, subdivision 1 requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant's genitals." ( Id. at p. 986, 8 Cal.Rptr.3d 206.)

The trial court instructed the jury with CALCRIM No. 1160, which provides: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant's actions; [¶] [AND] [¶] 2. When the defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person[.] [¶] Someone commits an act willfully when he does it willingly or on purpose. It is not required that he intend to break the law, hurt someone else, or gain any advantage. [¶] It is not required that another person actually see the exposed genitals."

As for attempted indecent exposure, "[a]n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." (§ 21a.) "[A] defendant can be convicted of an attempt to commit a crime even though the crime, in fact, was completed." ( People v. Rundle (2008) 43 Cal.4th 76, 138, fn. 28, 74 Cal.Rptr.3d 454, 180 P.3d 224, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22, 87 Cal.Rptr.3d 209, 198 P.3d 11 ; § 663.)

In Carbajal , supra , 114 Cal.App.4th 978, 8 Cal.Rptr.3d 206, the appellate court directly addressed the issue whether a defendant may be convicted of indecent exposure where the complaining witness did not personally see the defendant's genitals. While sitting at a table in a restaurant, Carbajal put his fist inside his shorts and moved his hands up and down for five to 10 minutes. He then ejaculated onto the floor. The complaining witness testified she did not see Carbajal's penis because he wore a long t-shirt and loose fitting shorts. The witness could tell he had taken his penis out of his shorts because she would see the skin of his fist " ‘[w]hen he made strong movements ....’ " ( Id . at p. 981, 8 Cal.Rptr.3d 206.) The jury found the defendant guilty of indecent exposure and lewd conduct. ( Ibid . )

On appeal, Carbajal challenged the sufficiency of the evidence as to his conviction for indecent exposure because the complaining witnesses did not actually see his genitals. ( Carbajal , supra , 114 Cal.App.4th at p. 982, 8 Cal.Rptr.3d 206.) The court reviewed the history of section 314 and the application of similar statutes in other jurisdictions. ( Carbajal , at pp. 983-986, 8 Cal.Rptr.3d 206.) The court first observed that, at common law, indecent exposure only required that the exposure had occurred in a public place, not that it be observed. ( Id. at p. 983, 8 Cal.Rptr.3d 206, citing 3 Wharton's Criminal Law (15th ed. 1995) § 308, pp. 196-200, fns. omitted.) In reviewing recent cases from other jurisdictions, the court noted several jurisdictions have not required the exposure to be witnessed. ( Carbajal , at pp. 984-985, 8 Cal.Rptr.3d 206 [citing cases].) The court identified potentially conflicting case law from Texas, where a divided appellate court held that a man using his hand to shield his otherwise uncovered penis had not committed indecent exposure ( Beasley v. State (Tex. App. 1995) 906 S.W.2d 270, 271, 272 ), and a different appellate court later concluded that circumstantial evidence suggesting a defendant was naked from the waist down and was masturbating was sufficient to support a conviction for indecent exposure ( Metts v. State (Tex. App. 2000) 22 S.W.3d 544, 546-548 ). ( Carbajal , at p. 985, 8 Cal.Rptr.3d 206.) Finally, the Carbajal court described two cases from other jurisdictions in which the evidence was insufficient to support the conclusion that the defendant had actually exposed himself. ( Carbajal , at p. 986, 8 Cal.Rptr.3d 206, citing Commonwealth v. Arthur (1995) 420 Mass. 535, 650 N.E.2d 787, 788-789 [evidence insufficient where defendant only exposed pubic hair], State v. Jaime (1967) 4 Conn.Cir.Ct. 530, 236 A.2d 474, 475 [evidence insufficient where defendant was observed "shaking his hand in the region of his sexual organ" but not exposing himself].)

The Carbajal court concluded: "Our review of the common law and cases from other jurisdictions leads us to conclude that a conviction for indecent exposure under Penal Code section 314, subdivision 1 requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant's genitals. Thus, we will uphold defendant's conviction for indecent exposure in the absence of evidence of any direct visual observation of his genitals so long as there is sufficient circumstantial evidence to show that actual exposure occurred." ( Carbajal , supra , 114 Cal.App.4th at p. 986, 8 Cal.Rptr.3d 206.)

Defendant relies on People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 24 Cal.Rptr.2d 321, where a complaining witness awoke to the sound of Rehmeyer putting lotion on his skin and rubbing briskly. The witness saw a nude--except for a baseball cap--man in her doorway, who turned and ran away when she awoke. She did not see the man's genitals. ( Id . at p. 1764, 24 Cal.Rptr.2d 321.) A jury found Rehmeyer guilty of attempted indecent exposure, and he challenged the conviction on appeal. ( Id . at p. 1766, 24 Cal.Rptr.2d 321.) The appellate court concluded sufficient evidence supported Rehmeyer's intent to expose himself and that he was masturbating before the witness woke up. ( Id . at p. 1767, 24 Cal.Rptr.2d 321.) But the court in Rehmeyer notably did not conclude that the evidence presented would have been insufficient to support a conviction for indecent exposure merely because the witness did not see Rehmeyer's genitals. Indeed, the court did not discuss whether a complaining witness would need to see a defendant's genitals to support a conviction for indecent exposure.

We apply the standard described in Carbajal , supra , 114 Cal.App.4th at page 986, 8 Cal.Rptr.3d 206, and conclude here that there was not substantial evidence to require the attempted indecent exposure instruction. Defendant asserts that a juror skeptical of Nayeli's version of events could have reasonably concluded that the prosecution had only proved attempted indecent exposure. He contends Nayeli was standing approximately 36 feet away from defendant, there was no evidence of semen at the scene, the events occurred at night, and defendant was standing between two signs. He argues Nayeli was on "high alert" and could have misperceived or confabulated what actually occurred. Finally, he asserts circumstantial evidence allows for the conclusion that the light pole could have partially or completely blocked her view of defendant's genitals. Defendant concludes: "[A] reasonable juror had reason to conclude that [defendant] was masturbating and attempting to expose his penis to [Nayeli], but that his effort was thwarted by the visual barriers of darkness, distance, and physical obstructions between him and [Nayeli]."

However, the issue here is not whether Nayeli actually observed defendant's genitals. Rather, the issue is whether, in Nayeli's presence, defendant willfully exposed himself lewdly for the purpose of sexually gratifying himself or offending Nayeli. Defendant argues that a reasonable juror could have concluded that defendant's conduct satisfied all of the elements but that his genitals were not visible to Nayeli. But in that circumstance, defendant would still have satisfied the elements of indecent exposure. Therefore, we conclude there was no factual circumstance in which the jury could have found defendant guilty of attempted indecent exposure and not guilty of indecent exposure.

III-IV

DISPOSITION

The judgment is affirmed.

We concur:

Hoch, J.

Butz, J.