Opinion
G053845
12-21-2017
THE PEOPLE, Plaintiff and Respondent, v. RICK RYAN FEBBO, Defendant and Appellant.
Bruce Alan Zucker for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14HF0747) OPINION Appeal from a judgment of the Superior Court of Orange County, Thomas A. Delaney, Judge. Affirmed. Bruce Alan Zucker for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Meagan J. Beale and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.
Rick Ryan Febbo appeals from a judgment after a jury convicted him of three counts of felony indecent exposure and found true prior conviction allegations. Febbo argues the trial court erred by admitting evidence pursuant to Evidence Code sections 1101, subdivision (b), and 1108, by denying his judicial disqualification motion, and by failing to instruct the jury with lewd conduct as a lesser included offense of indecent exposure. Although we agree there was some justification for the lesser included offense instruction, Febbo was not prejudiced. None of his other contentions have merit, and we affirm the judgment.
FACTS
Angela Winchenbach moved into a condominium complex and lived across from and one floor below Febbo's residence. Around 5:30 one dark morning, Winchenbach was showering and noticed a light turn on over Febbo's balcony. Febbo was standing naked with his back to her.
When Winchenbach went to take a shower the next morning about the same time, the light over Febbo's balcony was on. She noticed the utility door was also open, but she did not see anyone. As she showered, Febbo emerged from behind the utility door, his lower body covered by towels draped over the balcony. Febbo moved the towels over and stood naked, masturbating while he looked at Winchenbach's bathroom.
When Winchenbach started to shower early the next morning, Febbo turned on his balcony light. Febbo again removed the towels from the balcony to expose himself and masturbated as he looked toward Winchenbach's unit.
The following day, a Saturday, Winchenbach showered later. She looked out of her bathroom window and saw Febbo, who was wearing swim trunks but no shirt, sitting on a chair on top of his air conditioning unit on his balcony. He looked down at her unit for several hours. The next day, Winchenbach called the police, who told her to report any further incidents.
The following Monday, Winchenbach went into her bathroom at 5:45 a.m., but did not turn on the light. Febbo's balcony light was on and towels were draped over the balcony. Febbo appeared to be naked. Winchenbach retrieved her cell phone to take pictures and when Febbo moved the towels, he was naked. When Winchenbach put the camera in front of the window she could see Febbo looking down on her with a smile on his face. She called the police.
A couple days later, Winchenbach tried to take a shower in the dark. Febbo was on the lighted balcony. He moved the towels and masturbated while looking down at Winchenbach's unit. Winchenbach called the police.
Police officers arrested Febbo and advised him of his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, which he waived. During an interview, Febbo eventually admitted he knew he was visible to people, it excited him, and he could see Winchenbach in the shower and looked at her twice.
An amended information charged Febbo with three counts of indecent exposure with prior convictions, one from 2008 and another from 2009. (Pen. Code, § 314, subd. (1), all further statutory references are to the Penal Code, unless otherwise indicated.) The information alleged Febbo suffered a prior serious and violent felony conviction (§§ 459-460), and two prison prior convictions (§ 667.5, subd. (b)).
Before trial, the prosecution moved to admit evidence Febbo exposed himself in March, October, and November 2007, and October 2009 to other victims. Febbo filed a motion in limine to exclude the evidence.
At a hearing, the prosecutor argued the evidence was admissible pursuant to Evidence Code section 1108, as propensity evidence, and Evidence Code section 1101, subdivision (b), to show intent and lack of mistake or accident. The prosecutor added the evidence would require only one or two additional witnesses and she was not seeking to introduce all his prior bad acts. Febbo's trial counsel contended all the evidence was inadmissible pursuant to Evidence Code section 352 because it was inflammatory and remote.
The trial court ruled evidence of Febbo's prior incidents of indecent exposure were admissible pursuant to Evidence Code sections 1101, subdivision (b), and 1108. The court opined the evidence was similar to the charged offenses. Additionally, the court explained the evidence was relevant to either intent, common plan or scheme, absence of mistake, and potentially knowledge. The court added the evidence was more probative then prejudicial under Evidence Code section 352. The court opined the incidents were not too inflammatory because they occurred in public and they were not too remote. The court found it compelling the prosecution sought to introduce only a couple incidents and not the other three that were arguably also admissible.
Febbo filed a motion to disqualify the trial judge, Judge Thomas A. Delaney, pursuant to Code of Civil Procedure section 170.1. Febbo alleged Judge Delaney could not be fair because he was married to a prosecutor in the Orange County District Attorney's office. At a hearing, the prosecutor opposed the motion, arguing she had never previously met the judge or worked with his spouse. Judge Delaney filed an order striking the statement of disqualification.
In addition to Winchenbach's testimony at trial described above, the prosecution offered evidence Febbo previously exposed himself. On October 29, 2009, Dorian D. and another woman went on to a friend's balcony during a ladies book group gathering. Dorian saw Febbo standing on a neighbor's balcony. His pants were down and he was masturbating while looking through a glass door at a lady sitting on the couch. The two women yelled at Febbo. Febbo turned towards the women and continued masturbating. When the women threatened to call the police, Febbo jumped off the balcony into the alley and fled while pulling up his trousers. The police caught Febbo, and he later suffered a conviction for indecent exposure.
On March 26, 2007, while David Jeffrey was on his balcony with his roommates and his girlfriend, he saw Febbo who appeared suspicious. While Febbo stood between two houses about 20 feet away, Febbo unzipped his pants, pulled out his erect penis, and started masturbating. Jeffrey believed Febbo was watching his girlfriend. Jeffrey called the police, who arrested Febbo a few days later.
During trial, Febbo requested the trial court instruct the jury with disorderly conduct (§ 647) as a lesser included offense to indecent exposure (§ 314). The prosecutor objected, and the trial court recessed to examine the relevant authority. Relying on People v. Meeker (2009) 208 Cal.App.3d 358 (Meeker), the court denied the instruction.
A jury convicted Febbo of all counts and found true the enhancements. The trial court sentenced Febbo to prison for six years and eight months.
DISCUSSION
I. Evidence Code sections 1101 & 1108
Febbo argues the trial court erred by admitting evidence of his prior incidents of indecent exposure. We disagree.
Evidence Code section 1101, subdivision (a), states evidence of an uncharged offense is generally inadmissible to prove criminal disposition. However, Evidence Code section 1101, subdivision (b), allows the trial court to admit "evidence that a person committed a crime . . . or other act when relevant to prove some fact (such as . . . intent, . . .) other than his or her disposition to commit such an act."
Additionally, Evidence Code section 1108, subdivision (a), states, "In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by [Evidence Code] [s]ection 1101, if the evidence is not inadmissible pursuant to [Evidence Code] [s]ection 352." (Italics added.) Evidence Code section 1108, subdivision (d)(1), defines "'[s]exual offense'" as "a crime under the law of a state or of the United States that involved any of the following . . . ." (Italics added.) One of those crimes is indecent exposure (§ 314, subd. (1)). (Evid. Code, § 1108, subd. (d)(1)(A).)
Although uncharged offense evidence might be relevant, this evidence is subject to exclusion pursuant to Evidence Code section 352. Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." For purposes of section 352, "prejudice" means "'evidence that uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues. [Citation.]'" (People v. Heard (2003) 31 Cal.4th 946, 976.) We review the trial court's admission of evidence for an abuse of discretion. (People v. Wesson (2006) 138 Cal.App.4th 959, 969.)
Here, Febbo essentially admits evidence of his incidents of indecent exposure was probative by mounting no real attack to the evidence's relevance. Evidence Febbo previously masturbated outside in the presence of strangers was similar to the charged offenses and was relevant to his intent. (See In re Smith (1972) 7 Cal.3d 362, 366 [to violate § 314 a defendant must harbor a sexual intent].) Moreover, the evidence was admissible as propensity evidence pursuant to Evidence Code section 1108. Instead, Febbo focuses on Evidence Code section 352, as will we.
In People v. Harris (1998) 60 Cal.App.4th 727, 737-741, the court articulated the following factors to determine whether evidence of prior sexual acts was properly admitted: (1) the probative value of the evidence; (2) the inflammatory nature of the evidence; (3) the possibility of confusion of the issues; (4) the amount of time involved in introducing and refuting the evidence of uncharged offenses; and (5) remoteness in time of the uncharged offenses.
Here, as we explain above, the evidence was clearly probative to prove intent (Evid. Code, § 1101, subd. (b)), and as propensity evidence (Evid. Code, § 1108), and thus it was not "superfluous" as Febbo asserts. The prior incidents of indecent exposure were not too inflammatory. They all involved masturbating in public, as did the charged offenses. None of the prior incidents of indecent exposure involved conduct significantly more egregious than the charged offenses and would not evoke an emotional bias against Febbo by portraying him as a predator. Nor would the prior indecent exposure incidents confuse the jury because they were isolated incidents that involved unique facts. Febbo faults the trial court for not expressly addressing the confusion of issues factor, but that is not fatal because an appellate court can infer an implicit weighing on the basis of record indications. (People v. Padilla (1995) 11 Cal.4th 891, 924, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
Here, the trial court engaged in the Evidence Code section 352 weighing, and we can infer it considered all factors, including confusion of the issues. Additionally, it was unlikely the jury would punish Febbo in this case for the prior offenses as he suffered a conviction for the October 2009 incident, and the trial court instructed the jury on the proper use of the prior indecent exposure incidents (CALCRIM No. 1191).
On appeal, Febbo does not assert the presentation of this evidence consumed an undue amount of time. Nor could he. The testimony concerning the prior indecent exposure incidents consumed less than 25 percent of the trial testimony. Finally, the prior indecent exposure incidents were not too remote, occurring seven and five years before the charged offenses and nine and seven years before trial. (People v. Ewoldt (1994) 7 Cal.4th 380, 405 [uncharged act occurred 12 years prior to trial]; People v. Branch (2001) 91 Cal.App.4th 274, 278, 281, 284 [uncharged sexual acts committed over 30 years before charged offenses occurred properly admitted]; People v. Waples (2000) 79 Cal.App.4th 1389, 1395 [uncharged sexual acts that occurred 18 to 25 years before charged offenses not too remote]; People v. Soto (1998) 64 Cal.App.4th 966, 977-978, 990-992 [uncharged sexual conduct that occurred 20 to 30 years before the trial properly admitted].) Thus, the trial court did not err by admitting evidence of his prior incidents of indecent exposure. II. Motion for Judicial Disqualification
Febbo contends the trial judge erred by denying his disqualification motion. Not so.
Febbo's failure to comply with the writ review requirements of Code of Civil Procedure, section 170.3, subdivision (d), precludes him from challenging the denial of his statutory disqualification motion on appeal from the judgment rendered in the trial court. (People v. Carter (2005) 36 Cal.4th 1215, 1243; People v. Brown (1993) 6 Cal.4th 322, 333.)
Assuming for the sake of argument we overlooked the procedural deficiency, Febbo's claim is meritless. Code of Civil Procedure, section 170.1 states a judge must be disqualified in relevant part as follows: "(5) A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge's spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding. [¶] (6)(A) For any reason: [¶] (i) The judge believes his or her recusal would further the interests of justice. [¶] (ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial. [¶] (iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."
We disagree with Febbo Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii), required Judge Delaney's recusal. Although Judge Delaney would be disqualified from presiding over cases in which his wife was a lawyer in the proceeding, there was no evidence she was involved in this case in any way. The prosecutor alleged she had never worked with Judge Delaney's wife, or met Judge Delaney before the trial started. The trial judge did not err by denying Febbo's judicial disqualification motion. III. Jury Instruction on Lesser Included Offense
Febbo asserts the trial court erred by failing to instruct the jury on disorderly conduct (§ 647) as a lesser included offense to indecent exposure (§ 314). Although we agree there was some justification for the instruction, Febbo was not prejudiced.
"On appeal, we review independently the question whether the trial court improperly failed to instruct on a lesser included offense. [Citation.]" (People v. Souza (2012) 54 Cal.4th 90, 113.) "For purposes of determining a trial court's instructional duties, we have said that 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]' [Citations.]" (People v. Smith (2013) 57 Cal.4th 232, 240.)
Section 314, subdivision (1), makes it a crime to, "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[.]" Section 647, subdivision (a), provides that every person "who 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" is guilty of a misdemeanor.
In People v. Swearington (1977) 71 Cal.App.3d 935, 943-945 (Swearington), the court held that if defendant possessed the necessary specific intent to constitute felony indecent exposure, defendant also necessarily committed the misdemeanor offense of lewd conduct. In People v. Curry (1977) 76 Cal.App.3d 181, 186-187 (Curry), the court followed its prior opinion in Swearington, holding "'lewd conduct' is a necessarily lesser included offense within that of indecent exposure."
Following Swearington and Curry, the California Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 (Pryor), clarified the terms "lewd" and "dissolute" as used in section 647, subdivision (a), are synonymous. The Pryor court held these terms indicate behavior that involves the touching of the genitals, buttocks, or female breast for sexual arousal, gratification, annoyance, or offense if the perpetrator knows or should know of the presence of persons who may be offended by the behavior. (Pryor, supra, 25 Cal.3d at p. 256.)
Since Pryor, appellate courts have held lewd conduct is not a lesser and necessarily included offense of felony indecent exposure. (See Meeker, supra, 208 Cal.App.3d at p. 362; People v. Tolliver (1980) 108 Cal.App.3d 171, 173-174.) The Meeker court reasoned it is possible to violate section 314, subdivision 1 (indecent exposure), without violating section 647, subdivision (a) (lewd conduct), since the latter requires "touching" but the former does not. (Meeker, supra, 208 Cal.App.3d at p. 362.) We agree with Meeker and decline Febbo's invitation to follow Swearington and Curry.
At first glance Febbo's claim fares no better under the accusatory pleading test because the information simply mirrored the statutory language. The information did not allege a touching and therefore, Febbo's claim likewise fails under this test. However, Febbo asserts, for the first time in his reply brief, that we must consider the testimony at the preliminary hearing in our accusatory pleading analysis.
"Ordinarily, we do not consider arguments raised for the first time in a reply brief." (People v. Mickel (2016) 2 Cal.5th 181, 197.) We will here. --------
"The due process principle . . . requires that the facts derived from the preliminary hearing be factored into the accusatory pleading analysis." (People v. Ortega (2015) 240 Cal.App.4th 956, 968 (Ortega).) Here, at the preliminary hearing, there was testimony Febbo touched his genitalia and masturbated and thus, there was some justification for instructing the jury with lewd conduct.
However, Febbo was not prejudiced. Although a court has a duty to instruct sua sponte on lesser included offenses which find substantial support in the evidence, "reversal for instructional error requires a showing of prejudice under [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]. [Citation.]" (Ortega, supra, 240 Cal.App.4th at p. 971.) In deciding whether a defendant has suffered prejudice under the Watson standard, we may consider the relative strength of the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 177.)
Here, the evidence was substantial Febbo committed indecent exposure as opposed to lewd conduct. Winchenbach testified Febbo turned on his balcony lights, moved towels to make himself visible, and stood naked on his balcony masturbating while he stared at her. Febbo admitted to police officers he intended to be seen masturbating, was excited by it, and he looked at Winchenbach in the shower. Febbo also committed indecent exposure on two prior occasions. Thus, there was no reasonable probability that if the trial court had instructed the jury on lewd conduct, the jury would have found Febbo guilty only of this lesser crime.
DISPOSITION
The judgment is affirmed.
O'LEARY, P. J. WE CONCUR: BEDSWORTH, J. FYBEL, J.