Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-080480-7
Marchiano, P.J.
A jury convicted defendant Willis Jennings Fowler of committing a lewd act on a child under 14 (Pen. Code, § 288, subd. (a)) and misdemeanor indecent exposure (Pen. Code, § 314, subd. (1)). The trial court sentenced him to three years in prison on the felony charge and 85 days in county jail, with credit for 85 days served, on the misdemeanor. Defendant contends there is insufficient evidence to support the misdemeanor conviction. We disagree and affirm.
I. FACTS
Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment of conviction, and presume in support of the judgment the existence of every fact which the court or jury could reasonably find from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)
Defendant operated a business painting house numbers on sidewalk curbs, and then asking the homeowners for a voluntary donation.
The victim, Jane Doe, turned 13 in September 2007. On a day in early October 2007, about 9:00 p.m., defendant came to the door of Jane Doe’s house in Richmond and asked her for a donation for his painting the house number on the curb. Defendant asked Jane Doe if she and her female cousin, who was at Jane Doe’s house that night, would like to work for him painting house numbers. Defendant told Jane Doe he would pay her $10 an hour and she could get school credit. Jane Doe agreed to go with defendant the next day.
Defendant returned the next day with Francisco, a friend of Jane Doe’s cousin. Defendant, Francisco, Jane Doe and her cousin drove in defendant’s car to Pittsburg. They stopped at a McDonald’s where defendant paid for the food. Then they drove to a residential neighborhood. Defendant told Jane Doe that her job was to paint house numbers on sidewalk curbs.
The next day defendant, again with Francisco, picked up Jane Doe and her cousin. They again drove to a McDonald’s where defendant bought food. They drove to a residential neighborhood, where defendant told the children to pass out flyers to the houses announcing that the group would be painting house numbers on the curbs.
About 6:00 p.m. that day, Francisco and Jane Doe’s cousin got out of defendant’s car. Defendant, alone with Jane Doe, drove to a secluded area. It was a dead-end street. There were no houses, no cars, and no people.
Defendant pulled over to the side of the road. He told Jane Doe he was going to teach her how to ask for money, i.e., to work on her sales pitch. Defendant sat in the driver’s seat, Jane Doe in the passenger seat. Both faced to the front. Defendant touched Jane Doe on the stomach with his left hand, above the navel, and pushed with his fingers. He told Jane Doe she needed to “get [her] voice” from her stomach area, and to “let [her] voice come out.” Jane Doe was still facing to the front when defendant first touched her.
Defendant then touched her with his right hand below her navel, and moved his right hand close to her “intimate part.” About 2½" above her intimate part, defendant pressed with his fingers. He moved his left hand away.
On direct examination, Jane Doe testified that after defendant touched her he told her to turn away, to her right, facing the passenger window. She looked back and saw defendant masturbating, moving his left hand up and down on his exposed penis. On redirect, Jane Doe testified that defendant was already masturbating when he asked her to turn away.
Defendant ejaculated and told Jane Doe not to say anything to her mother. Jane Doe was scared and left the car. She eventually told her aunt, who called the police.
Detective Solzman was assigned to investigate the case. Jane Doe picked defendant out of a photo lineup. Solzman interviewed defendant, who said he recruited Jane Doe and other children her age to help him in his curb painting business. Defendant admitted he drove Jane Doe to a secluded spot on a dead-end street. He said he wanted to teach her a sales pitch. He said he put his hand on the area of her diaphragm, but admitted he may have touched her on her vaginal area.
Inspector Conaty also interviewed defendant. During the interview, defendant described Jane Doe as very attractive, and told Conaty “she was hot.” Defendant again admitted recruiting Jane Doe for his business. He admitted touching her as part of coaching her on her sales pitch, but also admitted touching her vaginal area over her clothing. He then touched her bare stomach, which caused him to “become aroused.” He claimed that at this point both he and Jane Doe still faced forward.
Defendant told Conaty he moved his erect penis outside the leg of his shorts, exposing it, and masturbated for five minutes until he ejaculated. He said something to the effect that he felt guilty for doing that in front of Jane Doe. He said he did not intend for her to see him masturbate, but admitted she must have seen him or she wouldn’t have reported it to the police. He told Conaty that he directed Jane Doe to turn away when he started to masturbate.
Defendant testified. He admitted taking Jane Doe to the dead-end street to teach her a sales pitch. He touched her stomach to illustrate speaking from the diaphragm. He told her to turn away to her right. He claimed he accidentally touched the bare skin of her stomach and became aroused. He masturbated, thinking she could not see him. He testified that he “thought the whole time that she did not see anything and I was doing it on my side for my own person.”
II. DISCUSSION
Defendant contends there is insufficient evidence to support his misdemeanor conviction for indecent exposure, because there is no evidence of the necessary element of his intent to draw public attention to his genitals. (See In re Smith (1972) 7 Cal.3d 362, 366.) We disagree because the necessary evidence is found in the victim’s testimony.
The standard of review of the sufficiency of the evidence to support a conviction is well known. (See People v. Mincey (1992) 2 Cal.4th 408, 432.) The sole function of the appellate court is to consider the evidence in the light most favorable to the judgment, presume in support of the judgment every fact that can be reasonably deduced from the evidence, and “determine... whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt.” (Ibid.; see People v. Jones (1990) 51 Cal.3d 294, 314.) The evidence must be “reasonable, credible, and of solid value.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
Defendant argues the evidence shows that Jane Doe was facing forward when he started masturbating, that he then asked her to turn away, and that he never intended her to see him. But Jane Doe also testified that she saw defendant had already begun to masturbate before he asked her to turn away. In any case, an adult who drives a 13-year-old girl to a secluded spot, lewdly touches her, and then begins to masturbate with her right next to him on a car seat, can hardly argue with any degree of success that he did not intend to draw her attention to his genitalia. The jury considered this question of intent and resolved it against defendant. Substantial evidence supports the conviction for indecent exposure.
III. DISPOSITION
The judgment of conviction is affirmed.
We concur: Margulies, J., Dondero, J.