Opinion
G053169
06-22-2017
THE PEOPLE, Plaintiff and Respondent, v. RYAN ERIC GALLIHER, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne McGinnis and Joy Utomi, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14WF4144) OPINION Appeal from a judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed in part and reversed in part. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne McGinnis and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Ryan Eric Galliher of attempted lewd conduct on a child under the age of 14 (Pen. Code, §§ 288, subd. (a), 664, subd. (a); count one), contacting a child with the intent to commit a lewd act (§ 288.3, subd. (a); count two), six misdemeanor counts of indecent exposure (§ 314, subd. (1); counts three through seven, nine), and one count of misdemeanor engaging in lewd conduct (§ 647, subd. (a); count eight). He was placed on probation for five years and sentenced to one year in county jail.
All further statutory references are to the Penal Code.
As to count one, Galliher argues there was insufficient evidence to support his conviction and the trial court erred by failing to give a sua sponte jury instruction. His contentions lack merit. We affirm the judgment as to count one in all respects.
Galliher contends his convictions for counts six and seven should be consolidated into a single count of indecent exposure. Both counts arose out of a single incident of indecent exposure. Two people witnessed the same exposure, and Galliher was charged with one count as to each witness. The Attorney General concedes that the single incident of exposure gave rise to only one crime. The judgment as to count seven is reversed.
I
FACTS
For clarity, we discuss only the facts pertinent to the charges on appeal. --------
In February of 2014, 12-year-old J.L. was walking home from school through the Bolsa Chica wetlands in Huntington Beach. J.L. spotted a man she had seen on a prior occasion. At the earlier incident, J.L. witnessed the man touch his penis over his shorts. On this instance, the man exposed his penis to J.L. through a hole in his shorts from a distance of about five feet. He asked her, "is it big enough?" and "do you want to touch it?" J.L. did not respond to his questions and walked away. After J.L. encountered the man for a third time in the wetlands, where he also exposed his penis to her, she called 911 and reported the encounters to police. J.L. initially did not pick Galliher out of a photo lineup, but at a second photo lineup she identified him as the man she saw during each incident. An information charged Galliher with attempted lewd conduct on a child under the age of 14.
At trial, Galliher's wife and brother testified on his behalf and offered evidence as to his whereabouts on the date count one was committed. Others testified as to his moral character.
Counts Six and Seven
In October 2014, two cross-country runners were training in the wetlands. Both women saw a naked, or partially naked, man. One of the runners identified Galliher in a photo lineup, but the other runner was unable to identify him.
An information charged Galliher with six counts of indecent exposure in violation of section 314, subdivision (1). Two of those were counts six and seven. Those counts alleged Galliher "willfully, lewdly, and unlawfully expose[d] his/her person and private parts in a public place and a place where there were present other persons to be offended and annoyed thereby . . . ." The only difference between the language in counts six and seven was the allegation of different victims.
II
DISCUSSION
Sufficient Evidence Supported Galliher's Count One Conviction
Galliher contends there was insufficient evidence to support his conviction for count one because his actions were merely preparatory. We reject Galliher's argument.
In reviewing a claim of insufficient evidence, we review the record in the light most favorable to the judgment to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Davis (2009) 46 Cal.4th 539, 606.) "'A judgment of conviction will not be set aside for insufficiency of the evidence to support the jury's verdict unless it is clearly shown there is no basis on which the evidence can support the conclusion of the jury. The credibility of witnesses and the weight to be accorded to the evidence are matters to be determined by the trier of fact.'" (People v. Cardenas (1994) 21 Cal.App.4th 927, 938.)
"To sustain a conviction of attempted violation of section 288 [, subdivision] (a), the prosecution has the burden of demonstrating (1) the defendant intended to commit a lewd and lascivious act with a child under 14 years of age, and (2) the defendant took a direct but ineffectual step toward committing a lewd and lascivious act with a child under 14 years of age." (People v. Singh (2011) 198 Cal.App.4th 364, 368.) The act must move beyond mere preparation, but it does not need to be the "ultimate step toward commission of the crime," or even satisfy an element of the crime. (People v. Superior Court (Decker) (2007) 41 Cal.4th 1, 8 (Decker ).) Where a defendant's intent is clear, only slight acts towards commission of the crime are sufficient to constitute attempt. (Ibid.)
Galliher argues his words to 12-year-old J.L., "is it big enough" and "do you want to touch it," constituted mere preparation and were not an overt act towards the commission of the offense. In support of his argument, Galliher relies on People v. La Fontaine (1978) 79 Cal.App.3d 176 (La Fontaine). La Fontaine held that solicitation of a lewd act, without more, was insufficient to constitute an attempt to commit a lewd act. (Id. at pp. 182-183.) A number of courts have distinguished, criticized, and refused to adopt the La Fontaine holding. (See, e.g., People v. Herman (2002) 97 Cal.App.4th 1369, 1386-1387 (Herman) [rejecting the holding of La Fontaine]; Hatch v. Superior Court (2000) 80 Cal.App.4th 170, 188 [rejecting argument from La Fontaine that defendant was not guilty of attempt to violate section 288 because he made no attempt to touch the victim]; People v. Ansaldo (1998) 60 Cal.App.4th 1190, 1196 [stating La Fontaine has not been adopted in any other published decision and may be due for reevaluation in light of later developments].)
In La Fontaine, the Court of Appeal determined the defendant's conduct was insufficient to constitute an attempted violation of section 288. (La Fontaine, supra, 79 Cal.App.3d at p. 180.) There, the defendant was giving the 13-year-old victim a ride home when he ask if the victim wanted to make some money. (Id. at p. 179.) The victim asked how, and the defendant said, "'I give you a blow job.'" (Ibid.) The victim said no, got out of the car, and went home. (Id. at pp. 179-180.) At the time of this conversation, the defendant was seated close to the victim in the car, but never touched the victim's body or made movement towards the victim's body. (Id. at p. 180.)
We decline to follow La Fontaine. "[A]n invitation to participate in the defendant's commission of a crime [that] consists only of words does not mean it cannot constitute an 'act' toward the completion of the crime, particularly where the offense by its nature consists of or requires the requested type of participation." (Herman, supra, 97 Cal.App.4th at p. 1387.) The evidence showed Galliher intended to commit a lewd act on J.L. He made multiple direct acts towards committing the crime. Galliher went to the wetlands during the day, at or near a location he had seen J.L. before. Once he encountered J.L., he exposed his naked penis to her, asked her if it was "big enough," and if she wanted "to touch it." This proposition was committed in close physical proximity to J.L. Galliher was in a position to immediately commit the lewd act. This unambiguous intent constituted an immediate step towards committing the offense. These facts demonstrate there was substantial evidence Galliher attempted to commit a lewd act upon J.L. The Trial Court Did Not Err By Failing to Instruct the Jury on Section 647 .6
Galliher contends annoying or molesting a child in violation of section 647.6, subdivision (a), is a lesser included offense of section 288, subdivision (a). He argues the trial court was required to give a sua sponte instruction on section 647.6, subdivision (a), and its failure to do so constituted reversible error. Because section 647.6, subdivision (a), is not a lesser included offense of section 288, subdivision (a), the court did not err by failing to instruct on 647.6, subdivision (a).
We review a claim that the trial court failed to instruct on a lesser included offense de novo. (People v. Woods (2015) 241 Cal.App.4th 461, 475.) Under this standard, we determine "whether, in assessing and weighing the evidence independently, the jury could have reasonably concluded that [the defendant] committed" the lesser crime but not the greater. (Ibid.)
Trial courts have a sua sponte obligation to instruct on lesser included offenses where the evidence, if accepted by the trier of fact, demonstrated the defendant was guilty of the lesser offense but not the greater. (People v. Lopez (1998) 19 Cal.4th 282, 288 (Lopez).) Courts employ one of two tests, the elements and the accusatory pleadings tests, to determine whether a lesser offense is included in the greater charged offense. (Id. at pp. 288-289.) "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 349.) The accusatory pleadings test looks to whether the charging allegations include language that describes the crime in a manner that if the greater offense is committed, the lesser offense is also committed. (Lopez, supra, 19 Cal.4th at pp. 288-289.)
Under the elements test, we compare section 288, subdivision (a), to section 647.6, subdivision (a). Section 288, subdivision (a), states "any person who willfully and lewdly commits any lewd or lascivious act . . . [upon] a child who is under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child, is guilty of a felony . . . ." "Any touching of a child under the age of 14 violates this section, even if the touching is outwardly innocuous and inoffensive, if it is accompanied by the intent to arouse or gratify the sexual desires of either the perpetrator or the victim." (Lopez, supra, 19 Cal.4th at p. 289.)
Section 647.6, subdivision (a), on the other hand, outlines a misdemeanor offense for a "person who annoys or molests any child under 18 years of age." This section does not require touching, but instead encompasses acts that would unhesitatingly disturb or irritate a normal person and conduct that is motivated by an unnatural or abnormal sexual interest in the child victim. (See Lopez, supra, 19 Cal.4th at p. 289.)
The language of the two statutes disclose different intent requirements. Section 647.6, subdivision (a), requires objectively annoying conduct, while section 288, subdivision (a), requires a subjective, specific intent to arouse or gratify a defendant's own sexual desire or that of the child's. "Under the elements test for lesser included offenses, the criminal conduct that section 288, subdivision (a), prohibits could occur without necessarily also violating section 647.6, subdivision (a). Section 288, subdivision (a), requires a touching, even one innocuous or inoffensive on its face, done with lewd intent. Section 647.6, subdivision (a), on the other hand, requires an act objectively and unhesitatingly viewed as irritating or disturbing, prompted by an abnormal sexual interest in children. Clearly, not every touching with lewd intent will produce the objective irritation or annoyance necessary to violate section 647.6." (Lopez, supra, 19 Cal.4th at p. 290.) Under the elements test, section 647.6, subdivision (a), is not a lesser included offense of section 288, subdivision (a).
Galliher argues the elements test is not definitive, and claims this case is distinguishable under the accusatory pleadings test. He contends because the information did not allege a specific manner of the attempted touching, the allegation necessarily meets the statutory definition of annoy or molest under section 647.6, subdivision (a). We disagree.
The information alleged that Galliher "willfully, lewdly, and unlawfully attempt[ed] to commit a lewd and lavicious act upon and with the body of [J.L.] . . . with the intent of arousing, appealing to, and gratifying the lust, passions, and sexual desires of [Galliher] and the child." This language tracks section 288, subdivision (a). As discussed above, the mens rea of section 288, subdivision (a), and section 647.6, subdivision (a), are distinct. The language in the information does not necessarily describe a violation of section 647.6, subdivision (a).
Under either the elements or accusatory pleadings tests, section 647.6, subdivision (a), is not a lesser included offense of section 288, subdivision (a). Therefore, the trial court had no sua sponte duty to instruct on section 647.6, subdivision (a).
Galliher's Convictions for Counts Six and Seven Arose From A Single Offense of Indecent Exposure
Galliher cannot be convicted of both counts six and seven because the basis of those counts was a single incident of indecent exposure witnessed by two different people. A continuous act of indecent exposure cannot sustain multiple convictions, even where multiple victims witness the exposure. (People v. Smith (2012) 209 Cal.App.4th 910, 915 (Smith).) Section 314, subdivision (1), prohibits the exposure itself, penalizing any person who willfully and lewdly "[e]xposes 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." Indeed, a defendant can violate section 314, subdivision (1) "where no witnesses actually see the defendants' genitalia." (Smith, supra, 209 Cal.App.4th at p. 915.)
In Smith, the defendant was convicted of two counts of indecent exposure stemming from an incident where he exposed himself outside a residential window. (Smith, supra, Cal.App.4th at p. 912.) The indecent exposure was continuous and witnessed by two people inside the residence. (Id. at p. 916.) The prosecution argued the incident constituted two separate offenses because the opening and closing of a window curtain caused a break between each act of exposure. (Ibid.) The Court of Appeal disagreed, determining there was no temporal separation between the offenses as the record showed the defendant exposed himself in the same spot, and the only intervening act was the observers opening and closing the curtain. (Id. at pp. 916-917.) Because exposure is the gravamen of an indecent exposure offense, the defendant only indecently exposed himself once. (Id. at p. 917.) The Court of Appeal reversed one of the indecent exposure convictions and modified his sentence to strike one of the consecutive prison terms. (Ibid.)
Similarly here, the indecent exposure to the two runners constituted a single offense. The record reflects Galliher's exposure was continuous and the only intervening acts were by the witnesses, who happened to run past him at slightly different times. Because both charges stemmed from the same act of indecent exposure, we reverse his count seven conviction.
III
DISPOSITION
Galliher's count seven conviction is reversed. In all other respects, the judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. FYBEL, J.