Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court No. 07CF3458 of Orange County, Richard M. King, Judge.
Robert Little, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Marissa Bejarano and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
The trial court did not err in admitting evidence of defendant’s possession of methamphetamine. Because there are no record references, we deem defendant’s argument of prosecutorial misconduct to be waived. Defendant is not entitled to a dismissal. We affirm.
I
FACTS
Defendant Hyuh Woo Lee pled guilty to possession of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a) as charged in count three of the amended information. Two days later, a jury found defendant guilty of indecent exposure in violation of Penal Code section 314, subdivision (1), and public nudity in violation of Orange County Codified Ordinance section 3-12-3. The court deferred entry of judgment on the drug conviction pursuant to Penal Code section 1000, and suspended sentence and imposed four years of probation, with jail time limited to time served on the remaining convictions.
Alicia Kasper is a stylist at Bushiere Salon in Orange. On October 17, 2007, around 9:00 o’clock in the evening, she saw a man who appeared to be “waiting for somebody.” In the salon at the time, there were three women hairdressers and two women customers. A little later, one of the other hairdressers said, “There is a naked man in the salon.” The “fully nude” man went into “the closet where we send the ladies to change their garments” and sat down “Indian-style.” Kasper and another stylist told the man to get up and leave. The man apologized and left. The man went outside and sat inside a car, but did not leave. The clients were uncomfortable about leaving with the naked man right outside. Kasper said “we had no choice but to call the police.” Defense counsel asked Kasper questions about whether the man looked dazed, disoriented and “like a zombie” when he was in the salon. Kasper said he did.
Donald E. Lockridge, Jr., has been a peace officer with the City of Orange for 17 years. He was dispatched to the scene and found defendant sitting in his car. Lockridge stated: “I asked him to open the door so that I could talk to him, and when he opened the door, I saw that he was seated in the vehicle completely nude.” The women in the salon told Lockridge defendant was the man who came into the salon. When he was asked to describe what defendant’s demeanor was that night, Lockridge said, “He was calm. He didn’t appear to be agitated or excited, but he was a little slow in responding to directions.” Defendant’s pants were on the floor of the car, and Lockridge directed him to put them on.
At the station, defendant told Lockridge he went into the salon to get the women’s attention, to try to get one of the women to have sex with him and that “he had planned on going to the chiropractor, which was a business located adjacent to the salon, but it was closed, and so he went to the hair salon, but he hadn’t planned on doing anything bad.” Defendant explained that he was waiting in the car “hoping that one of the women would come out to the car and want to go for a ride with him.”
Lockridge searched defendant and found “two pieces of a crystalline substance that appeared to be methamphetamine” in his wallet. Tests showed positive for methamphetamine. Lockridge asked defendant why he had a controlled substance in his possession, and he said “he had brought it with him to get high after getting a massage at the chiropractor.”
Defendant told Lockridge about an incident three or fours months prior: “He stated that he had been arrested in Anaheim for a similar incident where he was found nude at a woman’s apartment.” Defendant also said “the police department had lodged him under a [Welfare and Institutions Code section] 5150, which is a state code for a mental patient, and he was treated by a doctor at that facility, released within 24 hours. He was prescribed a medication to control his urges and directed to contact his personal physician.”
During closing argument, defense counsel argued defendant “didn’t have the mental state that’s required to be found guilty” and that “[h]e was dazed and disoriented because he is mentally ill.” Counsel added: “These are the behaviors that show you that he had a mentally ill mind state, not a sexual mind state.”
II
DISCUSSION
Evidence of Methamphetamine use
Defendant contends the court should have excluded evidence of his plea to count three as well as his statements regarding methamphetamines. The Attorney General argues evidence of defendant’s methamphetamine possession was relevant to demonstrate defendant had the capacity to form intent, and that its probative value was not substantially outweighed by prejudice.
On appeal, defendant argues that Evidence Code section 350 provides “no evidence is admissible except relevant evidence” and that once he pled guilty to possession of methamphetamine, “the court should have excluded any evidence that was not relevant.” He also argues “[t]he fact that Mr. Lee possessed methamphetamine is not a relevant fact to prove any of the elements of Penal Code Section 314(1) or OCCO 3-12-3,” and that the evidence cannot survive an analysis under Evidence Code section 352.
The day defendant pleaded guilty to possession of methamphetamine, he filed a motion asking the court’s permission to change his plea on that count and to exclude evidence of drug possession from the jury because it was “not a relevant fact to prove any of the elements of Penal Code Section 314(1).” He argued “the only reason the prosecution seeks to introduce evidence related to Mr. Lee’s possession of methamphetamine and his anticipated guilty plea is as evidence of bad character.”
The minute order from the day of his plea states that defendant’s motion to withdraw his guilty plea to count three is granted, and that his motion to exclude evidence he possessed methamphetamine is denied. The court reporter’s record reflects the court granted defendant’s motion to exclude from the jury the fact that he pled guilty to possession of methamphetamine, but denied his motion to exclude the discovery of methamphetamine on him when he was arrested.
In making its rulings, the court heard lengthy argument and gave detailed reasons. The court pointed out that a specific intent crime was involved, and that defense counsel “did raise questions about mental illness in our discussion we had in chambers.” Included in its reasons, the court stated: “[T]his is exculpatory information, and it’s exculpatory information that not only has to do with the mental state which the court will give - and I’m looking for it right now - 3428, mental impairment. ‘You have heard evidence the defendant may have suffered from a mental disease, defect or disorder.’ The jurors can consider that in determining whether defendant has the intent. 3426, voluntary intoxication. Again, the jurors are to consider this in a limited way. And so if I have this evidence that can be used for the benefit of the defendant, the only inference I can draw is that the prejudicial effect even becomes more and more diminished.”
“Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.] Where, as here, a discretionary power is statutorily vested in the trial court, its exercise of that discretion ‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; People v. Cain (1995) 10 Cal.4th 1, 33.)
For purposes of analysis, “‘prejudicial’ is not synonymous with ‘damaging,’ but refers instead to evidence that ‘“uniquely tends to evoke an emotional bias against defendant”’ without regard to its relevance on material issues. [Citations.]” (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)
“The weighing process under section 352 depends upon the trial court’s consideration of the unique facts and issues of each case, rather than upon mechanically automatic rules. [Citation.] Moreover, the trial court’s ruling under section 352 will be upset only if there is a clear showing of an abuse of discretion. [Citations.]” (People v. Stewart (1985) 171 Cal.App.3d 59, 65-66.)
Here the trial court was informed by defense counsel that the defense would include an argument defendant was mentally ill and, thus, unable to form a specific intent. But defendant gave the police officer a reason why he possessed methamphetamine, which demonstrated that defendant was able to form the specific intent to get high after a massage, which was circumstantial evidence he was capable of forming the specific intent to enter the salon nude for sexual gratification. As noted by the court, the jury was instructed about voluntary intoxication, a circumstance which tended to have an exculpatory effect should the jury have believed defendant had not been able to form a specific intent due to intoxication. Additionally, the court excluded the fact defendant pled guilty to possession of methamphetamine. Under the circumstances in this record, we cannot conclude the trial court abused its discretion when it permitted evidence that defendant possessed methamphetamine.
Nonetheless, even if there had been error, we conclude it was harmless because a result more favorable would not have occurred had the evidence been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836.) The evidence against defendant was strong. He was first observed appearing to be waiting for someone. A little later, he was seen naked inside the salon, a circumstance which supports an inference he looked inside and saw only women were inside. Defendant’s statements to Lockridge about hoping one of the women would have sex with him, and waiting outside to find out if one of them would want to take a ride with him, were also strong evidence he had the specific intent to receive sexual gratification. The only evidence of mental illness was through Lockridge who recited defendant’s statement he had previously been detained under Welfare and Institutions Code section 5150. No medical experts were called to testify regarding defendant’s mental health. Because the evidence against defendant that he had the intent to receive sexual gratification was strong, the jury would have reached the same conclusion even if the court had excluded evidence he possessed methamphetamine that night.
Alleged Prosecutorial Misconduct
Defendant contends there was prosecutorial misconduct, and that his counsel “objected to the prosecution’s closing arguments when the prosecution attacked the lack of mental illness evidence by the defense.” He also says the prosecutor “made several statements regarding the lack of evidence concerning the mental illness.” However, he provides no record references for any such statements.
Rule 8.204(a)(1)(C) of the California Rules of Court requires defendant to “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Because defendant’s argument about prosecutorial misconduct is not supported with record references, we find the argument to be waived. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
Public Nudity Conviction
Defendant next contends his conviction for violating Orange County Codified Ordinance section 3-12-3 “should be dismissed because the violation is a lesser included offense of Penal Code Section 314 (1) (Indecent Exposure).” He argues this court should “grant a judgment of acquittal” to him for the greater offense.
Penal Code section 314 states: “Every person who willfully and lewdly, either: [¶] 1. Exposes 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....”
Orange County Codified Ordinance section 3-12-3: “Every person over the age of ten (10) years is guilty of a misdemeanor who is nude and exposed to public view in or on any public right-of-way, public park, public beach or waters adjacent thereto, or other public land, or in or on any private property open to public view from any public right-of-way, public beach, public park, or other public land. [¶] The provisions of this section shall not apply to any acts which take place wholly within a fully enclosed building or any portion thereof; and nothing contained herein shall be construed to prohibit any act or acts which are expressly authorized or not prohibited by the Penal Code of the State of California.”
If a crime cannot be committed without also committing a lesser offense, the latter is a lesser included offense within the former. (People v. Lopez (1998) 19 Cal.4th 282, 288.) “We have applied two tests in determining whether an uncharged offense is necessarily included within a charged offense: the ‘elements test’ and the ‘accusatory pleading’ test. Under the elements test, if the statutory elements of the greater offense include all of the statutory elements of the lesser offense, the latter is necessarily included in the former. Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading include all of the elements of the lesser offense, the latter is necessarily included in the former. [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) Both parties agree the elements test, and not the accusatory pleading test should be applied.
The Attorney General cites People v. Tolliver (1980) 108 Cal.App.3d 171, as support for the argument violation of the county ordinance against public nudity was not a lesser included offense of indecent exposure in violation of Penal Code section 314, subdivision (1). Unlike the situation here, Tolliver did not involve violation of an Orange County ordinance, but violation of Penal Code sections 314, subdivision (1) and 647, disorderly conduct, a statute similar to the ordinance involved here. A man who exposed himself in his living room to an Avon lady was charged with indecent exposure. He continued in his conduct until the two reached the front door as the woman was exiting. It was the defendant’s argument that, since a view from the front door was a place exposed to public view, the trial court should have sua sponte instructed the jury on disorderly conduct. (Id. at pp. 172-173.) The court did not buy that argument.
The Tolliver court analyzed that situation as follows: “All violations of section 647, subdivision (a) must occur ‘in any public place or in any place open to the public or exposed to public view.’ A violation of section 314, subdivision 1, however, may occur ‘in any public place, or in any place where there are present other persons to be offended or annoyed thereby.’ (Italics added.) The latter phrase is directed at less than a ‘public’ place and specifically applies to the factual setting at hand. By inclusion of any place where there are persons who may be offended or annoyed by the perpetrator’s indecent exposure the Legislature has made a logical and rational distinction between disorderly conduct and indecent exposure. Indecent exposure in the context of the present case in which the perpetrator enticed his victim to a ‘private’ place where escape was restricted is a much more inherently dangerous offense given the seclusion involved. Thus, we hold that a violation of section 647, subdivision (a), is not a necessarily lesser included offense to section 314, subdivision 1, and there was no error in the trial court’s omission to instruct sua sponte on such violation.” (People v. Tolliver, supra, 108 Cal.App.3d at pp. 173-174.)
A similar situation exists here where the facts demonstrate the ordinance is not necessarily included within the statute. Defendant exposed himself in a public place, which was “wholly within a fully enclosed building,” that is, the beauty shop, a situation which renders the ordinance inapplicable. He also exposed himself to public view on public land as well when he went outside in the nude.
Defendant argues People v. Montoya (2004) 33 Cal.4th 1031, supports his contention. In Montoya, the greater offense was carjacking and the lesser offense was unlawful taking of a vehicle. The court analyzed the situation as follows: “Applying the elements test to the two offenses here, the crime of unlawfully taking a vehicle is not a lesser included offense of carjacking because a person can commit a carjacking without necessarily committing an unlawful taking of a vehicle.” (Id. at p. 1035.)
Again, we have a similar situation. The lesser offense is not a lesser included offense because a person can violate Penal Code section 314, subdivision (1) without necessarily also violating Orange County Codified Ordinance section 3-12-3. Under these circumstances, it was not necessarily a lesser included crime, the court did not err and defendant is not entitled to a dismissal.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: RYLAARSDAM ACTING P. J., FYBEL, J.