Filed 3/26/13 P. v. Smith CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                          B234315

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA068237)
         v.
                                                                     ORDER MODIFYING OPINION
BOBBIE SMITH,                                                        AND DENYING REHEARING
                                                                     [no change in the judgment]
         Defendant and Appellant.


THE COURT:

      It is ordered that the opinion filed herein on February 27, 2013, be modified as
follows:

    1. On page 1, in the first paragraph, the name “Alex Ricciardulli” is changed to
       “David Gelfound” so the sentence reads:

                   David B. Gelfound, Judge.

    2. On page 8, second sentence of the first full paragraph, the words “and indecent
       exposure charges” are changed to “charge” so the sentence reads:

                   The evidence was relevant to the attempted rape charge because it tended to
                   show appellant’s disposition to commit sex offense crimes.
3. On page 8, last sentence of the first full paragraph, beginning “The evidence was
   relevant to the” is deleted and the following sentence is inserted in its place:

          The evidence was relevant to the attempted rape charge because it tended to
          show appellant’s disposition to commit rape.

4. On page 10, second sentence of the first full paragraph, after the word “intent” add
   “to commit rape” so the sentence reads:

          The evidence of the uncharged offense was sufficiently similar to support
          an inference that appellant harbored the same intent to commit rape.

5. On page 11, first sentence of the third full paragraph, beginning “Here, there is
   insufficient evidence” is deleted and the following sentence is inserted in its place:

          Here, there is insufficient evidence to support the jury’s determination that
          appellant engaged in a direct but ineffectual act aimed at having sexual
          intercourse with A. against her will by means of force.

6. On pages 11 to 12, the sentence commencing at the bottom of page 11 with “It
   does not support” and ending at the top of page 12 with “A. against her will” is
   deleted and the following sentence is inserted in its place:

          It does not constitute a direct step toward having sexual intercourse with A.
          against her will.

7. On page 12, first full sentence of the first paragraph beginning “Likewise,
   following A.” is deleted and the following sentence is inserted in its place:

          Likewise, following A. to the bathroom and standing with his penis
          exposed would undoubtedly have made A. feel vulnerable and scared, but it
          does not constitute a direct step to having sexual intercourse with A. against
          her will as the evidence also showed that even though appellant was close
          enough to touch A. while in the bathroom, he did not touch her or try to
          touch her, did not say anything sexual or flirtatious, did not look at or say
          anything about his penis, and did not do anything to prevent her from
          leaving the bathroom.




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  8. On page 14, second to last sentence of the last paragraph beginning “Moreover,
     the jury could” is deleted and the following sentence is inserted in its place:

            Moreover, the jury could reasonably conclude that the exposure was
            purposeful and done for a lewd purpose.

     There is no change in the judgment.

     Appellant’s petition for rehearing is denied.




MALLANO, P. J.                        CHANEY, J.                         JOHNSON, J.




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