Filed 4/21/14 P. v. Bailey CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A140282
v.
LESLIE M. BAILEY,                                                    (San Francisco City and County
                                                                     Super. Ct. No. 220268)
         Defendant and Appellant.


         A Bay Area Rapid Transit (BART) train operator observed Leslie M. Bailey
masturbating in the train she was operating. Shortly thereafter, Bailey approached the
operator at the window as she was observing the train platform, with his erect penis
exposed. Bailey was charged with two counts of felony indecent exposure with a prior
conviction (Pen. Code, § 314, subd. (1)) 1 and one count of engaging in lewd conduct, a
misdemeanor (§ 647, subd. (a)). A jury found Bailey guilty of engaging in lewd conduct
and not guilty on the first count of indecent exposure. The jury was unable to reach a
verdict on the second count of indecent exposure and the court later dismissed that count
on the People’s motion. The court sentenced Bailey to unsupervised probation,
conditioned on a county jail term that was satisfied by credit for time served.
         Bailey’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25
Cal.3d 436 (Wende) (see Anders v. California (1967) 386 U.S. 738), in which he raises
no issue for appeal and asks this court for an independent review of the record. (See also


         1
             Unless otherwise specified, all statutory citations are to the Penal Code.

                                                             1
People v. Kelly (2006) 40 Cal.4th 106, 124.) Counsel attests that Bailey was advised of
his right to file a supplemental brief. Bailey has not exercised that right.
       We have examined the entire record in accordance with Wende. We agree with
counsel that no arguable issue exists on appeal and affirm.
                                     BACKGROUND
I. Procedural Background
       In an amended information, filed on October 8, 2013, the People charged Bailey
with three counts: (1 and 2) felony indecent exposure with a prior conviction (§ 314,
subd. (1)) and (3) engaging in lewd conduct, a misdemeanor (§ 647, subd. (a)). Attendant
to counts 1 and 2, both of which named Lori Hudson as the victim of Bailey’s indecent
exposure, 2 the information alleged prior convictions for: (1) misdemeanor indecent
exposure (§ 314, subd. (1)) on August 11, 2006, and (2) felony indecent exposure (§ 314,
subd. (1)) on June 5, 2007. Attendant to count 3, the information alleged the 2007
conviction for felony indecent exposure as a prior felony with a state prison sentence,
pursuant to section 667.5, subdivision (b).
       A jury found Bailey not guilty on count 1and guilty on count 3, but could not
reach a verdict on count 2.
       On October 21, 2013, the court suspended imposition of sentence, granted
unsupervised probation for three years, conditioned on serving a term of 166 days in
county jail, and imposed standard fees and fines. Bailey received 166 days of credit for
time served. The court dismissed count 2 on the People’s motion.
       Bailey timely filed a notice of appeal on November 12, 2013.
II. Factual Background
       Lori Hudson, a BART train operator, stopped her train at the station at Mission
and 16th Streets in San Francisco, California, about 1:24 p.m. on May 8, 2013. Bailey
entered the train, proceeded to a seat directly behind Hudson’s cab area, dropped to his

       2
         The amended information differed from the original information, filed on May
31, 2013, in identifying only Hudson as the victim, instead of “Lori Hudson and BART
patrons.”

                                              2
knees facing Hudson, and began to “gyrate on the seat,” “simulating a sex act with the
seat.” Bailey’s pants were halfway down and Hudson could see his red thong underwear.3
       At Civic Center Station, the next station, Bailey left the train, but reentered before
Hudson closed the doors and went back to the same seat. Bailey laid across the seat and
began masturbating, with his feet hanging in the aisle and his pants down almost to his
knees. Hudson saw Bailey’s erect penis and saw Bailey touching his penis.
       As Hudson pulled into the next station at Powell Street, she called BART “central”
to report the incident. When Hudson turned around and observed Bailey again, she saw
smoke coming from his seat, and Hudson reported this as well. Hudson did not see a
cigarette or a pipe and did not smell cigarette smoke. Hudson was told to hold her
position. Bailey then left the train; Hudson reported that fact and was given permission
to proceed.
       Hudson had her head outside the window to observe passengers entering and
leaving the train. Bailey approached and asked if he could get back on the train, saying
he wouldn’t smoke again and was “just trying to get home.” As Bailey talked to Hudson,
a foot away from her, his erect penis was exposed, but he was not touching it. Hudson
asked Bailey to step away and Bailey went to the opposite platform. Hudson drove her
train from the station.
       When Hudson reached the Dublin BART station she returned on another train to
Powell Street station, where she made a statement and identified Bailey.
       On May 8, 2013, BART Police Officer Jeffrey Zwetsloot was at Montgomery
Street station on a train bound for Daly City when he received a call about a man
masturbating on a train bound for Dublin who had left the train at Powell Street station.
As part of his uniform, Zwetsloot wears a camera mounted on his collar that records
audio and video. Zwetsloot proceeded to Powell Street station, where he and two other
BART officers, Sergeant Carter and Alberto Alvarez, searched the station. After


       3
        A police officer testified that he believed Bailey was wearing red boxer shorts
when he was arrested.

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searching the BART areas, Zwetsloot and Carter proceeded to the Muni level.4 At the
elevator on the Muni level, Zwetsloot saw a “subject matching the description given by
dispatch.” At trial, Zwetsloot identified Bailey as the subject he encountered at Powell
Street station.
       Zwetsloot directed Bailey to face away from him and place his hands behind his
head. Bailey, who seemed “very nervous” and “was sweating profusely,” complied.
Zwetsloot smelled no alcohol on Bailey and Bailey was not smoking as he approached.
Zwetsloot detained Bailey and placed him in handcuffs for safety reasons. Zwetsloot
performed a patdown search for weapons and found none. Intake deputies at the jail later
found a crack pipe in Bailey’s possession.
       The entire encounter with Bailey was recorded on Zwetsloot’s camera and the
recording was played at trial. In the recording, Bailey denied masturbating and claimed
to be by the elevator because it was a convenient place to urinate. There was, however,
no urine on the floor. Although it was not visible in the recording, Zwetsloot saw
Bailey’s erect penis protruding through the bottom of his shirt as he conducted the
patdown search. Even though the police were not questioning Bailey, Bailey was
speaking “at random” and continued talking, despite being advised to wait until he had
been read his rights. Zwetsloot and Carter placed Bailey under arrest and took him to the
police station on the concourse level of Powell Street station. At the station, Zwetsloot
took a pack of cigarettes from Bailey’s pockets, as well as a bottle of Risperidone tablets
with Bailey’s name on it. The quantity indicated on the bottle was 30 tablets.
       Rahoof Khan is a civilian employee of the San Francisco Police Department,
working in the fingerprint section. Khan testified that Bailey’s fingerprints match those
on a fingerprint card attached to a certified copy of a “[section] 969[, subdivision](b)
packet from the California Department of Corrections,” indicating that Bailey was
convicted of a violation of section 314, for indecent exposure, in 2007 in San Francisco.

       4
        It is a matter of common knowledge in San Francisco that the San Francisco
Municipal Transportation agency (Muni) and BART share Powell Street Station, with
platforms on different levels.

                                              4
       John Mendelson testified for the defense as an expert on the subject of
pharmacology and cocaine addiction. Mendelson had reviewed the video recordings that
were played at trial, but had not interviewed Bailey or reviewed his medical records.
Because some evidence supported the inference that Bailey might have been smoking
crack cocaine, the court, following an Evidence Code section 402 hearing, allowed
Mendelson to testify concerning the effects of smoking crack cocaine. Defense counsel
wanted to question Mendelson about the disorders for which Risperidone is prescribed
and the behavioral effects for a patient who was not complying with a Risperidone
prescription.5 The court ruled that it would “allow the question of the time period that the
dosage amount indicated on the bottle would be effective in the general population” but
that Mendelson could not “talk about this defendant’s symptoms of anything because he
has never examined this defendant.” The court explained further: “I don’t think he can
say that certain symptoms would show up again after a particular time period because he
doesn’t have any information on this defendant. He doesn’t even know what the
medication was prescribed for or by whom or for what purpose or what that physician
who made the prescription was indicating by such a prescription. [¶] So I think you have
to understand that this is a very narrow testimony on just what in the universe of his
experience the variety of the kinds of things that Risper[i]done has been prescribed for.”
       Mendelson testified that Risperidone is an antipsychotic drug used to treat mania,
schizophrenia, and psychosis. It is not a recreational drug. The effects of Risperidone
generally wear off within 24 hours because the drug has a 12-hour half life.
       Mendelson testified that the smoking of crack cocaine causes physical symptoms
that can include sweating, though that would not be common. People might become
talkative and garrulous under the influence of cocaine. High doses might cause a person
to lose their ability to “tell where they are, who they are . . . what they are doing.” High


       5
          Defense counsel made an offer of proof that the prescription for 30 Risperidone
tablets had been filled on April 28, 2013, and that, though Bailey was directed to take
one-half to one tablet per day, 29 tablets remained in the bottle. She argued that this
supported an inference that Bailey had not taken his medication on May 8, 2013.

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doses also produce a condition of “uncontrolled and poorly thought through behaviors”
and a user may be unaware of other people’s perceptions of them and what they are
doing. Paranoia and nervousness are consistent with cocaine intoxication. Insight and
judgment are impaired. One who has a substantial psychiatric impairment is at higher
risk for suffering adverse consequences from drug abuse. Use of cocaine does not impair
motor skills, so the user may not appear to be intoxicated.
       Defense counsel asked Mendelson: “[I]f you were aware that a person was seen
actively smoking crack cocaine on a BART train, that a crack pipe was found with that
person, that that person had a pill bottle of Risper[i]done in their possession . . . . [¶]
Would that person’s mental state likely be that that person would not be aware of the
people around them?” The People objected that this was an improper hypothetical and
the court sustained the objection.
       Shortly afterwards, defense counsel asked Mendelson: “And would someone who
is under the influence of a high dose of crack cocaine be likely to intend to display their
genitals to other people with the intention of another people [sic] seeing them?” The
People again objected and the court sustained the objection.
       On cross-examination, Mendelson admitted that he did not know if Bailey was
smoking cocaine on the BART train, why Bailey had a prescription for Risperidone, or
how long he might have been taking Risperidone. Mendelson agreed that cocaine use, in
lowering inhibitions, can enable a user to more freely do something they want to do. The
prosecutor began to ask Mendelson: “And if you have a preexisting tendency . . . to
expose your penis in public, and then you take cocaine—.” Defense counsel objected
that the hypothetical was improper and the court sustained the objection. The court also
sustained an objection to the prosecutor’s question whether, because Bailey had a prior
conviction for the same behavior, it was “more or less likely that he would have
committed this same behavior again.”
       The prosecutor asked Mendelson: “Would you agree that people can have a
mental disorder and still commit a crime?” Mendelson answered, “Oh, absolutely.”



                                               6
       Prior to redirect examination, defense counsel asked the court “to be allowed to
explore further the [e]ffect of Risper[i]done—my client’s possible mental condition in
light of [the prosecutor’s] final question to Dr. Mendelson in which she asked him to
opine, and he did give an opinion about whether or not someone with a mental disorder
could commit a crime.” Defense counsel argued that the question “opened the door to
further probing of the issue of whether or not, in light of the Risper[i]done, of [its]
treatment for psychotic disorders, whether or not the existence of a psychotic mental
disorder would impact, and in what way the sufferer’s mental state and awareness.” The
prosecutor argued that defense counsel had been allowed to explore the question of
Risperidone and its uses during direct examination and did not feel “that by me simply
asking about a mental disorder, which came up on direct, it opened the door to anything.”
The court “did not perceive that the [prosecutor’s] question opened up the examination in
that regard” and defense counsel was not permitted to pose further hypothetical questions
concerning Risperidone and mental state.
       On redirect, defense counsel asked Mendelson, “[I]f someone was prescribed
Risperidone, would it be a fair inference, in your pharmacological opinion, that that
person suffers from some sort of psychosis?” The People objected and the court
sustained the objection.
       Defense counsel requested that the court instruct the jury with CALCRIM No.
3428, which states, in relevant part: “You have heard evidence that the defendant may
have suffered from a mental (disease[,]/ [or] defect[,]/ [or] disorder). You may consider
this evidence only for the limited purpose of deciding whether, at the time of the charged
crime, the defendant acted [or failed to act] with the intent or mental state required for
that crime.” The court refused, stating: “The court does not find that there is sufficient
evidence in the record to warrant the giving of [CALCRIM No.] 3428. The only
evidence is that on his person, the defendant had a prescription bottle in his name with
what was purported to be Risper[i]done. We don’t actually know what the pills are or if
that’s even what they are. We don’t know when if at all he has ever taken that
medication. We don’t know what it was prescribed for, if it was prescribed. [¶] We


                                              7
don’t know that the fact that the prescription was filled in April, what that means about
what he has used or not used at any time or what the effects or his—any diagnosis of him.
[¶] So the fact that there was such a pill bottle, that fact is in evidence. I didn’t find that
there was sufficient evidence to warrant this mental disease defect or disorder instruction
in [CALCRIM No.] 3428. [¶] So the court declines to give that.”
          Defense counsel moved for a mistrial, arguing that the prosecutor’s question to Dr.
Mendelson about whether a person with a mental disorder could commit a crime was
“inflammatory to the extent that I don’t believe the jury could at this point give Mr.
Bailey a fair trial.” The court denied the motion.
          In closing argument, defense counsel argued at length that Bailey did not have the
specific intent required for conviction on the charges against him. In particular, defense
counsel argued that the Risperidone prescription supported the implication that Bailey
had an underlying mental disorder and that this implication was supported by his
behavior.
                                        DISCUSSION
          Bailey’s appointed counsel filed an opening brief pursuant to Wende that set forth
the facts of the case, but raised no specific issue, and asked this court to review the record
and determine whether there are any arguable issues on appeal. “[A]n arguable issue on
appeal consists of two elements. First, the issue must be one which, in counsel’s
professional opinion, is meritorious. That is not to say that the contention must
necessarily achieve success. Rather, it must have a reasonable potential for success.
Second, if successful, the issue must be such that, if resolved favorably to the appellant,
the result will either be a reversal or a modification of the judgment.” (People v. Johnson
(1981) 123 Cal.App.3d 106, 109.)
          The record shows that Bailey was at all times represented by competent counsel
who safeguarded defendant’s interests. No inadmissible evidence was improperly
admitted and no admissible evidence was improperly excluded. The jury was properly
instructed and the sentence was lawful. Our independent review reveals no arguable
issues.


                                               8
                                   DISPOSITION
      The judgment is affirmed.


                                              _________________________
                                              Brick, J.*


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




      * Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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