Filed 10/28/13 In re S.S. CA3
                                           NOT TO BE PUBLISHED



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----


In re S.S., a Person Coming Under the Juvenile Court
Law.

THE PEOPLE,                                                                                  C072509

                   Plaintiff and Respondent,                                     (Super. Ct. No. JV133970)

         v.

S.S.,

                   Defendant and Appellant.




         A petition filed in Sacramento County Superior Court under Welfare and
Institutions Code section 602 alleged that minor S.S. committed indecent exposure (Pen.
Code, § 314, subd. 1 -- counts one, two, and three),1 obstructed a peace officer (§ 148,
subd. (a)(1) -- count four), and annoyed or molested a child under the age of 18 (§ 647.6,
subd. (a)(1) -- count five). Count five was dismissed on the People‟s motion before the
jurisdictional hearing, and the case proceeded on counts one through four only.



1        Undesignated section references are to the Penal Code.

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       After denying the minor‟s motion to dismiss all remaining allegations at the
conclusion of the People‟s case-in-chief (Welf. & Inst. Code, § 701.1),2 the juvenile court
sustained the allegations as to counts one, three, and four but dismissed the allegation as
to count two for insufficient evidence. The court thereafter adjudged the minor a ward of
the juvenile court and granted probation.
       The minor contends (1) the evidence was insufficient to support the juvenile
court‟s finding as to count three, and (2) the court should have granted his motion to
dismiss that count. We affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Count One
       On the afternoon of October 18, 2011, Frances B. sat down on a bench in front of
Rio Americano High School to take a phone call. The minor was sitting approximately a
foot and a half away on the bench. As she ended the call, she saw that the minor had his
erect penis out of his pants and was masturbating. She told him he was being
inappropriate. He looked her in the eye, apparently unembarrassed, and said he did not
know what she was talking about.
       Seeing the minor again near the school, she spoke to him again; he replied again
that he did not know what she was talking about. She found out his name from other
students, reported the incident to the school, and called the Sacramento County Sheriff‟s
Department but did not press charges.




2      Welfare and Institutions Code section 701.1 provides: “At the hearing, the court,
on motion of the minor or on its own motion, shall order that the petition be dismissed
and that the minor be discharged from any detention or restriction therefore ordered, after
the presentation of evidence on behalf of the petitioner has been closed, if the court, upon
weighing the evidence then before it, finds that the minor is not a person described by
Section 601 or 602. If such a motion at the close of evidence offered by the petitioner is
not granted, the minor may offer evidence without first having reserved that right.”

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       Count Two
       On March 8, 2012, at around 5:45 p.m., Nicole C. was driving down Tallyho
Drive in a residential neighborhood of Sacramento County when she saw a young man
about 25 feet away, standing in a driveway with his shorts pulled partially down,
apparently masturbating. She made eye contact with the man, but he did not stop. She
did not see his penis, but she saw his scrotum. He came farther down the driveway
towards her as her car approached.
       Nicole C. reported the incident to law enforcement that day. However, after the
police contacted the minor and his mother, they did not arrest or cite him.3
       Counts Three and Four
       On May 12, 2012, at around 7:40 p.m., Nicole C. was again driving down Tallyho
Drive when she saw a naked man running from the same driveway out in front of the
house. She did not see his genitals because his hands were cupped over them. She called
her mother to come and witness this behavior.
       After picking her mother up, Nicole C. returned to the scene about 10 minutes
later. The man was again running naked in the driveway while cupping his hands over
his genitals; again, Nicole C. did not see his penis or his testicles. She did not know what
he was doing and did not think he was masturbating, but she was “disgusted and
annoyed.”
       Also on May 12, 2012, A.L., age 12, was walking down Tallyho Drive with two
friends when she saw a “naked guy” in front of a house which had a yellow van parked in
front, walking back and forth without attempting to cover himself. She saw his penis.
The girls hid behind a bush while A.L. called the police. The man looked in the girls‟
direction, but it appeared that he did not know if anyone was there. He walked towards



3      At a photo lineup, Nicole C. identified another person as the perpetrator, though
she said it could also be the person in position number six (the minor).

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them but did not see them; then he walked back into the house. After that, he came out
again. The episode lasted five or six minutes while A.L. was calling 911. She recalled
speaking to a police officer about it around 8:45 p.m. that night.4
       Sacramento County Sheriff‟s Deputy Steven Forsyth responded to a dispatch call
reporting indecent exposure on Tallyho Drive around 7:45 p.m. on May 12, 2012. The
address was the minor‟s home.
       When Deputy Forsyth arrived at the house, he did not see anyone outside, and no
one answered the door. He spoke to the alleged victims to get a more detailed statement.
While he was doing so, another indecent exposure call came in regarding the same
address. Returning to the scene, he saw a naked male (the minor) standing in the
driveway near the garage and the front door entryway. The minor started to run toward
the front door and did not comply with Deputy Forsyth‟s order to stop. Eventually,
Deputy Forsyth and his partner detained the minor in the backyard.
       Defense
       The minor testified as to count one that he was not masturbating, but may have
taken his penis out of his pants because he was “adjusting” himself. He knew it was not
okay, but “just didn‟t think it was a big deal.”
       The minor testified as to count two that on March 8, 2012, he was naked because
he was about to shower; then he remembered he was supposed to take out the garbage.5
After looking to see if anyone was around, he went out and promptly went back inside.
He did not masturbate outside the house. He did not intend to display his genitals to
anyone. He did not see Nicole C. that evening.




4    The Welfare and Institutions section 602 petition gave the date of count three as
May 12, 2012, but did not specify a time or an alleged victim.
5      He “occasionally” lounged around naked at home when he was by himself.

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       The minor testified as to count three that on May 12, 2012, he was once again
taking out the garbage while naked when he saw a police car and went back inside. He
had previously gone outside naked that evening to take bottles outside to the trash. He
looked before going out to see if anyone was outside. He knew people were not
supposed to be outside naked and that it is against the law. At the time, however, he only
“had a suspicion” and “didn‟t really think it was a big deal.” He did not masturbate
outside the house. He was not running around on the driveway with his hand covering
his penis. He did not see Nicole C. or A.L.
       When he went out naked to take out the garbage, the minor felt as if he were
“getting away with something bad” because everybody wears clothes outside. However,
he did not have the intent to “go outside and do something bad”; he just “didn‟t want to
go through the hassle of going and putting on some clothing just to take out the garbage.”
It was not exciting to him to go outside naked. He did not do it to get someone‟s
attention. He did not derive sexual pleasure from doing it.
       The Juvenile Court’s Ruling
       As to count one, the court found the evidence was sufficient and sustained that
allegation.
       As to count two, the court found that the minor was the person Nicole C. saw on
March 8, 2012, but the evidence did not prove beyond a reasonable doubt that the minor
violated section 314, subdivision 1 on that date. Therefore the court did not sustain that
allegation.
       As to count three, the court found: “[T]he evidence establishes, specifically with
regard to . . . element number two, I do find specifically that the circumstantial evidence
establishes that when the defendant exposed himself, he acted lewdly by intending to
direct public attention to his genitals for the purpose of sexually arousing himself. I do
not find that he intended to sexually arouse a third party. I do find that he sexually
intended to arouse himself. [¶] I also find that . . . he left the house naked. He did so in

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a fashion in which he knew or reasonably should have known would have exposed his
genitals to a third party, and he did so with the specific intent of offending or affronting
those people through seeing the genitals. And that was the sole or exclusive purpose for
his actions. So accordingly, with regard to Count [three], I find the second element was
met in two ways. So if, on appellate review, it appears the Court disagrees with me on
the one, I have also found it was met on the second.”6
                                       DISCUSSION
       The minor contends the evidence was insufficient as to count three because it did
not demonstrate that he acted “lewdly” under section 314, subdivision 1: it did not show
that he exposed himself to Nicole C. within the meaning of the statute, or that he had the
intent to direct public attention to his genitals for the purpose of sexually arousing
himself or sexually affronting another. Therefore, according to the minor, the juvenile
court should have granted his motion to dismiss as to count three at the close of the
People‟s case-in-chief. We conclude the evidence was sufficient to satisfy section 314,
subdivision 1.
       In an “appeal challenging the sufficiency of the evidence to support a juvenile
court judgment sustaining the criminal allegations of a petition made under the provisions
of section 602 of the Welfare and Institutions Code, we must apply the same standard of
review applicable to any claim by a criminal defendant challenging the sufficiency of the
evidence to support a judgment of conviction on appeal. Under this standard, the critical
inquiry is „whether, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.‟ [Citation.] An appellate court „must review the whole
record in the light most favorable to the judgment below to determine whether it discloses




6      The court also found the evidence sufficient as to count four.

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substantial evidence -- that is, evidence which is reasonable, credible, and of solid value
-- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.‟ [Citations.]” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371, original italics.)
       Section 314, subdivision 1 provides as relevant: “Every 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[,]
. . . [¶] . . . is guilty of a misdemeanor.”
       “Under section 314, „lewd‟ intent is an essential element of the offense, and
„something more than mere nudity‟ must be shown. (In re Smith (1972) 7 Cal.3d 362,
365.) „ “[A] person does not expose his private parts „lewdly‟ within the meaning of
section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that
offense requires proof beyond a reasonable doubt that the actor not only meant to expose
himself, but intended by his conduct to direct public attention to his genitals for purposes
of sexual arousal, gratification, or affront.‟ (In re Smith, supra, 7 Cal.3d at p. 366.)” (In
re Dallas W. (2000) 85 Cal.App.4th 937, 939; see also People v. Earle (2009) 172
Cal.App.4th 372, 392.)
       “As used in Smith, the word „sexual‟ modifies „arousal,‟ „gratification,‟ and
„affront‟ . . . . (In re Smith, supra, 7 Cal.3d at p. 366.) „Affront‟ must be read as „sexual
affront.‟ ” (In re Dallas W., supra, 85 Cal.App.4th at p. 939, italics added.)
       “The nature of the specific intent required for indecent exposure . . . is quite
distinct from that involved in lewd conduct [§ 647, subd. (a)]. A person who exposes his
private parts with the intent „to direct public attention to his genitals‟ is necessarily
engaged in a purposeful and aggressive sexual display designed to provoke others. In
contrast, lewd conduct can be committed by one who blithely ignores the risk of being
seen and acts despite the presence of others, rather than because of it.” (People v. Honan
(2010) 186 Cal.App.4th 175, 182, original italics.)



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       The minor contends first that the testimony of Nicole C. about the events of May
12, 2012, cannot support the juvenile court‟s finding that the minor exposed his genitals,
as required under section 314, subdivision 1, because she testified that he cupped his
hands over his genitals in a manner which blocked any view of them. The minor is
correct. (See People v. Carbajal (2003) 114 Cal.App.4th 978, 982, 986-987 [even if no
evidence anyone directly observed the defendant‟s genitals, there must be sufficient
circumstantial evidence that actual exposure occurred]; see People v. Massicot (2002) 97
Cal.App.4th 920, 928.) But this point does not compel reversal because A.L. testified
that when she observed defendant on the same evening, he made no attempt to cover
himself and she saw his penis.7
       The minor contends next that the evidence does not support the juvenile court‟s
finding of lewd intent as to count three because public nakedness, without more, does not
establish lewd intent under section 314, subdivision 1, and the court‟s reasoning as to
what the evidence further established was impermissibly speculative. We disagree.
Though acknowledging pro forma that the substantial evidence standard applies on
appeal, the minor disregards that standard by rearguing the evidence most favorably to
himself. When viewed most favorably to the judgment, as we must view it, it is
sufficient to support the judgment.
       To begin with, the juvenile court‟s findings show that it deemed the testimony of
the complaining witnesses credible and the minor‟s testimony, so far as it conflicted, not
credible. Thus, the court evidently disbelieved the minor‟s claim that he did not intend to
expose himself on any of the occasions alleged in the Welfare and Institutions Code
section 602 petition. Drawing reasonable inferences in favor of the judgment, substantial



7      As noted, the allegation as to count three did not specify a particular time or a
particular victim. Since both Nicole C. and A.L. testified as to events occurring on May
12, 2012, the testimony of either could suffice to sustain that allegation.

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evidence showed that the minor had a pattern of deliberately exposing himself to
strangers (count one), or of deliberately putting himself in a position where strangers
were likely to see his naked body, while feeling as if he were “getting away with
something bad” (count three).8 His repeated conduct in going out naked onto his
driveway twice in one evening, fully aware that people are not supposed to be naked in
public and that strangers routinely drove or walked past his house, belied any claim of
mere thoughtlessness or absentmindedness.
       Furthermore, the juvenile court could properly consider, as part of the
circumstantial evidence going to intent, that in the incident alleged as count one the
minor masturbated in close proximity to Frances B. -- an act calculated both to sexually
arouse himself and to sexually affront her -- and when confronted about it, brazenly
claimed he did not know what she was talking about. Faced with a conflict in the
evidence as to whether the minor knew or reasonably should have known he could be
seen while standing, walking, or running naked in his driveway and whether he intended
to sexually affront anyone who saw him in that state, the court could reasonably infer
that, as in the prior incident, he knew and intended precisely that.
       The minor relies on In re Smith, supra, 7 Cal.3d 362, and In re Dallas W., supra,
85 Cal.App.4th 937, to support his assertion that public nakedness alone, even if
combined with an intent to give offense, is not sufficient to prove the intent to offend or
affront sexually, as required under section 314, subdivision 1. Both cases are
distinguishable. In In re Smith, the defendant sunbathed in a place where he reasonably
believed he would not be observed by strangers, and did not do anything overtly sexual or



8      The minor denied that this feeling of “getting away with something bad” was
exciting or thrilling, and answered affirmatively when his counsel asked if it was
“[s]omething like crossing outside of the crosswalk” (i.e., a mere matter of breaking a
rule). However, the juvenile court was not required to accept those answers as credible,
and evidently did not do so.

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call anyone‟s attention to his nakedness. (In re Smith, supra, 7 Cal.3d at p. 364.) In In re
Dallas W., where the minor “mooned” oncoming traffic on a public street, the appellate
court deferred to the juvenile court‟s factual finding that the minor acted with the intent
to annoy and affront, but not to arouse himself sexually or to arouse or affront others
sexually. (In re Dallas W., supra, 85 Cal.App.4th at pp. 938, 939-940.) Here, the minor
repeatedly went out of his way to appear naked in a public place in the middle of a
residential neighborhood and had no credible nonsexual motive for doing so. Therefore,
the juvenile court‟s conclusion that the minor intended both to arouse himself sexually
and to give sexual offense to anyone who saw him in that state is supported by substantial
evidence.
         As supposed proof of his nonsexual intent, the minor cites the testimony of the
sheriff‟s deputy who arrested him that the deputy “observed a naked male . . . standing in
the driveway near the corner near the garage” and that the minor‟s demeanor was “[o]ne
of innocence. He didn‟t know why we were chasing him.” However, the deputy did not
claim to have personally witnessed lewd conduct by the minor, and the deputy‟s
observation about the minor‟s demeanor was not a statement of his own view but a
characterization of the minor‟s self-righteous protestations of innocence. Finally, since
this evidence is not contemporaneous with the conduct described by the complaining
witnesses, it does nothing to refute the juvenile court‟s conclusions about that conduct.
         Lastly, the minor cites People v. Archer (2002) 98 Cal.App.4th 402, in which a
defendant was found to have violated section 314, subdivision 1 by displaying his penis
to a female driver during an incident of “ „road rage‟ ” (id. at p. 403), and points out that
his conduct as to count three did not involve similar facts. People v. Archer does not
assist the minor because section 314, subdivision 1 does not include as an element that
the person who is exposing himself act with anger or aggression, as the defendant did
there.



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       Because we have found that the evidence was sufficient to sustain the allegation as
to count three, we necessarily reject the minor‟s contention that the juvenile court should
have granted his motion to dismiss that allegation under Welfare and Institutions Code
section 701.1. In any event, that statute provides on its face only for dismissing a
Welfare and Institutions Code section 602 petition in its entirety, and the minor does not
cite any case law holding that a juvenile court may dismiss an individual allegation on a
Welfare and Institutions section 701.1 motion while continuing to detain a minor on other
allegations. Neither In re Anthony J. (2004) 117 Cal.App.4th 718, 727, nor In re Andre
G. (1989) 210 Cal.App.3d 62, 66, cited by the minor to support this proposition, actually
so holds.
                                      DISPOSITION
       The judgment (order granting probation) is affirmed.



                                             NICHOLSON             , Acting P. J.



We concur:



        HULL              , J.



        BUTZ              , J.




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