Filed 3/7/14 P. v. Rogers CA4/1

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                         COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                       DIVISION ONE

                                                STATE OF CALIFORNIA



THE PEOPLE,                                                         D062632

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD 240490)

KEITH LAMAR ROGERS,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.



         Koryn & Koryn, Daniel G. Koryn, under appointment by the Court of Appeal, for

the Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Lise S. Jacobson,

Deputy Attorneys General for the Plaintiff and Respondent.
       A jury convicted Keith Lamar Rogers of indecent exposure. (Pen. Code,1 § 314,

subd. (1).) It also found true that he had a prior prison conviction for the same offense.

(§ 667.5, subd. (b).) The court sentenced him to four years in state prison and imposed

different fines and fees, including a sex offender registration fine under section 290.3.

       Rogers contends: (1) there was insufficient evidence to support his conviction for

indecent exposure; (2) the court erroneously failed to instruct the jury sua sponte

regarding disorderly conduct, which he claims is a lesser included offense of indecent

exposure; and (3) the court erroneously imposed the sex offender registration fine. We

affirm the judgment.

                       FACTUAL AND PROCEDURAL BACKGROUND

       On Thursday, April 19, 2012, Rogers went to a parole office in San Diego and told

Parole Agent Myrna Alonso that he needed a parole identification card in order to register

as a sex offender. Agent Alonso telephoned a San Diego Police Department registration

officer notifying her she would issue Rogers an identification card. Agent Alonso

suggested Rogers return the next Monday in order for his male parole officer to

administer a urine test. Rogers insisted that Agent Alonso administer the test

immediately; therefore, Agent Alonso relented. The testing area had four bathroom

stalls, two on each side of a corridor. Rogers entered one of the stalls. Agent Alonso

briefly went to a separate area. Upon returning to the bathroom area, she saw Rogers

inside an open stall. He was facing away from the toilet bowl and towards the stall's side



1      All statutory references are to the Penal Code.
                                              2
wall located closest to the direction from which Agent Alonso returned. She saw Rogers

masturbating; his penis was erect. Rogers did not make eye contact with Agent Alonso.

She testified the floor in the bathroom area was not carpeted and one could hear footsteps

on it. Agent Alonso turned around and went to get a male parole agent to verify what she

had seen. Agent Alonso testified she was offended, "shocked," and it "caught [her] off

guard" because that was "not something [she] expected in a parole office." She had

tested male parolees "thousands of times" but not once had she experienced a similar

situation.

       Parole Officer Sylvester Brooks testified Agent Alonso was "pretty agitated and

upset" and told him a parolee was exposing himself. Officer Brooks immediately went to

the bathroom area and saw Rogers "angling his body towards" the stall door and

"jiggling" his erect penis. Rogers seemed surprised to see Officer Brooks, who ordered

him to pull up his pants. Officer Brooks was offended by Rogers's act of exposing

himself because although no one was around the bathroom area that day, ordinarily many

female agents and clerical staff walk around that area. Moreover, the area is used by

other individuals taking drug tests.2




2      Rogers does not challenge the finding regarding his prior conviction; therefore we
do not set forth the testimony supporting that finding.

                                            3
                                           DISCUSSION

                                                  I.

       Rogers contends there was insufficient evidence to support his conviction for

indecent exposure because he lacked the specific intent to direct public attention to his

genitals. He argues the incident did not occur in a public place, but in a private bathroom

stall where he had a reasonable expectation of privacy.

       Under section 314, subdivision 1, it is a crime for someone to willfully and lewdly

"[e]xpose[] 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." "The separate

requirement that the intent of the actor be 'lewd' is an essential element of the offense."

(In re Smith (1972) 7 Cal.3d 362, 365.) Conviction for this 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.' " (People v. Archer (2002) 98 Cal.App.4th 402, 404-405.)

"Generally, a defendant's intent must, of necessity, be established by circumstantial

evidence." (People v. Swearington (1977) 71 Cal.App.3d 935, 949 (Swearington).)3



3      The jury was instructed with CALCRIM No. 1160 as follows: "The defendant is
charged in Count One with indecent exposure in violation of Penal Code section 314. [¶]
To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1.
The defendant willfully exposed his genitals in the presence of another person or persons
who might be offended or annoyed by the defendant's actions; [¶] AND [¶] 2. When
the defendant exposed himself, he acted lewdly by intending to direct public attention to
his genitals for the purpose of sexually arousing or gratifying himself or another person,
or sexually offending another person. [¶] Someone commits an act willfully when he or
she does it willingly or on purpose. It is not required that he or she intend to break the
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       This court's role in reviewing evidence to determine whether it is sufficient to

sustain a conviction is "a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

"In assessing a sufficiency-of-evidence argument on appeal, we review the entire record

in the light most favorable to the prevailing party to determine whether it shows evidence

that is reasonable, credible and of solid value from which a rational trier of fact could

find the defendant guilty beyond a reasonable doubt." (People v. Wader (1993) 5 Cal.4th

610, 640.) We apply the same standard to convictions based largely on circumstantial

evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) It is not within our

province to reweigh the evidence or redetermine issues of credibility. (Ochoa, at

p. 1206.)

       We conclude the evidence was sufficient for the jury to find Rogers had the

requisite specific intent. Rogers insisted on having the female parole agent administer the

test right away. Having had a prior conviction for indecent exposure, and being on

probation for that offense, Rogers was on notice of the kinds of conduct that could

constitute the offense. During his urine test, he positioned himself in the bathroom stall

in order to be seen by Agent Alonso. Agent Alonso saw Rogers masturbating; his penis

was erect. She was shocked and offended. Several minutes later, Officer Brooks found

Rogers facing the door of the bathroom stall and "jiggling" his erect penis. As a

probationer, Rogers had no reasonable expectation of privacy. Officer Brooks described




law, hurt someone else, or gain any advantage. [¶] It is not required that another person
actually see the exposed genitals."
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the bathroom area where Rogers was taking the urine test as a public area transited by

employees and probationers alike.

                                                   II.

       Rogers maintains the trial court committed reversible error in failing to instruct the

jury on its own motion that the misdemeanor crime of disorderly conduct (§ 647, subd.

(a))4 is a lesser included offense of indecent exposure. This argument lacks merit.

       "It is settled that a court must instruct on general principles of law that are closely

and openly connected with the facts of the case. [Citation.] The duty to instruct sua

sponte on general principles encompasses the duty to instruct on defenses that are raised

by the evidence, and on lesser included offenses when the evidence has raised a question

as to whether all of the elements of the charged offense were present." (People v. Perez

(1992) 2 Cal.4th 1117, 1129.) The duty to instruct on a lesser included offense arises

when there is substantial evidence the defendant is guilty only of the lesser offense.

(People v. Birks (1998) 19 Cal.4th 108, 118.)

       We first consider whether, under the facts of this case, disorderly conduct is a

necessarily included offense of the charged crime of indecent exposure. "To determine

whether a lesser offense is necessarily included in the charged offense, one of two tests

(called the 'elements' test and the 'accusatory pleading' test) must be met. The elements

test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense



4     Under section 647, subdivision (a), it is a crime to "engage[] in lewd or dissolute
conduct in any public place or in any place open to the public or exposed to public view."

                                               6
[are] included in the elements of the greater offense." [Citation.]' [Citations.] Stated

differently, if a crime cannot be committed without also necessarily committing a lesser

offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under

the accusatory pleading test, a lesser offense is included within the greater charged

offense ' "if the charging allegations of the accusatory pleading include language

describing the offense in such a way that if committed as specified the lesser offense is

necessarily committed." ' " (People v. Lopez (1998) 19 Cal.4th 282, 288-289.) "In

making this determination, one looks to the elements of the offenses—not the evidence

regarding the commission of the offenses." (People v. Reed (2000) 78 Cal.App.4th 274,

281.)

        Rogers relies on Swearington, supra, 71 Cal.App.3d 935, which held that if the

defendant possessed the necessary specific intent to constitute felony indecent exposure,

the defendant also necessarily committed the misdemeanor offense of lewd conduct. (Id.

at pp. 943-945.) The California Supreme Court subsequently clarified in Pryor v.

Municipal Court (1979) 25 Cal.3d 238, 248 (Pryor) that the terms "lewd" and "dissolute"

used in section 647, subdivision (a) are synonymous. The court held the terms refer to

conduct that involves the touching of the genitals, buttocks, or female breast for the

purposes of sexual arousal, gratification, annoyance, or offense if the actor knows or

should know of the presence of persons who may be offended by this conduct. (Pryor,

at p. 256.)

        Since Pryor, supra, 25 Cal.3d 238, appellate courts have held that section 647,

subdivision (a) is not a lesser and necessarily included offense of felony indecent

                                             7
exposure. (See People v. Meeker (1989) 208 Cal.App.3d 358, 362; People v. Tolliver

(1980) 108 Cal.App.3d 171, 173-174.) The court in People v. Meeker explained it is

possible to violate section 314, subdivision 1 (indecent exposure), without violating

section 647, subdivision (a) (disorderly conduct), since the latter involves the "touching

of the genitals" but the former does not. (People v. Meeker, at p. 362; see People v.

Rehmeyer (1993) 19 Cal.App.4th 1758, 1766 [no touching required to violate § 314].)

We agree with this analysis.

       As one can commit the crime of indecent exposure under section 314 without

touching one's genitals as required for the offense of disorderly conduct, the section 647

offense cannot be considered a lesser included offense of indecent exposure under the

statutory elements test. (People v. Meeker, supra, 208 Cal.App.3d at p. 362.) Rogers's

claim fares no better under the accusatory pleading test as the pleading in this case simply

mirrored the statutory language. Here, the pleading did not allege a touching; therefore,

Rogers's claim likewise fails under this test. Because the offense of disorderly conduct is

not a lesser included offense of indecent exposure, the trial court did not err in failing to

instruct on that crime.

                                                  III.

       Rogers contends the court erroneously imposed a $500 sex registration fine

because it was unaware of its discretion to refuse to impose it and, in any event, the fine

was unauthorized by law because the court failed to ascertain his ability to pay.

       Section 290.3 states that every person convicted of indecent exposure, among

other crimes, shall be punished by a fine, "unless the court determines that the defendant

                                              8
does not have the ability to pay the fine." Rogers provides no basis for his claim that the

trial court was unaware of its discretion. We presume the trial court made the requisite

findings to support its judgment. (People v. Burnett (2004) 116 Cal.App.4th 257, 261-

262.)

        When a statute mandates a fine but requires the court to consider the defendant's

ability to pay, the burden is on the defendant to object or demand a hearing to determine

the ability to pay. (People v. McMahan (1992) 3 Cal.App.4th 740, 749.) Here, Rogers

did not object in the trial court to the court's imposition of the sex registration fine.

Therefore, any error is forfeited. (Id. at p. 750.)

        We recognize Rogers represented himself at trial. But as the McMahan court

noted, "[T]he most knowledgeable person regarding the defendant's ability to pay would

be the defendant himself. It should be incumbent upon the defendant to affirmatively

argue against application of the fine and demonstrate why it should not be imposed. [¶]

Here, the defendant was informed through the probation report that the probation officer

was recommending the imposition of a fine pursuant to section 290.3. No objection to

the fine was raised below, nor did defendant make any attempt to show he did not have

the ability to pay the fine." (McMahan, supra, 3 Cal.App.4th at pp. 749-750.) We

conclude Rogers's claim lacks merit.




                                               9
                                  DISPOSITION

      The judgment is affirmed.




                                                O'ROURKE, J.

WE CONCUR:


BENKE, Acting P. J.


AARON, J.




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