APPEAL from a judgment of the Superior Court of Los Angeles County. Ricardo R. Ocampo, Judge. Affirmed. (Los Angeles County Super. Ct. No. 9CP03232).
The opinion of the court was delivered by: Woods, J.
CERTIFIED FOR PUBLICATION
Before this court, Nathaniel Phillips asserts that sufficient evidence did not support his conviction for a violation of Penal Code section 647.6, subdivision (a)(1) because there was no evidence that he directed his criminal conduct towards a specific child as required by the statute. Based on our review of the statutory language and its purpose to protect all children from sexual predators, we find sufficient evidence to support the conviction. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND*fn1
On a school day in mid-March 2009 at about 3:00 p.m., 15-year-old S.L., a Compton High School student, and two friends left the school grounds. They walked on the sidewalk next to the high school; S.L. was walking to Kennedy Elementary School to pick up her younger sister. As they walked, S.L. observed a car parked next to the curb in front of the high school. A man, later identified as Phillips, sat in the driver's seat of the car. The passenger side door of the car was closed but the window was open. As S.L., who is 5 feet 7 inches tall, walked by the passenger side door she glanced into the car. She saw Phillips masturbating; he had his hand on his penis and was rubbing and moving it back and forth. She observed this for a couple of seconds. After taking a few steps away from the car, she yelled. S.L. proceeded to pick up her sister from the elementary school. On the way back home, she walked on the opposite side of the street. She observed the same car parked in the same location with Phillips still sitting in the driver's seat. When S.L. got home she told her mother what she had observed. S.L.'s mother called the police.
The Los Angeles County Sheriff's Department responded to the call. When Sheriff's Deputies arrived at the high school they saw Phillips' car parked directly in front of the admissions building of the high school. It appeared to the deputies that "school had just gotten out." Phillips was sitting in the driver's seat; the button fly on his pants was open and it appeared that Phillips was sweating. On the front passenger seat of the car, deputies found a backpack that contained a jar of Vaseline, a "male libido tonic," Johnson's Baby Powder and deodorant. Sheriff's Deputies took Phillips into custody, and S.L. later identified him as the man she had early observed in the car parked at the school.
Phillips was arrested and charged with indecent exposure in violation of Penal Code section 314, subdivision (1), a misdemeanor (Count 1); annoying or molesting a child under the age of 18 in violation of Penal Code section 647.6, subdivision (a)(1), a misdemeanor (Count 2); and refusal or failure to provide a specimen in violation of Penal Code section 296 (Count 3).*fn2
During the trial, Phillips filed a motion to dismiss Count 2 the Penal Code section 647.6 subdivision (a)(1) charge, on the ground that there was no evidence that he had directed his conduct at the particular child victim. The court denied the motion. Phillips also objected to jury instruction CALCRIM No. 1122 (describing the elements of Pen. Code, § 647.6, subds. (a)-(c)). He argued that the CALCRIM instruction did not make clear that the offense must be directed at a specific child. The court overruled the objection and read the CALCRIM No. 1122 instruction to the jury.
The jury found Phillips guilty on both Counts.
Phillips filed a motion to set-aside the verdict arguing instructional error on Count 2. He claimed as he had before trial, that CALCRIM No. 1122 failed to inform the jury that the element of Penal Code section 647.6, subdivision (a)(1), which, according to Phillips, required proof that he had directed his conduct at a specific child. He noted that the CALJIC No. 16.440 (describing the elements of Pen. Code, § 647.6 subd. (a)(1)) instructed that one of the elements of the offense is that the acts were motivated by the sexual interest in the alleged victim and that the instruction provided a blank space for the victim's name. The trial court denied the motion.
Phillips filed an appeal in the appellate division of the superior court and subsequently the People filed a petition in this court to transfer the appeal.*fn3 On February 18, 2010, this court ordered that the matter be transferred to this court for hearing and decision.
Before this court Phillips argues that Penal Code section 647.6, subdivision (a)(1) pursuant to which he was charged in Count 2 does not criminalize his conduct because there was no evidence that his actions were directed at the particular victim, S.L.*fn4 He posits that even assuming the evidence from which it could be inferred that he knowingly parked in a location where it was likely he would be observed by children, he cannot be found to have violated Penal Code section 647.6, subdivision (a)(1) absent proof that he focused his conduct toward a specific child victim.
The People disagree with Phillips' construction of Penal Code section 647.6, subdivision (a)(1). The People complain that the case law and jury instructions that suggest a perpetrator have targeted a specific child victim, misinterpret the statute and thus inadvertently add the "specific child victim" element which is not ...