APPEAL from a judgment of the Superior Court of Los Angeles County. James R. Brandlin, Judge. (Los Angeles County Super. Ct. No. YA076352)
The opinion of the court was delivered by: Mallano, P. J.
CERTIFIED FOR PUBLICATION
Modified and affirmed with directions.
Defendant Adam Lee Eckard appeals from the judgment entered following a jury trial in which he was convicted of indecent exposure and found to have had a prior indecent exposure conviction. Defendant contends his prior Washington state misdemeanor indecent exposure conviction did not render him subject to felony sentencing under Penal Code section 314. (Undesignated statutory references are to the Penal Code.) We conclude that an out-of-state indecent exposure conviction that would have been a misdemeanor indecent exposure if committed in California does not trigger the felony sentencing provision of section 314 because from the Legislature's choice of the phrase "conviction under subdivision 1 of this section," in lieu of more generically descriptive language such as "indecent exposure"; its omission of language addressing prior out-of-jurisdiction convictions with reference to section 314; its limitation of section 668 to felonies; and the absence of any generally applicable misdemeanor equivalent of section 668, we can reasonably infer that the Legislature did not intend for an out-of-jurisdiction misdemeanor indecent exposure conviction to be used to elevate a violation of section 314 to felony status. Accordingly, we modify defendant's conviction to be a misdemeanor.
About 6:10 a.m. on October 17, 2009, 15-year-old Easton and 16-year-old Kurtis went to Manhattan Beach to surf. As they descended the stairs to the beach, they noticed defendant staring at them from the beach. When the boys reached the beach, defendant climbed part-way up the stairs and continued to watch them. Easton wanted to use the restroom, and Kurtis went with him. While Easton remained inside one of the stalls, Kurtis looked out the entrance to the restroom and saw defendant walking toward it. Kurtis was frightened and retreated into the other toilet stall. Defendant entered the restroom and paced slowly in front of the two stalls for five to ten minutes. Kurtis thought defendant was breathing a bit heavily and at one point saw defendant's legs and feet shaking. Twice, Easton saw defendant peeking inside the stall he was in through the gaps on the sides of the door. Kurtis phoned the police and described defendant and what was happening. While Kurtis was on the phone, defendant dropped to his knees in front of Easton's stall and exposed his erect penis. From his seated position, Easton could see it in the space between the floor and the bottom of the stall door, which was about 18 inches tall. Photographs admitted in evidence as defense exhibits depicted the gaps below and to the sides of the stall door. Easton shouted at defendant to leave, and defendant did so. After the police arrived, the boys emerged from the toilet stalls and identified defendant to the police.
The prosecutor introduced certified documents showing that on July 25, 2009, defendant pleaded guilty to one count of indecent exposure in violation of Revised Code of Washington (RCW) section 9A.88.010 in Skagit County, Washington. On a "Probable Cause Affidavit" a police officer stated, under penalty of perjury, that a woman picked up defendant, who was hitchhiking. While riding in her car, defendant "exposed his erect penis to [her], without any solicitation to do so, causing her alarm. [She] yelled at Eckard to get out of her vehicle," and he did so.
A defense investigator testified that on February 25, 2010, he photographed the restroom and measured the gaps below and around the stall door. The distance between the floor and the bottom of the stall door was 14½ inches. Each side gap was approximately one-quarter inch wide. The investigator could not see anything through the side gaps, from either inside or outside the stall.
The jury convicted defendant of indecent exposure and found that he had a "prior PC 314" conviction. The jury could not reach a verdict on a misdemeanor charge of lewd conduct, which the prosecutor agreed to dismiss. The court sentenced defendant to 16 months in prison.
Section 314, subdivision 1 treats as a misdemeanor an act of "willfully and lewdly" exposing the "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 . . . ." But the offense is a felony "[u]pon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288 [lewd act on a child] . . . ."
Defendant's prior conviction was a violation of RCW section 9A.88.010, which provides, in pertinent part, "A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm." The offense is a misdemeanor absent a prior conviction under the same statute "or of a sex offense as defined in RCW section 9.94A.030." Defendant's offense was punished as a misdemeanor and there is no evidence that he had any another prior conviction, let alone a conviction that would have made his Washington indecent exposure conviction a felony had it been committed in California.
Defendant challenged the treatment of his violation of section 314 as a felony on the ground that the Washington statute did not require the element of sexual motivation, and his Washington conviction thus was not equivalent to a prior violation of section 314. We asked the parties to brief a different issue: whether an out-of-state conviction that would have been a misdemeanor if committed in California (such as defendant's prior Washington conviction) may be used to elevate a violation of section 314 to felony status, given the language of section 314 and the absence of any express statutory provision regarding out-of-state misdemeanor convictions in general. Defendant argued that such an out-of-state conviction could not be used to elevate his violation of section 314 to felony status, while the Attorney General argued that it could.
Given the plain language of section 314, contrasted with other criminal statutes that expressly encompass prior convictions from other jurisdictions, and the absence of any generally applicable statutory or constitutional provision permitting comprehensive use of out-of-jurisdiction misdemeanor convictions for enhancement ...