APPEAL from the Superior Court of Riverside County. Elisabeth Sichel, Judge. (Super.Ct.No. INM187272)
The opinion of the court was delivered by: Ramirez P.J.
CERTIFIED FOR PUBLICATION
A jury convicted defendant, Raul Sanchez, of the misdemeanor of indecent exposure (Pen. Code, § 314, subd. (1)), which occurred on April 6, 2008. He was sentenced to local time and appealed to the appellate department of the trial court. The appellate department, in a per curiam opinion, reversed defendant's conviction because it concluded, although disagreeing with it, that it was bound under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, to follow an appellate court opinion, People v. Hernandez which was not then final, and for which review before the California Supreme Court had subsequently been granted. The appellate department then certified the case for transfer to this court, pursuant to California Rules of Court, rules 8.1002 and 8.1005, and we granted the transfer. Then, the California Supreme Court deferred action in Hernandez, pending the outcome of People v. Stevens (2009) 47 Cal.4th 625 (Stevens), which was subsequently decided. In light of Stevens, we rejected defendant's contention that his right to a fair trial was violated by the security measures used during this trial and we affirmed the judgment. Defendant then brought a petition for review before the California Supreme Court, which was granted, with further action delayed pending consideration and disposition of People v. Hernandez (2011) 51 Cal.4th 733 (Hernandez). After Hernandez was decided, the Supreme Court transferred the case back to this court to reconsider the issue in light of the opinion in Hernandez. We here affirm the judgment.
An Indio police officer testified that on March 14, 2006 at 5:52 a.m., he was dispatched to an apartment complex because a complaint had been made that a Hispanic man was running around naked. The officer encountered defendant and asked him what he was doing there, as defendant said that he lived a block away. Defendant said he was masturbating by the wall.
Concerning the charged offense, an eyewitness testified that at 2:30 a.m. on April 6, 2008, she parked her vehicle in a parking space to the right of and about 12 feet from the front door of the convenience store of a gas station Defendant was standing in front of her Jeep Grand Cherokee, drinking a glass of water. While her headlights were still on, defendant turned to look at her, then she turned her headlights off, but there were lights around the store. Defendant, who was leaning against the propane tank storage area, and was about four feet from the eyewitness and facing her direction, with his jacket opened, reached under his shorts and placed his hands on his penis. The eyewitness lowered the visor in her vehicle, but continued to observe defendant, who lowered his shorts to mid-thigh, exposing his penis, which was erect. While looking at the eyewitness more than five times interspersed between looking away from her, defendant masturbated.*fn1 This made her uncomfortable, nervous and afraid.*fn2 The eyewitness got her cell phone and called the police. Defendant continued to masturbate as she made the call. While the eyewitness was still on the phone to police, defendant stopped masturbating and left. About an hour later and across the street, she identified defendant as the person she had seen expose himself and masturbate. The eyewitness identified on the stand a picture of defendant taken at the time of his apprehension by the police as the person she had seen outside the convenience store. She identified the picture based on the jacket and shorts defendant was wearing. She also identified a photo which she testified accurately depicted the lighting conditions in the parking lot at the time.
The police officer who encountered defendant across the street from the store about an hour after the incident testified that defendant matched the description the eyewitness had provided of the man she had seen at the convenience store. Defendant was hunched down in fetal position on the floorboard of a truck that had no license plate and was parked at a gas station that was not open at the time. Defendant did not appear to be sleeping. Defendant was not the registered owner of the truck and defendant denied owning it. A bicycle was parked in front of the truck which defendant said belonged to him and he had ridden to the area. The officer testified that the eyewitness positively identified defendant as the man she had seen at the convenience store. Defendant told the officer that he had been at the convenience store, buying cigarettes and urinating next to a tree. There was a restroom inside the convenience store which was "generally opened" and did not require a key. However, the officer did not check to see if the restroom was working at the time of the crime.
Defendant testified that he had been convicted of burglaries in 2003 and 2006. He said that on April 6, 2008, he was "living out on the street," frequently sleeping behind a market near his former home, although he continued to work. He rode his bike to the convenience store at the time of the crime to buy cigarettes and something to drink. He bought the cigarettes and a Mexican drink that contains rice and is, therefore, not clear in appearance. He did not recall asking the cashier if he could use the restroom inside the store and he denied using it. He left the store, urinated to the side of one of the trees outside, got his bike, which he had left behind the store, and rode off. He first noticed the eyewitness when he walked by to get his bike. He had seen only one or two people, who were at the gas pumps, when he had made his purchases in the store and urinated outside. He had noticed a vehicle parked about where the eyewitness had parked her vehicle while he was urinating, but he did not remember the eyewitness looking over at him. He got into the truck across the street at the closed gas station, which he thought was abandoned, knowing he did not have the owner's permission to enter it, in order to sleep. However, he did not fall asleep. Thirty to forty minutes later, the officer arrived and defendant showed him his purchases and told him that he was in the truck trying to get some rest or sleep. When the officer asked defendant if he had exposed his genitals, defendant said that he did not that he knew of but he had urinated by the palm tree at the convenience store. However, on cross-examination, defendant admitted that he exposed his penis in order to urinate. Defendant admitted masturbating outside an apartment complex on March 14, 2006. Defendant also admitted masturbating in an alley in the past and telling a police officer on November 22, 2005 that he had done so, although when first approached by them, defendant said he had been urinating.
The jury was instructed that it could consider the fact that defendant had been convicted of burglaries in evaluating his credibility. The jury was told that if it concluded by a preponderance of the evidence that defendant indecently exposed himself previously, it could conclude from this that defendant was disposed or inclined to commit sexual offenses and based on that, also conclude that defendant was likely to commit the charged indecent exposure. Finally, as is pertinent here, the jury was instructed that the People had to prove beyond a reasonable doubt that he willfully exposed his penis in the presence of another person who might be offended or annoyed by this and when he did so, he acted lewdly by intending to direct public attention to his penis for the purpose of sexually arousing or gratifying himself or another or sexually offending another.
Defense counsel argued to the jury that defendant was urinating. He relied on the eyewitness's statement to the dispatcher that, at that time of the call, defendant was not looking at her and he thought that she was not looking at him*fn3 as undermining a finding of intent to sexually arouse or gratify himself or to sexually offend her.
According to the record before us at trial, a deputy followed defendant as he walked from his chair at counsel table to the witness stand. The deputy then variously stood or sat behind defendant, near the jury box, while defendant testified, being sure not to block the jury's view of defendant. He stood "at ease," his gun remained holstered and he did not have his hand on his belt. When defendant finished testifying, the deputy followed him back to his seat at counsel table. Although not ...