(Super. Ct. No. CRF073704)
The opinion of the court was delivered by: Hull , J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Gabriel Vonzel Presley of lewd and obscene conduct with a prior conviction (Pen. Code, § 314, subd. (1)--count 1) and disorderly conduct, a misdemeanor (id., § 647, subd. (a)--count 3). The jury acquitted defendant of a second count of lewd and obscene conduct and rejected his claim of insanity. In bifurcated proceedings, the court found a prior strike (id., § 667, subd. (b)-(i)) and three prior prison term (id., § 667.5, subd. (b)) allegations to be true.
Sentenced to state prison, defendant appeals. He contends the trial court abused its discretion in admitting propensity evidence. He further contends the propensity evidence that was admitted should have been sanitized and, if that contention is deemed forfeited, he claims defense counsel rendered ineffective assistance. We affirm the judgment.
About 7:00 a.m. on June 1, 2006, the victim was fueling her 18-wheel truck at a gas station when she saw defendant come out of a hotel across the street, gesturing to cars and singing. Defendant approached the victim. He had both hands inside his pants, was laughing, and appeared to be massaging his penis. As he drew closer to the victim, he exposed his penis and said he wanted her to "suck it" and that he wanted to "fuck" her. He tried to grab her. The victim did not recall at trial whether he actually touched her. She pulled back and told defendant to go away. He laughed. An unidentified man told defendant to go away as well. The victim informed defendant that she was going to call the police. Defendant laughed some more and went into the market at the gas station. The victim and the man called 911.
About five minutes later, defendant came out of market, approached the victim and tried to grab her. She threatened to hit him. Defendant touched himself but the victim did not recall at trial whether he exposed himself again. Defendant returned to the hotel.
A few minutes later, an officer arrived at the gas station. After taking the victim's report, the officer went to the hotel and found defendant. The victim positively identified defendant at a field showup. When told he was being arrested and the reason, defendant became belligerent, yelled profanities and volunteered that he simply wanted to ask the victim about the cab on her tractor. According to the officer, defendant admitted that he grabbed his crotch area over his clothing "in an attempt to maybe start a dating relationship with her, something to that effect, but it was more in . . . vulgarities and just obscene language." Defendant told the officer he wanted to go on a road trip and use the cab of the truck to engage in intercourse.
The prosecution presented propensity evidence. About 5:00 p.m. on June 23, 1994, an officer who was on patrol saw defendant masturbating near a fence while looking towards a playground some 40 to 60 yards away where children and other people were present. When defendant saw the officer, he stopped masturbating and put his penis in his pants. When the officer started to get out of his car to talk to defendant, defendant ran and jumped a fence. Defendant was eventually caught hiding behind a car. The officer returned to the area of the fence and saw no evidence of semen or signs of urination. At the jail, defendant claimed he had been urinating.
Defendant testified. With respect to the prior incident, defendant denied that he had been masturbating, claiming he had just finished urinating when he saw the officer. He acknowledged that he entered a guilty plea to lewd and obscene conduct. With respect to the current offense, defendant denied exposing himself to the victim. He claimed he had not taken his medications that day and was hearing voices. He claimed he commented on the cab of the victim's truck and said, "Maybe you can take me along on your route, possibly we can pull alongside of the road or a rest stop," while laughing and rubbing his crotch over his pants. Defendant claimed the victim got on her cell phone and he walked into the market. When he came out, he went back to the hotel without approaching the victim.
On cross-examination, defendant admitted prior convictions for battery on a correctional officer, pimping and ...