APPEAL from a judgment of the Superior Court of Los Angeles County, Kelvin D. Filer, Judge. (Los Angeles County Super. Ct. No. TA116942)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Reversed in part, affirmed in part and modified.
The trial court convicted Troy Smith (defendant) of five counts of indecent exposure stemming from three separate incidents involving two different groups of witnesses. In the third incident, defendant exposed himself while standing outside a residential window. The occupants of the residence observed defendant exposing himself, and closed the curtain on the window. Re-opening the curtain, they again saw defendant exposing himself. For this conduct, defendant was convicted of two counts of indecent exposure. We conclude there was a single exposure only and reverse one of defendant's convictions. In the unpublished portions of this opinion, we reject defendant's contention of Marsden*fn2 error, and accept his argument that his conduct credits were miscalculated. We reverse the conviction of a single count, modify the conduct credits, and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
a. January 13, 2011 (Counts 1 and 2)
On January 13, 2011, seventeen-year-old Karen M.*fn3 went to throw away trash in a dumpster in the alley behind her apartment. Karen M. noticed defendant by the dumpster, felt uncomfortable, and asked her thirteen-year-old friend, Michelle R., to accompany her. As they approached the dumpster, defendant exposed his penis and began masturbating. Michelle R.'s cousin, Victor F., was visiting and approached the girls by the dumpster. As he approached, defendant pulled up his pants and walked away. Victor F. temporarily left and Michelle R.'s mother and grandmother arrived at the scene. Defendant returned and recommenced masturbating. When Victor F. returned, defendant left on a bicycle.
b. February 22, 2011 (Count 3)
Karen M. was playing basketball with her friend, Gabriela V. and Gabriela V.'s cousin, behind Karen M.'s apartment on February 22, 2011. Defendant stood on the other side of a fence in the alley*fn4 and proceeded to expose his penis and masturbate. From inside the apartment, Gabriela's father heard a commotion and took several photographs of defendant, one of which depicted defendant holding his penis.
c. February 24, 2011 (Counts 4 and 5)
On February 24, 2011, 0.2 miles from the location of the previous two incidents, Maria Hernandez heard a noise outside her living room window and saw defendant masturbating in her backyard. She closed the curtain. Her sixteen-year-old daughter, Abilenne C., entered the room, opened the curtain, saw defendant masturbating, and closed the curtain. Hernandez's other daughter, Yara C. also saw defendant masturbating. It was alleged that the two indecent exposure counts were separated by the opening and closing of the curtain, which gave defendant an opportunity to reconsider his conduct and desist.
Defendant was charged by information with five counts of indecent exposure with a prior conviction (Pen. Code, § 314, subd. (1).)*fn5 It was further alleged that defendant suffered two prior serious felony convictions within the meaning of the "Three Strikes Law" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and served four prior prison terms (§ 667.5, subd. (b)).
During the March 14, 2011 preliminary hearing, defendant pulled his shirt over his head and rested his head on his counsel's table. When Judge Daigh ordered him to sit up and take the shirt off his head, defendant refused and demanded a live lineup. The court called for a recess in order for Deputy Public Defender Joe Burghardt to speak with his client so that the hearing could proceed. Once the hearing resumed, Attorney Burghardt informed the court that defendant wanted a new attorney or he otherwise would not return to the courtroom. ...