(Super. Ct. No. CR027772)
The opinion of the court was delivered by: Blease , Acting P. 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Paul Anthony Morales pleaded guilty to failing to register as a sex offender (Pen. Code, § 290.012, subd. (a))*fn1 and engaging in lewd conduct (§ 647, subd. (a)). He also admitted to serving a prior prison term. (§ 667.5, subd. (b).) A jury then convicted defendant of indecent exposure (§ 314, subd. 1). The trial court sentenced defendant to an aggregate term of four years in state prison; defendant timely appealed.
On appeal, defendant contends the trial court failed to instruct the jury on the required union of act and intent and imposed an unauthorized misdemeanor sentence. The People concede the latter point. We shall modify the judgment and affirm.
Defendant was charged with misdemeanor failing to register as a sex offender (§ 290.012, subd. (a)), indecent exposure (§ 314, subd. 1), and misdemeanor lewd conduct in a public place (§ 647, subd. (a)). As a sentencing enhancement pursuant to section 667.5, subdivision (b), it was further alleged that defendant previously served a term in prison.
Defendant pleaded guilty to both misdemeanor charges and admitted to serving a prior term in prison, and a jury found him guilty of indecent exposure.
The trial court subsequently sentenced defendant to an aggregate term of four years in state prison: three years for indecent exposure, one year for the prior prison term, and two years for the misdemeanor convictions (to be served concurrently). Defendant was ordered to pay various fines and fees.
Defendant contends the trial court erred in failing to instruct the jury that the crime of indecent exposure requires the concurrence of an act and specific intent. (CALCRIM Nos. 251, 252.) We agree the trial court erred; however, we find the error harmless because the point was covered by another instruction given to the jury. (See People v. Alvarez (1996) 14 Cal.4th 155, 219-220 (Alvarez).)
When a charged crime "requires a specific mental state" the trial court should instruct the jury with CALCRIM No. 251. (Bench Note to CALCRIM No. 251 (2009-2010 ed.) p. 70.) Had the trial court given this instruction, the jury would have been told "that [a] person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and ...