Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. FF407823
BAMATTRE-MANOUKIAN, ACTING P.J.
INTRODUCTION
After a court trial, defendant John Hamm was convicted of one felony count of threatening to commit a crime resulting in death or great bodily injury (Pen. Code, § 422) and one misdemeanor count of indecent exposure (Pen. Code, § 314, subd. (1)). The trial court placed defendant on formal probation for one year, suspended imposition of any additional jail sentence or a prison sentence, ordered defendant released to a crisis residential treatment program, and ordered defendant to register pursuant to Penal Code section 290 upon his release from custody, among other terms and conditions.
On appeal, defendant contends there was insufficient evidence to sustain the conviction on each count. For reasons that we will explain, we find no merit in defendant’s contentions and, therefore, we will affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
On September 1, 2004, the victim, S., walked into the men’s bathroom of a McDonald’s restaurant in Morgan Hill between approximately 7:00 and 7:30 p.m. The bathroom contained a sink, one “stand up urinal,” and one toilet stall. As S. entered the toilet stall, he noticed defendant, who was the only other person in the bathroom, standing sideways at the urinal. Defendant turned around towards S. and threatened to rape and sodomize him. Specifically, defendant said “I’m going to fuck you up,” “I’m going to get you from behind,” and “I’m going to rape you.” During this time, S. saw defendant masturbating with one hand, and then saw him take a step towards S. and attempt to grab S. with his other hand. Defendant’s “pants were somewhat up and somewhat down” at this point. S. immediately slammed the door on the toilet stall and locked it from the inside. S. heard the handle on the stall door “jiggling” as defendant unsuccessfully tried to open the stall door from the outside. S. also heard defendant make additional threats before defendant exited the bathroom. Specifically, defendant “kept on mumbling I’m going to fuck you up, I’m going to fuck you up. And he kept on saying I’m going to get him, I’m going to get him.” S. was scared during the incident. S. stayed in the bathroom stall and waited for defendant to leave.
It appeared to S. that defendant was “not all there” on the day of the incident. S. had seen defendant “around Morgan Hill a lot in the past,” and “[h]e didn’t look like he was always there. He looked like he had a mental problem.”
S. eventually exited the stall after defendant left and went to see his fiancée, M., who had been waiting for him outside the restaurant. As S. left the bathroom, he saw defendant sitting on a newspaper stand outside the restaurant and asking other people for money. Defendant asked S. if he had a cigarette, and S. told him “no.” Defendant did not threaten S. at this point in time.
S. rushed to his fiancée, M. When M. saw S., he appeared upset, shocked, scared, and angry.
Within minutes of the bathroom encounter, S. ran across the street and made contact with Morgan Hill Police Officer Michael Brookman. S. described the bathroom incident to Officer Brookman and pointed out the defendant. While he was speaking to Officer Brookman, S. felt afraid of his own “anger.” Officer Brookman described S. as alternating between being angry and being afraid.
Officer Brookman proceeded to make contact with defendant and immediately placed him in custody. When asked his name and birth date, defendant answered and appeared to understand the questions. Defendant looked at Officer Brookman when he responded and defendant “wasn’t saying anything incoherently.”
After defendant’s arrest, Dr. Rudolph Cook, a licensed psychologist, evaluated defendant on three occasions, i.e., October 12, 2004, November 14, 2004, and May 15, 2005, and reviewed psychiatric records maintained by the jail. During the interviews by Dr. Cook, defendant “was correctly oriented as to time, place, person, and situation.” During the May 2005 evaluation, defendant expressed a desire to be released to a drug program.
Dr. Cook diagnosed defendant as having “schizotypical personality disorder” and “a psychotic break schizoaffective” at the time Dr. Cook examined him. Dr. Cook described “schizoaffective” as “a combination of schizophrenia and depressive features.” Dr. Cook opined that defendant suffered from schizoaffective disorder at the time of the offense in September 2004.
The Conviction
The information was filed on March 3, 2006, alleging two counts: threats to commit a crime resulting in death or great bodily injury (Pen. Code, § 422) and indecent exposure (Pen. Code, § 314, subd. (1)). Defendant waived his right to a jury trial. A court trial was held on April 28 and May 3, 2006.
Following the presentation of evidence, the court heard arguments from the People and defense counsel. The People summarized what they believed the evidence had shown and asked that the court find the defendant guilty as charged.
Defense counsel contended there was insufficient evidence regarding the count of indecent exposure, because there was insufficient evidence defendant had exposed his genitalia. Regarding the count for criminal threats, defense counsel contended it is a “specific intent crime,” and the court must find the threat was immediate, specific, and unequivocal. Defense counsel argued the evidence had shown that defendant suffered from mental illness at the time, and there was evidence from which the court could infer that defendant “did not have the requisite specific intent to execute the crime at that time.” Defense counsel also questioned the immediacy and unequivocal nature of the purported threats, while characterizing defendant’s statements as merely being “the product of mental ranting and raving.”
The People, in response, contended there was circumstantial evidence to establish that defendant had exposed himself. Regarding the count for criminal threats, the People argued the totality of the circumstances, including the words used by defendant, the location where the offense occurred, and the manner in which defendant made the threats, supported a finding that a violation had occurred. As for defendant’s mental state, the People described defendant’s communications with S. and the police officer and questioned the doctor’s diagnosis of a personality disorder.
After posing additional questions to counsel and receiving further argument, the court took the matter under submission.
On May 19, 2006, after further argument from counsel, the court rendered its verdict, finding defendant guilty on both counts. The court referred the matter to the adult probation department for a report and recommendation.
On September 7, 2006, defendant was sentenced. The court placed defendant on formal probation for one year, suspended imposition of any additional jail sentence or a prison sentence, ordered defendant released to a crisis residential treatment program, and ordered defendant to register pursuant to Penal Code section 290 upon his release from custody, among other terms and conditions.
DISCUSSION
Defendant filed a timely notice of appeal. Regarding the criminal threat conviction, defendant contends there was insufficient evidence to establish that the crime threatened would result in death or great bodily injury. He also argues “there was an insufficient showing of facts to establish the threat was so unequivocal, unconditional, immediate and specific as to convey a gravity of purpose and an immediate prospect of execution.” Defendant further asserts there was insufficient evidence to show the threat actually and reasonably caused sustained fear.
Regarding the indecent exposure conviction, defendant contends there was insufficient evidence that he exposed his genitalia.
The Standard of Review
In addressing appellate claims of insufficiency of the evidence, our role “is a limited one.” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) We “must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We “ ‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ ” (Id. at p. 576; see also People v. Iniguez (1994) 7 Cal.4th 847, 854.) In conducting this review, we give due deference to the trier of fact in assessing the credibility of witnesses, “and [do] not substitute [our] evaluation of a witness’s credibility for that of the fact-finder. [Citations.]” (People v. Barnes (1986) 42 Cal.3d 284, 303-304.) “In reviewing the evidence, our perspective favors the judgment. [Citation.]” (People v. Matian (1995) 35 Cal.App.4th 480, 484.)
We take note that defendant, in his reply brief, cites In re George T. (2004) 33 Cal.4th 620 (George T.) and In re Ernesto H. (2004) 125 Cal.App.4th 298 (Ernesto H.), in support of the contention that “[t]he appellate court must determine whether the threat was protected speech or not under the independent review standard.” George T. involved the question of whether a high school student’s poem constituted protected speech or a criminal threat under Penal Code section 422. The California Supreme Court held that “a reviewing court should make an independent examination of the record in a [criminal threat, Penal Code] section 422 case when a defendant raises a plausible First Amendment defense to ensure that a speaker’s free speech rights have not been infringed by a trier of fact’s determination that the communication at issue constitutes a criminal threat.” (George T., supra, 33 Cal.4th at p. 632.) The California Supreme Court explained: “Independent review is particularly important in the threats context because it is a type of speech that is subject to categorical exclusion from First Amendment protection, similar to obscenity, fighting words, and incitement of imminent lawless action. ‘What is a threat must be distinguished from what is constitutionally protected speech.’ [Citation.]” (Id. at p. 634.)
The California Supreme Court then distinguished independent review from the substantial evidence standard: “Independent review is not the equivalent of de novo review ‘in which a reviewing court makes an original appraisal of all the evidence to decide whether or not it believes’ the outcome should have been different. [Citation.] Because the trier of fact is in a superior position to observe the demeanor of witnesses, credibility determinations are not subject to independent review, nor are findings of fact that are not relevant to the First Amendment issue. [Citations.] . . . [U]nder the substantial evidence standard, the question is whether any rational trier of fact could find the legal elements satisfied beyond a reasonable doubt, whereas under independent review, an appellate court exercises its independent judgment to determine whether the facts satisfy the rule of law. Accordingly, we will defer to the juvenile court’s credibility determinations, but will ‘ “ ‘make an independent examination of the whole record’ ” ’ [citation], including a review of the constitutionally relevant facts ‘ “de novo, independently of any previous determinations by the [juvenile court]” ’ [citations] to determine whether minor’s poem was a criminal threat entitled to no First Amendment protection.” (George T., supra, 33 Cal.4th at p. 634.)
In Ernesto H., this court applied the independent review standard to determine whether a high school student, who raised a “plausible First Amendment defense,” was properly found by a juvenile court to have violated Penal Code section 71. (Ernesto H., supra, 125 Cal.App.4th at pp. 302-303.) While we conducted an independent review of the first element of the crime, i.e., whether there was a threat to inflict unlawful injury, to determine “whether the minor’s First Amendment rights [were] violated by the juvenile court’s finding that he threatened [a] teacher,” we applied “the customary standard of review for substantial evidence in support of the juvenile court’s finding” as to the second element of the crime that was challenged, i.e., intent to influence the performance of the teacher’s official duties. (See id. at pp. 308, 310-314.)
Penal Code section 71 states: “Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private educational institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense . . . .”
Here, defendant did not raise a “plausible First Amendment defense” below or in his opening brief. Rather, defendant raises the free speech issue for the first time in his reply brief. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) “The California Supreme Court long ago expressed its hostility to the practice of raising new issues in an appellate reply brief.” (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) “ ‘Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant.’ [Citation.]” (Ibid.) Defendant has not offered a reason for failing to assert the First Amendment issue prior to the reply brief. Accordingly, we will not consider this untimely issue, and we will apply the substantial evidence standard in our review of defendant’s criminal threat conviction.
The Criminal Threat Conviction
Penal Code section 422 makes it a crime to “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety . . . .”
The California Supreme Court has identified five elements for the crime of making a criminal threat: “(1) that the defendant ‘willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,’ (2) that the defendant made the threat ‘with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,’ (3) that the threat—which may be ‘made verbally, in writing, or by means of an electronic communication device’—was ‘on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,’ (4) that the threat actually caused the person threatened ‘to be in sustained fear for his or her own safety or for his or her immediate family’s safety,’ and (5) that the threatened person’s fear was ‘reasonabl[e]’ under the circumstances.” (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
Here, defendant challenges the sufficiency of the evidence supporting his conviction for threatening to commit a crime resulting in death or great bodily injury. We now address each of his arguments.
Threat to Commit a Crime Which Will Result in Death or Great Bodily Injury
In order for a threat to violate Penal Code section 422, the defendant must “willfully threaten[] to commit a crime which will result in death or great bodily injury to another person . . . .” While acknowledging the threats in this case involved rape and/or sodomy, defendant contends “[r]ape and sodomy are not crimes that would result in death or great bodily injury per se,” and thus there was insufficient evidence to support the criminal threat conviction. Defendant characterizes his statements as “no more than inarticulate ramblings of misplaced sexual desire without the use of force or actions to carry them out.”
In determining whether a particular threat is a criminal threat, we consider all of the circumstances surrounding the threat including the words used, the manner in which the communication is made, the prior relationship of the parties, and the actions of the accused after communicating the threat. (In re Ryan D. (2002) 100 Cal.App.4th 854, 860.) The phrase “great bodily injury” in Penal Code section 422 has been interpreted to mean “ ‘a significant or substantial physical injury.’ ” (See People v. Maciel (2003) 113 Cal.App.4th 679, 686, citing Pen. Code, § 12022.7, subd. (f).) Defendant points out that in the context of great-bodily-injury enhancements, the California Supreme Court has interpreted “great bodily injury” as requiring injury substantially beyond that necessarily present in the offense. (See People v. Escobar (1992) 3 Cal.4th 740, 745-750.)
Here, the circumstances in which defendant threatened to rape S. support a finding that defendant made a threat of great bodily injury. In addition to threatening to rape S., defendant repeatedly stated to S.: “I’m going to fuck you up.” He also attempted to grab S. and attempted to enter the bathroom stall after S. had closed the stall door and locked it. In light of defendant’s statements, both before and after S. locked himself in the bathroom stall, the trial court reasonably concluded that defendant had threatened to commit a crime which would result in great bodily injury to S., beyond the threatened rape itself.
Threat Conveying a Gravity of Purpose and Immediate Prospect of Execution
As stated above, Penal Code section 422 requires the threat to be “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, . . .” Defendant contends the evidence does not support this element, given the testimony by S. that defendant was “not all there” on the day of the incident, defendant’s “known history” of mental health issues, and S. had a non-threatening encounter with defendant after the bathroom incident when defendant asked S. for a cigarette. Defendant contends this evidence demonstrates the “threat was not set in a context of action that was immediate and unequivocal . . . .”
“ ‘The use of the word “so” indicates that unequivocality, unconditionality, immediacy and specificity are not absolutely mandated, but must be sufficiently present in the threat and surrounding circumstances to convey gravity of purpose and immediate prospect of execution to the victim.’ ” (People v. Bolin (1998) 18 Cal.4th 297, 340, quoting People v. Stanfield (1995) 32 Cal.App.4th 1152, 1157.) As we stated above, the nature of the threat must be determined by examining the context in which the statement was made. “The surrounding circumstances must be examined to determine if the threat is real and genuine, a true threat.” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1137 (Ricky T.).)
Defendant cites Ricky T. in support of his contention that the context demonstrates the lack of immediacy and unequivocality of his statements. In Ricky T., the appellate court reversed the juvenile court’s jurisdictional finding that the minor had committed a criminal threat. The alleged threat consisted of the minor cursing his high school teacher after the teacher opened a door that struck him. The minor either stated to the teacher, “ ‘I’m going to get you,’ ” or “ ‘I’m going to kick your ass.’ ” (Ricky T., supra, 87 Cal.App.4th at pp. 1135-1136.)
The Court of Appeal explained that the words constituting the alleged threat must be viewed in context: “Respondent relies too much on judging a threat solely on the words spoken. It is clear by case law that threats are judged in their context. [Citations.] By this standard, appellant’s ‘threats’ lack credibility as indications of serious, deliberate statements of purpose. The lack of surrounding circumstances information is striking.” (Ricky T., supra, 87 Cal.App.4th at p. 1137, fn. omitted.) The court looked at the parties’ interactions before, during, and after the incident. The court found there was no evidence to suggest the minor and the teacher “had any prior history of disagreements, or that either had previously quarreled, or addressed contentious, hostile, or offensive remarks to the other.” (Id. at p. 1138.) At the same time, there was no evidence the “angry words” by the minor “were accompanied by any show of physical violence . . . .” (Ibid.) The court noted that after the incident, the minor was merely sent to the school office, the police were not called until the next day, and the police did not interview the minor a second time until one week later. (Id. at pp. 1137-1138.) The court also found the “ ‘I’m going to get you’ ” remark to be ambiguous, while the minor’s curse of “ ‘I’m going to kick your ass’ ” was in response to being hit by the door. (Id. at p. 1138.)
The context in which the alleged threat was uttered in Ricky T. is distinguishable from the context in this case. Here, defendant threatened to “rape” and “fuck . . . up” S. while defendant was masturbating in a public restroom. There is no evidence that S. provoked the comments from defendant. The threat was made in a small bathroom, where no one else was present except S. and the defendant. While the threat was being made, defendant attempted to grab S. When S. heard defendant’s threat, he immediately shut and locked the bathroom stall door, whereupon defendant unsuccessfully attempted to enter the stall by “jiggling” the handle on the door. Defendant also complained to a police officer shortly after the incident occurred, and defendant was immediately arrested after the police officer made contact with him.
The immediacy and unequivocality of the threat in this context is not lessened by the fact that S. perceived defendant as “not all there” on that day or on other occasions. S. made clear during his testimony that defendant was not simply mumbling to himself, but rather was directing his comments to S. Further, S. indicated that defendant was looking him in the eye while masturbating.
Similarly, the immediacy and unequivocality of the threat is also not lessened by the fact that defendant made no further threats outside the bathroom when defendant asked S. for a cigarette. While in the bathroom defendant’s comments were accompanied by overt acts consistent with an intent to carry out the threat, e.g., defendant was masturbating in a public restroom, attempted to grab S., and attempted to open the stall door after S. had closed and locked it. Consequently, while defendant apparently gave up further attempts to threaten or attack S. after both were outside the bathroom and in public, there is sufficient evidence based on the statements and events occurring in the bathroom to convey a gravity of purpose by defendant and an immediate prospect of executing the threat.
In sum, considering all of the surrounding circumstances—including the nature of the threat, defendant’s act of masturbation while the threat was made, defendant’s movements towards S. before and after S. locked the bathroom stall door, and S.’s attempt to involve law enforcement—defendant’s statements were sufficient to have constituted a criminal threat. A rational trier of fact could have readily concluded that defendant’s statements were “so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat.” (Pen. Code, § 422.)
Reasonably in Sustained Fear
Penal Code section 422 requires the victim “reasonably to be in sustained fear for his or her own safety.” This element “has a subjective and an objective component.” (Ricky T., supra, 87 Cal.App.4th at p. 1140.) In other words, “[a] victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (Ibid.) “ ‘Sustained fear’ ” means “a period of time ‘that extends beyond what is momentary, fleeting, or transitory.’ ” (Ibid., quoting People v. Allen (1995) 33 Cal.App.4th 1149, 1156.)
Here, defendant contends there was insufficient evidence to show the threat actually and reasonably caused sustained fear. According to defendant, S. “testified that he was not afraid of what [defendant] would do as much as he was afraid of his own anger in response to this bathroom encounter.” Further, defendant did not threaten S. when he later asked for a cigarette, S. perceived defendant as being “not all there” on the day in question, S. was able to report the incident to the police and summon help within minutes of the encounter, and S. observed defendant’s arrest shortly after reporting the incident to the police. Additionally, there was no evidence showing a “history of antagonism or violence between the parties to put the threat to rape or sodomize into a category where it could be viewed as a criminal act.” Defendant thus contends any fear by S. was not reasonable.
Defendant also contends that any fear was momentary, fleeting, and transitory, in light of the incidents that transpired after the bathroom incident, including the non-threatening cigarette request, S.’s ability to immediately report the incident to the police, the immediate response by police, and S.’s feelings of anger.
We find defendant’s contentions without merit. First, there is sufficient evidence S. was in actually in sustained fear. When asked how he felt when defendant threatened him in the bathroom, S. testified: “I was scared. I was starting to go into a panic attack. I felt like I had -- was ready to defend myself.” When defendant attempted to grab S., he immediately slammed the bathroom stall door and locked it. S. testified that when he heard the handle “jiggling,” he was scared. S. remained in the bathroom stall until defendant exited the bathroom. S. indicated that he did not wash his hands before he left the bathroom, because he “was too afraid” and he “just wanted to get home.” In sum, S.’s testimony as to how he felt, as well as his conduct in the bathroom, support a finding that S. was actually in fear of defendant during the time S. was in the bathroom.
S. reported the incident to Officer Brookman the same day. When asked how he felt while he made the report, S. testified as follows:
“[PROSECUTOR]: When you were speaking to Officer Brookman were you still afraid?
“[S.]: Yes, I was, but I knew he was there for my help.
“[PROSECUTOR]: The things that the defendant was saying to you, were you afraid that he was going to cause you bodily harm?
“[S.]: Yes.
“[PROSECUTOR]: Were you afraid that he was going to injure you?
“[S.]: No, Sir.
“[PROSECUTOR]: What were you afraid of?
“[S.]: My anger. Knowing that -- because I used to run the streets, and knowing that I have a real hard anger problem. And I’m trying to deal with it day by day. And I -- you know, I used to be somebody that just wouldn’t give a crap and I would have tooken care of it myself. But to tell you the truth I gave my life to Christ and I’m working out my problems.”
This testimony was focused on the time period after S. had left the bathroom and had finally made contact with the police. S. previously testified that while he was in the bathroom, he was afraid, he attempted to lock himself in the stall, and he remained in that location until defendant exited the bathroom. He also did not wash his hands when leaving the bathroom, because he was afraid and wanted to go home. Upon exiting, and notwithstanding the non-threatening interaction with defendant regarding a cigarette, S. ran across the street to report the incident to Officer Brookman. That S. was afraid for his own safety is consistent with his testimony as to how he felt while in the bathroom, and consistent with his conduct leading up to the report to Officer Brookman. Moreover, S.’s fiancée and Officer Brookman each testified that S. appeared scared or afraid, in addition to appearing angry. Obviously, a victim may experience many emotions, including fear and anger. S.’s conduct in the bathroom and in making the report to Officer Brookman is consistent with a finding that S. was actually in sustained fear. The evidence establishes that S.’s fear was not limited in time to the moments of his encounter with defendant, but rather continued even after defendant left the bathroom. That defendant did not make further threats outside the bathroom, that S. was able to make contact with Officer Brookman shortly after the incident, that defendant was arrested the same day, and that defendant appeared “not all there” do not preclude the trier of fact from reasonably concluding that S. was actually in sustained fear while in the bathroom, upon exiting the bathroom, and at least until he made contact with the police officer, whereupon feelings of anger also appeared in S.
Second, given the circumstances of the encounter, the sustained fear experienced by S. was reasonable. As described above, defendant made the threat to “rape” and “fuck . . . up” S. while defendant was masturbating in a small, otherwise unoccupied restroom. While the threats were being made, defendant attempted to grab S. When S. heard defendant’s threats, he immediately shut and locked the bathroom stall, whereupon defendant unsuccessfully attempted to enter the stall by “jiggling” the handle on the bathroom stall door. Defendant continued to threaten S. while he was in the locked stall. In this context, fear experienced by the victim would be reasonable. It was also reasonable for S. to remain in fear even after defendant exited the bathroom, given the vulgar nature of the threat, the confined space in which it was made, and the overt acts by defendant in accordance with the threat. Moreover, S. would not know whether defendant might return to the bathroom.
Further, that S. perceived defendant as having a mental problem would not necessarily lessen the fear, because the uncertainty regarding the nature of defendant’s condition could add to S.’s fear in this context. Additionally, in response to questioning regarding whether defendant was talking to himself in the bathroom, S. repeatedly indicated that defendant’s comments were directed at him. S. disputed defense counsel’s characterization of the incident as simply defendant mumbling to himself. S. also indicated that defendant was looking him in the eye while masturbating. In this context, it was reasonable for S. to take defendant’s threat seriously and to experience fear.
Moreover, the fact that defendant did not again threaten S. outside the bathroom, and S. was able to successfully involve law enforcement thereafter, does not compel a finding that any fear through the point the police became involved was unreasonable or only momentary, fleeting, or transitory. Defendant’s failure to continue to threaten S. outside the bathroom would not necessarily lessen the fear already generated by the specific, vulgar threat made inside the bathroom and the overt acts by defendant in the bathroom that were consistent with the threat. Further, without any evidence as to how much time transpired between defendant’s first comment to S. and his report of the incident to Officer Brookman (at most, there was evidence that S. reported the bathroom incident to Officer Brookman within minutes of the encounter occurring), and given the nature of events in the bathroom, we find that the circumstances of the incident could reasonably generate sustained fear, notwithstanding what occurred outside the bathroom.
We therefore conclude that the evidence was sufficient to support the finding of guilt on the charge of making a criminal threat in violation of Penal Code section 422.
The Indecent Exposure Conviction
Penal Code section 314, subdivision (1) makes it a crime for a person “who willfully and lewdly . . . [e]xposes his 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. . . .” (Pen. Code, § 314, subd. (1).) “Generally, a conviction for indecent exposure requires proof of two elements: ‘(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.’ ” (People v. Carbajal (2003) 114 Cal.App.4th 978, 982 (Carbajal), quoting People v. Swearington (1977) 71 Cal.App.3d 935, 943.)
Here, defendant contends there was insufficient evidence that he exposed his private parts. The trial court, in finding defendant guilty of indecent exposure, stated that it had not been established beyond a reasonable doubt that the victim saw defendant’s genitalia. The question on appeal therefore, is whether there was sufficient circumstantial evidence that defendant exposed his genitalia.
In Carbajal, a Court of Appeal addressed the question of whether a conviction for indecent exposure was valid, where there was no evidence that anyone saw the defendant’s naked genitals. (Carbajal, supra, 114 Cal.App.4th at 980.) After reviewing the common law and cases from other jurisdictions, the Court of Appeal concluded: “[A] conviction for indecent exposure under Penal Code section 314, subdivision 1 requires evidence that a defendant actually exposed his or her genitals in the presence of another person, but there is no concomitant requirement that such person actually must have seen the defendant’s genitals. Thus, we will uphold defendant’s conviction for indecent exposure in the absence of evidence of any direct visual observation of his genitals so long as there is sufficient circumstantial evidence to show that actual exposure occurred.” (Id. at p. 986.)
The Court of Appeal then addressed whether there was sufficient circumstantial evidence to support the indecent exposure conviction. A restaurant employee had observed the defendant on two different occasions apparently masturbating at a table. The first time, “defendant placed his fist inside his shorts and moved his hand up and down for about 5 to 10 minutes.” (Carbajal, supra, 114 Cal.App.4th at p. 981.) A few weeks later, the defendant engaged in similar conduct, except that he also “ejaculated onto the floor beneath the table. The area had been clean before defendant sat there. Prior to leaving the restaurant, defendant wiped his hand off with a napkin and threw a newspaper on top of the puddle of semen. The police officers who later took a report of the incident did not collect a sample of the semen.” (Ibid.)
The employee did not see the defendant’s penis on either occasion. (Carbajal, supra, 114 Cal.App.4th at p. 981.) She also was not sure whether “defendant had his fist on his penis during the first incident, but the second time she was sure that he did. On that occasion, defendant wore a t-shirt that fell below his crotch and a pair of loose-fitting, knee-length shorts. Although [her] view of defendant’s genitals was partially obscured by chairs and by his clothing, she could tell he had taken his penis out of his shorts while holding it in his fist because she could see the skin of his fist ‘[w]hen he made strong movements . . . .’ She recognized the white substance deposited on the floor underneath the table as semen. Another restaurant employee also saw defendant moving his fist up and down in his crotch area during the second incident, but she could not tell if his hand was inside or outside of his shorts.” (Ibid.)
The Court of Appeal found sufficient circumstantial evidence that the defendant “actually exposed his naked genitals.” (Carbajal, supra, 114 Cal.App.4th at p. 987.) The court explained that the evidence included “Villa Bueno’s testimony regarding defendant’s hand movements, which were open to view, and her observations about the semen deposited beneath the table. Although neither she nor her coworker actually saw defendant’s genitals, Villa Bueno testified that she saw the bare skin of his fist as it was wrapped around what appeared to be his penis while he moved it up and down in his crotch area. It is reasonable to conclude that defendant exposed his penis by taking it out of his shorts and holding it in his fist as he masturbated in the restaurant. Had the penis not been exposed, arguably the semen would have been deposited on defendant’s clothing rather than on the floor when he ejaculated. Testimony that the substance was semen and not something else was an issue of fact for the jury’s determination.” (Ibid.)
In the present case, there is sufficient, circumstantial evidence to support a finding that defendant “actually exposed his naked genitals.” Although S. testified that he did not see defendant’s penis, he did see defendant’s “hand moving” which S. characterized as defendant “playing with his penis” and “jacking off” or masturbating. Specifically, S. testified as follows:
“[PROSECUTOR]: When he said that he was going to fuck you up, what did you take his meaning to be?
“[S.]: That he was going -- because I noticed he was playing with his penis -- that he was going to try to get me in my ass.
“[PROSECUTOR]: What was he doing when he was playing with his penis?
“[S.]: He was jacking off, Sir.
“[PROSECUTOR]: Was his penis exposed outside of his clothing?
“[S.]: I didn’t see, Sir.
“[PROSECUTOR]: Do you remember what -- was his penis in his right hand or his left hand.
“[S.]: In his right hand, Sir.
“[PROSECUTOR]: As he was saying these things did the defendant attempt to make contact with you or grab you?
“[S.]: He tried to grab me, Sir, but I locked -- as I immediately slammed the door on the stall and locked it he couldn’t get to me.
“[PROSECUTOR]: Which hand did he use to try to grab you?
“[S.]: With his left hand, Sir.
“[PROSECUTOR]: When you said that he was jacking off you mean masturbating?
“[S.]: Yes, Sir.
“[PROSECUTOR]: When the defendant said that he was going to fuck you up, how did that make you feel?
“[S.]: I was scared. I was starting to go into a panic attack. I felt like I had -- was ready to defend myself.
“[PROSECUTOR]: Could you see the defendant’s penis in his hand?
“[S.]: Yes, I could, Sir.”
Defense counsel eventually cross-examined S. During cross-examination, S. explained:
“[S.]: He’s standing towards me. He’s standing taking a step towards me and going with his left hand towards me, with his hand -- with his right hand on his penis.
“[DEFENSE COUNSEL]: All right. When you said he had his right hand on his penis you said that he was facing directly toward you or kind of to the side?
“[S.]: He’s coming towards me, yeah.
“[DEFENSE COUNSEL]: My question is facing you. Is he facing you face on?
“[S.]: He started turning around to face me, no.
“[DEFENSE COUNSEL]: Were his pants up?
“[S.]: His pants were somewhat up and somewhat down, knowing like you would take a pee.
“[DEFENSE COUNSEL]: Okay. Now you were asked by [the prosecutor] whether or not you saw [defendant’s] penis outside of his clothing and you said you did not see --
“[S.]: I didn’t see it, Ma’am, because I have respect.
“[DEFENSE COUNSEL]: If we can have just a second. [¶] . . . Let me just have you respond. You did not see it outside his clothing?
“[S.]: No.
“[DEFENSE COUNSEL]: You did not?
“[S.]: No, I didn’t.
“[DEFENSE COUNSEL]: And so when you’re talking about his gesturing with his right hand when you say jacking off that’s because of the motion with this right hand?
“[S.]: He was jacking off, Ma’am.
“[DEFENSE COUNSEL]: But what I’m saying is you the action?
“[S.]: Yes, Ma’am.
“[DEFENSE COUNSEL]: You did not see his penis at any time?
“[S.]: No, Ma’am, I saw his hand moving.”
On redirect examination, S. further testified as follows:
“[PROSECUTOR]: The action of defendant jacking off, what led you to believe that he was jacking off?
“[S]: Because I saw the hand motions. I saw his hand moving, Sir. I did not look no further than what his hand was doing, Sir.
“[PROSECUTOR]: Did you tell Officer B[r]ookman that day that you in fact did see the defendant’s penis?
“[S]: I don’t recall, Sir.”
Based on S.’s testimony, there was sufficient circumstantial evidence supporting “actual exposure.” S. testified that he saw defendant’s pants “somewhat up and somewhat down.” S. also testified that he saw defendant “jacking off” based on defendant’s hand motions, rather than merely testifying that defendant’s hands were in the vicinity of defendant’s genitals. Given these two aspects of S.’s testimony, i.e., regarding defendant’s pants and act of masturbation, the factfinder could reasonably infer that defendant was masturbating outside of his pants, and that therefore defendant had actually exposed his genitalia in the bathroom at the time S. was present.
Indeed it is clear from the record that the trial court, who was the factfinder in this case, carefully considered the issue of exposure and whether the evidence supported such a finding. After the close of evidence, the trial court heard argument from counsel regarding, among other things, whether the evidence was sufficient to establish an indecent exposure by defendant. The court summarized the evidence and issue as follows: “[I]t would be one thing if [S.] came into the bathroom, observed the defendant at the urinal, the defendant spin[s] around, and he immediately avert[s] his eyes. Or he spun around and saw his hand in the area of his genitals and he immediately averted his eyes. I’m not sure that that would show anything of a criminal nature standing alone. In this case we have direct testimony that the defendant was masturbating or making motions consistent with masturbating or the more descriptive word the witness used. That is in the Court’s view a fact that is different or significantly different that just saying the defendant’s hand was in the area of his genitals. Because I would certainly agree that if you have a defendant at the urinal the fact his hand is around his genitals is not surprising for any person. But that’s not what the testimony here is. The testimony is more specific as to whether the witness observed in that regard. And the issue is observing the defendant in the bathroom with the observations he made combined with the verbal comments he made, is that sufficient circumstantial evidence to establish his guilt?”
After further argument from counsel, the court took the matter under submission, indicating: “I’m going to go read Carbajal again, but just to be fair I’m leaning and thinking that there is sufficient circumstantial evidence under the totality of the circumstances to establish the acts required under [Penal Code section] 314.”
Approximately two weeks later, the court rendered its verdict. Regarding the count for indecent exposure, the trial court explained: “As to count 2, there are multiple issues that arise, the first being the required act. In that regard, the court is well aware, has reviewed the [Carbajal] case -- I know counsel both are well aware of it, and it’s been argued into the record -- as to whether the act required for count 2, the indecent exposure, has been established. [¶] The court is satisfied, under [Carbajal] that it can be established by circumstantial evidence. The court is also satisfied, although there are conflicts in the evidence, that it has not been established beyond a reasonable doubt that the victim saw the defendant’s penis . . . . [¶] And the court is satisfied that, in fact, he testified, in the court’s view, credibly that he observed the defendant making motions that were consistent with a conclusion of masturbation. [¶] The fact of a [Penal Code section] 314, the act fact, can be established by circumstantial evidence. The court has considered the reasonable interpretations to be drawn, one interpretation being, from the totality of the evidence, what was said by the defendant, what was observed by the victim, that the defendant, in fact, had exposed himself. [¶] The other interpretation the court is asked to consider is that the defendant -- either his penis was not exposed or it was out only to facilitate urinating in the urinal. [¶] The court, when the court takes the testimony of the victim as to what was said and the -- to use the victim’s words ‘jacking off’ of the defendant, the court is satisfied that the only reasonable interpretation to be drawn from the evidence, circumstantial evidence, is that the defendant’s penis was exposed and that it was exposed with a sexual aspect to it. [¶] The court notes that [Carbajal] involved a different quantum of circumstantial evidence, specifically, a discharge. The court does not believe that [Carbajal] stands for the proposition that such a discharge is a necessary presence or element for conviction or proof of the act.”
As the reviewing court, we give due deference to the trier of fact in assessing the credibility of a witness, and we will not substitute our interpretation of the evidence for the factfinder’s, where the evidence reasonably supports the judgment. Moreover, our standard of review does not change when the issue involves circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) “ ‘ “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (Ibid.)
Here, the trial court found credible the testimony of S. that defendant was masturbating. The trial court also drew a reasonable interpretation from the testimony that defendant’s act of masturbation occurred with his genitals outside of his pants. In this regard, despite the fact that S. did not actually see defendant’s penis, there was no evidence suggesting that defendant’s right hand was inside his pants while masturbating, nor was there any evidence to suggest that S. had been fooled or was mistaken in what he saw when he testified that he saw defendant “jacking off,” e.g., defendant was merely gesturing with his hand and not actually holding his genitals. We also note that defendant does not identify any fact in the record that is inconsistent with the inference drawn by the factfinder, e.g., verbal conduct or overt physical acts by defendant that are inconsistent with a finding of exposure. In determining that only one inference was reasonable from the testimony, i.e., that an indecent exposure had occurred, the trial court, as factfinder, found the victim’s testimony credible and was entitled to draw reasonable inferences therefrom, i.e., that defendant’s act of masturbation involved manipulation of his exposed genitals.
Where the victim sees the defendant’s pants partly “down” and sees the defendant masturbating--although not actually seeing the penis itself, we will not require the victim to look longer or more intently at the defendant’s genitals in order to conclude defendant indecently exposed himself. Defendant’s intent to indecently expose himself should not be eliminated by the fortuity that his act of masturbation prevented the victim from viewing his naked genitals.
Defendant contends the facts of this case are similar to Commonwealth v. Arthur (1995) 420 Mass. 535 (Arthur), which was discussed briefly in Carbajal, supra, 114 Cal.App.4th 978. In Arthur, the defendant was found guilty of indecent exposure under Massachusetts law. The Supreme Judicial Court of Massachusetts reversed the conviction. (Arthur, supra, 420 Mass. at pp. 535-536.) The defendant had walked in front of a vehicle, in which the victim and her nine-year-old daughter were sitting. The defendant was wearing a tank top and shorts, as described by the mother, or tank top and bathing suit, as described by the daughter. The mother saw the defendant lower his shorts, but averted her eyes after she saw what she believed was pubic hair. (Id. at p. 536.)
The daughter “saw the defendant pull the waistband on the right side of his bathing suit down to his knees. The daughter indicated that, as the defendant did this, the left side of his bathing suit ‘jerked’ down to his mid-thigh. The defendant did not have any clothes on under his bathing suit, and his movement revealed his crotch area and pubic hair to the daughter, who also immediately turned her attention away. Neither the mother nor the daughter saw any portion of the defendant’s genitalia or buttocks.” (Arthur, supra, 420 Mass. at p. 536.)
In finding insufficient evidence that defendant exposed his genitalia, the Supreme Judicial Court of Massachusetts explained: “The point is close, but we agree with the defendant’s contention that the evidence did not warrant the conclusion that the defendant had exposed his genitalia. We do not deem the daughter’s testimony concerning the defendant’s pulling down of the right side of his bathing suit or shorts as sufficient to support an inference by the jury beyond a reasonable doubt that his conduct at that point had necessarily exposed some portion of his genitalia.” (Arthur, supra, 420 Mass. At p. 537.) In a footnote, the court stated: “Our agreement with the defendant’s argument concerning the sufficiency of the evidence will not benefit the individual whose conduct is sufficiently offensive that his victims turn away before he has completed an act of indecent exposure. There may be evidence sufficient to prove that exposure of genitalia occurred, even when a victim has averted his or her eyes. Such evidence was lacking in this case.” (Id. at p. 537, fn. 2.)
In contrast to the facts in Arthur, here S. testified to seeing more than defendant’s pants being “somewhat up and somewhat down.” S. also testified to seeing defendant “jacking off” based on defendant’s hand motions. This additional evidence, beyond the location of defendant’s pants, was sufficient evidence that defendant actually exposed his genitalia.
Defendant also suggests that any exposure was not indecent, given that he was in a public restroom using a urinal. However, S. testified that defendant was masturbating and threatening to rape him. Thus, substantial evidence supports the trial court’s finding that the exposure was lewd, as opposed to a lawful or otherwise inoffensive use of a public restroom. (See In re Smith (1972) 7 Cal.3d 362, 366 [defendant’s conduct must be sexually motivated in order to constitute a “lewd” exposure within the meaning of Penal Code section 314; defendant must “intend[] by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront”].)
We therefore find that the evidence was sufficient to support the finding of guilt on the charge of indecent exposure in violation of Penal Code section 314, subdivision (1).
DISPOSITION
The judgment is affirmed.
WE CONCUR: MIHARA, J., MCADAMS, J.