Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7752. James T. LaPorte, Judge.
William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Michael Dolida, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Hill, J. and Kane, J.
A jury convicted appellant, Eric Johnson, on eight counts of indecent exposure (counts 1-8/Pen. Code, § 314, subdivision (1)) that Johnson committed while an inmate at Corcoran State Prison. On May 19, 2008, the court sentenced Johnson pursuant to section 1170.1, subdivision (c) to an aggregate term of five years four months consisting of eight consecutive eight-month terms (one-third the middle term of two years) on each count. The court imposed this sentence consecutive to an aggregate sentence of 25 years 8 months Johnson was serving when he committed the instant offenses for a total aggregate term of 31 years.
All further statutory references are to the Penal Code.
On appeal, Johnson contends: 1) the evidence is insufficient to sustain his conviction on count 2; and 2) the prosecutor engaged in prosecutorial misconduct during closing argument. Additionally, we directed the parties to brief whether any part of Johnson’s aggregate sentence he was already serving was unauthorized. We will conclude that Johnson’s sentence includes a prior prison term enhancement that was previously stricken on appeal and we will modify the judgment accordingly. In all other respects, we will affirm.
FACTS
The prosecution evidence established that on January 5, 2006, Correctional Officer L. Kochar was running the shower program at Corcoran State Prison from a control booth that allowed her to look into all of the cells in her tier. At approximately 3: 40 p.m., when Kochar looked into Johnson’s room, she saw him glaring at her with his hand on his penis, masturbating. Kochar ordered Johnson to stop, but he did not comply. During the year and a half that Kochar had worked in the control booth, she had seen Johnson masturbate in front of her at least once a week and each time he was told his behavior was unacceptable.
On November 9, 2006, Correctional Officer A. Briones was distributing medicine to inmates with Vocational Nurse P. Catalano. When Briones looked into Johnson’s cell through a window on the door, she saw Johnson standing in the middle of the cell with his penis outside his boxers, masturbating. Catalano told Johnson to stop, but Johnson continued. Briones was very annoyed and offended by Johnson’s behavior (count 1).
E. Urbano was a clinical case manager at Corcoran State Prison. On March 19, 2008, at 10:30 a.m., she had just finished interviewing an inmate in cell 102 when she looked up and saw Johnson in cell 103 staring at her. Johnson was grinning and looked like he was having a sexual experience. Urbano also saw that Johnson’s arm was in front of him moving in an up and down motion as if he were masturbating. Urbano only saw Johnson from his stomach up and could not see his penis or if he was wearing anything below his waist. Urbano told Johnson to stop and walked away, but Johnson just kept staring at her (count 2).
M. Parsons was a psych tech at the prison. On March 20, 2007, at approximately 8:40 a.m., she was going to each cell assessing each inmate’s mental state. When she looked into Johnson’s cell, she saw him by his bunk smiling at her with his hand on his penis, masturbating. Parsons told him to cover himself, but Johnson did not comply (count 3).
On April 18, 2007, Parsons was making her rounds when she again walked up to Johnson’s cell. Parsons saw Johnson in front of the cell door smiling, with his hand on his penis, masturbating. She told him to stop and that he would be “written up,” but Johnson continued (count 4).
On April 22, 2007, at approximately 11:15 p.m., Correctional Officer L. Perez was conducting an inmate count. When she looked into Johnson’s cell, she saw him about a foot away from the door, looking at her with his hand on his penis, masturbating. Perez told Johnson three times to stop, but he continued (count 5).
A. Morris was a psych tech at the prison. On August 12, 2007, at 8:30 a.m., she was checking on inmates in their cells. When she looked into Johnson’s cell, she saw Johnson with his penis outside his boxers. Johnson looked at Morris and walked toward his cell door. Morris told Johnson to put his penis in his shorts, but Johnson continued to stand by the cell door with his penis exposed (count 6).
On September 11, 2007, Psych Tech Parsons was again making her rounds when she stopped at Johnson’s cell. Parsons saw Johnson standing by his cell door smiling, with his hand on his penis, masturbating. Parsons again told him to stop, but he continued (count 7).
On October 10, 2007, at 4:40 p.m., Sergeant F. Maldonado was escorting a nurse as she handed out medications to inmates in their cells. Maldonado looked into Johnson’s cell and saw Johnson naked, looking at her with one foot on the toilet rim, masturbating. Maldonado kicked the cell door and told Johnson to stop, but he continued (count 8).
On December 29, 2007, at 11: 58 p.m., Correctional Officer B. Martinez was conducting an inmate count. When Martinez looked into Johnson’s cell, she saw him naked, looking at her as he masturbated with one foot on the rim of the toilet and the other on his bunk. Martinez ordered him to stop, but Johnson again failed to comply.
Johnson represented himself at the trial and did not present any evidence. During closing arguments Johnson argued that his conduct did not violate section 314, subdivision (1) because: 1) he did not commit the charged acts in a public place; and 2) he could not have annoyed or offended the victims because they were used to seeing prisoners unclothed. He also did not deny “committing any of the acts the prosecutor charged [him] with.”
DISCUSSION
The Sufficiency of the Evidence Claim
Johnson contends the evidence is insufficient to sustain his conviction on count 2, involving victim Urbano, because the prosecutor did not present any evidence that he exposed his penis during the incident underlying that count. We disagree.
“‘In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]’ [Citation.] We apply the same standard to convictions based largely on circumstantial evidence. [Citation.] And it is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.]” (People v. Carbajal (2003) 114 Cal.App.4th 978, 986-987 (Carbajal).)
“Penal Code section 314, subdivision 1, makes it a crime for a person to ‘willfully and lewdly’ ‘[e]xpose[ ] his [or her] 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....’ 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 others to be offended or annoyed thereby.’ [Citation.]” (Id. at p. 982.)
“[Moreover,] [o]ral statements of counsel may be treated as judicial admissions if they were intended to be such or reasonably construed by the court or the other party as such.” (People v. Jackson (2005) 129 Cal.App.4th 129, 161, fn. omitted.)
Here, Johnson represented himself at trial and during closing arguments stated that he did not deny committing any of the acts he was charged with. The jury could reasonably construe that Johnson intended his statement to be an admission that he committed the charged acts, including the one involving Urbano, because his defense to all the charges was that his conduct did not violate section 314, subdivision (1). Additionally, as the defendant in the case, the jury could simply consider Johnson’s statement as a party admission. (Evid. Code, § 1220.)
In any event, victim Urbano testified that after looking up she saw Johnson grinning at her, looking as if he were having a sexual experience, and moving one arm up and down as if he were masturbating. Further, the prosecution presented evidence of nine other incidents during which Johnson masturbated in front of other female prison personnel with his penis in plain view of the victims. Although victim Urbano did not see Johnson’s exposed penis, the jury could reasonably infer from the other incidents that Johnson had a common scheme or plan to expose his penis and masturbate in front of female prison personnel. (Evid. Code, § 1101, subd. (b); People v. Ewoldt (1994) 7 Cal.4th 380, 393 [“‘The presence of a design or plan to do or not to do a given act has probative value to show that the act was in fact done or not done.’ [Citation.]”) It could also reasonably infer that, in accord with this common scheme or plan, Johnson exposed his penis and masturbated during each of these incidents, including the incident involving victim Urbano.
Johnson relies on Carbajal, supra, 114 Cal.App.4th 978, in support of his insufficiency of evidence claim. In Carbajal, the defendant was charged with two counts of indecent exposure based on two separate incidents at a restaurant during which he was observed by a cashier as he appeared to masturbate at the table where he ate. The cashier did not observe the defendant’s penis on either occasion. On the first occasion the cashier observed the defendant place his hand in his shorts and move his hand up and down for 5 to 10 minutes. Three weeks later, the defendant returned and, after eating, appeared to engage in similar conduct. On that occasion, however, the defendant ejaculated and left semen on the floor. Additionally, the cashier could tell the defendant took his penis out of his shorts and held it in his fist because she could see the skin of his fist “‘[w]hen he made strong movements’” and she saw the semen on the floor. (Id. at p. 981.)
At the conclusion of the prosecution case, the trial court granted the defendant’s motion of acquittal with respect to the indecent exposure offense charge that was based on the first incident. (Carbajal, supra, 114 Cal.App.4th at p. 981.) Thereafter, a jury convicted the defendant of indecent exposure based on his conduct during the second incident. In rejecting the defendant’s sufficiency of the evidence claim, the Carbajal court stated:
“Here, circumstantial evidence shows defendant actually exposed his naked genitals. It includes [the cashier’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, [the cashier] 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.” (Id. at p. 987.)
Carbajal is inapposite because here Johnson admitted he committed the acts charged by the prosecution. Further, unlike Carbajal, the record here contains evidence of a common scheme or plan from which the jury could infer that, in accord with that scheme or plan, Johnson actually exposed his penis and masturbated during the incident involving victim Urbano. Accordingly, we reject Johnson’s sufficiency of evidence claim.
The Alleged Prosecutorial Misconduct
During his rebuttal argument the prosecutor argued:
“Finally, think about what he said [in] his argument. And I can’t remember the exact words, but I just want to ask you, did you interpret what he said as a confession? Just think about that. He said he didn’t deny that these things happened. He just wants you to disregard the law.”
Johnson contends that these comments amounted to prejudicial prosecutorial misconduct because they “went beyond the scope of legitimate argument directed at the evidence.” We disagree.
“[A]s a general matter a claim of prosecutorial misconduct is preserved for appeal only if the defendant objects in the trial court and requests an admonition, or if an admonition would not have cured the prejudice caused by the prosecutor’s misconduct.” (People v. Ledesma (2006) 39 Cal.4th 641, 740.)
Johnson did not object to the prosecutor’s comments or seek a curative admonition. Nor has he shown prejudice or that an admonition would not have cured any alleged prejudice. Thus, he forfeited this issue on appeal. However, even it were properly before us, we would reject it.
“‘A prosecutor’s misconduct violates the Fourteenth Amendment to the United States Constitution when it “infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.] In other words, the misconduct must be “of sufficient significance to result in the denial of the defendant’s right to a fair trial.” [Citation.] A prosecutor’s misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’ [Citation.] The crucial issue ‘“is not the good faith vel non of the prosecutor, but the potential injury to the defendant.”’ [Citation.]” (People v. Adanandus (2007) 157 Cal.App.4th 496, 512-513.)
As discussed earlier, the jury could reasonably have found that Johnson’s statement that he did not deny the acts attributed to him was a judicial admission or a party admission. Thus, the prosecutor’s comment that these remarks amounted to a confession was fair comment on these statements.
However, even if we concluded that the prosecutor’s remarks amounted to prosecutorial misconduct, Johnson was not prejudiced. “Even where a defendant shows prosecutorial misconduct occurred, reversal is not required unless the defendant can show he suffered prejudice. [Citation.] Error with respect to prosecutorial misconduct is evaluated under the standards enunciated in Chapman v. California (1967) 386 U.S. 18, 24 …, to the extent federal constitutional rights were implicated, and under People v. Watson (1956) 46 Cal.2d 818, 836 …, to the extent only state law issues were involved. [Citation.] The federal standard is implicated where the prosecutor’s conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] The state standard applies where the prosecutor uses ‘“‘“deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’”’ [Citations.]” (People v. Adanandus, supra, 157 Cal.App.4th at pp. 514-515.)
Here, the victims’ testimony was unrebutted and Johnson admitted during closing arguments that he committed the acts attributed to him. Further, Johnson’s defenses, i.e., that his conduct was not unlawful because it did not occur in a public place and should not have offended or annoyed the victims because they were used to seeing naked inmates, amounted to no defense at all. Thus, we conclude that even assuming the prosecutor engaged in misconduct as alleged by Johnson, the misconduct was harmless beyond a reasonable doubt.
Johnson’s Aggregate Sentence of 31 Years
Johnson was first sentenced to prison on October 19, 1992, when he received a 16-month term for a conviction of indecent exposure. Since then he has remained in prison custody because in several, separate cases he was convicted on numerous counts of indecent exposure for incidents that happened while he was a prison inmate. He currently is serving a 31-year sentence that includes two prior prison term enhancements. On June 26, 2009, this court directed the parties to brief several issues relating to whether any part of the aggregate term Johnson is currently serving was unauthorized. After considering the parties responses, we conclude that Johnson’s sentence includes a prior prison term enhancement that was stricken in People v. Johnson (2006) 145 Cal.App.4th 895, 909 (Johnson).)
Johnson’s record indicates that on November 8, 2005, Johnson was convicted on one count of indecent exposure and two prior prison terms enhancements were found true. In Johnson, the court held that one prior prison term was improperly imposed because Johnson had not yet served the prison term underlying one of the enhancements. (Johnson, supra, 145 Cal.App.4th at p. 909.) Even though the two 2005 prior prison term enhancements were the only ones ever found true in Johnson’s lengthy criminal record and one was stricken, Johnson’s 31-year sentence contains two prior prison term enhancements. In view of this, we conclude that the court erroneously reimposed the prior prison term enhancement that was previously stricken.
DISPOSITION
The judgment is modified to strike one of Johnson’s prior prison term enhancements and his aggregate sentence is reduced to 30 years. The trial court is directed to issue an amended abstract of judgment consistent with this opinion and to forward a certified copy to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.