1160. Indecent Exposure
The defendant is charged [in Count ______] with indecent exposure.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant willfully exposed (his/her) genitals in the presence of another person or persons who might be offended or annoyed by the defendant's actions;
2. When the defendant exposed (himself/herself), (he/she) acted lewdly by intending to direct public attention to (his/ her) genitals for the purpose of sexually arousing or gratifying (himself/herself) or another person, or sexually offending another person(;/.)
<Give element 3 if defendant charged with entering inhabited dwelling>
[3. The willful and lewd exposure occurred after the defendant had entered an inhabited (dwelling house/part of a building/trailer coach) without consent.]
Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
[It is not required that another person actually see the exposed genitals.]
[A (house/part of a building/trailer coach) is inhabited if someone uses it as a dwelling, whether or not someone is inside at the time of the alleged indecent exposure.]
[A (house/part of a building/trailer coach) is inhabited if someone used it as a dwelling and left only because a natural or other disaster caused him or her to leave.]
[A (house/part of a building/trailer coach) is not inhabited if the former residents have moved out and do not intend to return, even if some personal property remains inside.]
[A house includes any (structure/garage/office/ <insert other description>) that is attached to the house and functionally connected with it.]
[A trailer coach is a vehicle without its own mode of power, designed to be pulled by a motor vehicle. It is made for human habitation or human occupancy and for carrying property.]
[A trailer coach is [also] a park trailer that is intended for human habitation for recreational or seasonal use only and
1. has a floor area of no more than 400 square feet;
2. is not more than 14 feet wide;
3. is built on a single chassis;
4. may only be transported on public highways with a permit.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
Give element 3 if the defendant is charged with entering an inhabited dwelling.
If the defendant is charged with a prior conviction for indecent exposure give CALCRIM No. 3100, Prior Conviction: Nonbifurcated Trial, or CALCRIM No. 3101, Prior Conviction: Bifurcated Trial, unless the defendant has stipulated to the truth of the prior conviction. (See People v. Merkley (1996) 51 Cal.App.4th 472, 476 [58 Cal.Rptr.2d 21]; People v. Bouzas (1991) 53 Cal.3d 467, 477-480 [279 Cal.Rptr. 847, 807 P.2d 1076]; People v. Weathington (1991) 231 Cal.App.3d 69, 90 [282 Cal.Rptr. 170].)
Give the bracketed sentence that begins, "It is not required that another person actually see" on request if the evidence shows that no one actually saw the defendant's genitals. (People v. Carbajal (2003) 114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].)
Elements. Pen. Code, § 314.
Affront Must Be Sexual. In re Dallas W. (2000) 85 Cal.App.4th 937, 939 [102 Cal.Rptr.2d 493]; People v. Archer (2002) 98 Cal.App.4th 402, 406 [119 Cal.Rptr.2d 783] ["sexual affront" means to sexually insult or offend another person].
Exposing Person Must Have Intent to Expose Genitals. People v. Massicot (2002) 97 Cal.App.4th 920, 926-928 [118 Cal.Rptr.2d 705].
Must Expose to Other Person But Other Person Need Not View. People v. Carbajal (2003) 114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].
Lewd Intent Defined. In re Smith (1972) 7 Cal.3d 362, 365-366 [102 Cal.Rptr. 335, 497 P.2d 807].
Lewd Intent Does Not Require That Genitals Be Touched. People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1766 [24 Cal.Rptr.2d 321]; see People v. Meeker (1989) 208 Cal.App.3d 358, 362 [256 Cal.Rptr. 109].
"Private Parts" Means Genitals. People v. Massicot (2002) 97 Cal.App.4th 920, 925, fn. 3 [118 Cal.Rptr.2d 705]; see In re Smith (1972) 7 Cal.3d 362, 366 [102 Cal.Rptr. 335, 497 P.2d 807].
Inhabitation Defined. See Pen. Code, § 459 [in context of burglary].
Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
House Not Inhabited is Former Residents Not Returning. People v. Cardona (1983) 142 Cal.App.3d 481, 483 [191 Cal.Rptr. 109].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Sex Offenses and Crimes Against Decency, §§ 109-112.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes Against Order, § 144.11 (Matthew Bender).
Lesser Included Offenses
Attempted Indecent Exposure. Pen. Code, §§ 664, 314; People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1766-1767 [24 Cal.Rptr.2d 321]; see also People v. Finley (1994) 26 Cal.App.4th 454, 456-459 [31 Cal.Rptr.2d 288] [attempted misdemeanor indecent exposure is not elevated to felony by recidivist provision of Pen. Code, § 314].
Indecent exposure is a misdemeanor if the defendant does not have qualifying priors and the alleged event did not occur in an inhabited dwelling. (Pen. Code, § 314.) If the defendant is charged with one of the factors that elevates the offense to a felony, then the misdemeanor is a lesser included offense.
Soliciting anyone to engage in lewd or dissolute conduct in any public place (see Pen. Code, § 647(a)) is not a lesser included offense of indecent exposure under Penal Code section 314, subdivision 1. (People v. Meeker (1989) 208 Cal.App.3d 358, 361-362 [256 Cal.Rptr. 79] [following construction of "lewd or dissolute conduct" in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 256 [158 Cal.Rptr. 330, 599 P.2d 636]]; contra, People v. Curry (1977) 76 Cal.App.3d 181, 186-187 [142 Cal.Rptr. 649]; People v. Swearington (1977) 71 Cal.App.3d 935, 944 [140 Cal.Rptr. 5].) Burglary is also not a necessarily included offense of unlawful entry for indecent exposure. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1768-1769 [24 Cal.Rptr.2d 321].)
Presence of Others
"[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 must actually have seen the defendant's genitals." (People v. Carbajal (2003) 114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].)
Felony indecent exposure can be the underlying felony to support a burglary charge. (People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1767 [24 Cal.Rptr.2d 321].)
The statute does not require that the defendant expose himself or herself while still in the home. (See People v. Mendoza (2004) 118 Cal.App.4th 571, 575-576 [13 Cal.Rptr.3d 195] [discussing identical language in Pen. Code, § 647.6(a)].) It is sufficient if the defendant engaged in the conduct after entering the home and there is "a clear nexus between the residential entry and the . . . conduct." (Id. at p. 576.)
See the Related Issues section to CALCRIM No. 1701, Burglary: Degrees, for additional authority on "inhabited dwelling house."
(New January 2006)