CALCRIM No. 1160. Indecent Exposure (Pen. Code, § 314)

Judicial Council of California Criminal Jury Instructions (2020 edition)

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(iii) Conduct in Public
1160.Indecent Exposure (Pen. Code, § 314)
The defendant is charged [in Count ] with indecent exposure [in
violation of Penal Code section 314].
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;
[AND]
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.>
[AND]
[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
950
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;
AND
4. may only be transported on public highways with a permit.]
New January 2006
BENCH NOTES
Instructional Duty
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].)
AUTHORITY
• 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].
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• 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. 79].
• “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].
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].)
RELATED ISSUES
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
CALCRIM No. 1160 SEX OFFENSES
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person must actually have seen the defendant’s genitals.” (People v. Carbajal (2003)
114 Cal.App.4th 978, 986 [8 Cal.Rptr.3d 206].)
Burglary
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].)
After Entering
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.”
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Sex Offenses and
Crimes Against Decency, §§ 126-129.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 144, Crimes
Against Order, § 144.11[1] (Matthew Bender).
Couzens & Bigelow, Sex Crimes: California Law and Procedure §§ 12:16, 12:17
(The Rutter Group).
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