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F 10.38 n1 Felony Indecent Exposure: Priors — Stipulation/ Bifurcation (PC 314.1).
SUBSEQUENT HISTORY: In its July 1997 Pocket Part, CALJIC followed FORECITE’s lead and included reference to People v. Bouzas and People v. Merkley.
1. Priors: Stipulation/Bifurcation.
The use note to CJ 10.38 (January 1991 pocket part) states that it is “mandatory” that the prior conviction be proved to the trier of fact in open court. (People v. Hucks (90) 217 CA3d 260 [266 CR 169].) However, Hucks has been effectively overruled by People v. Bouzas (91) 53 C3d 467 [279 CR 847]. Hucks assumed that a prior conviction charged per PC 314.1 is an element of the offense. This assumption was reached by analogizing PC 314.1 to a prior charged with a petty theft (PC 666) which — at the time Hucks was decided — was considered to be an element of the offense.
Bouzas, however, held that a prior petty theft is not an element of a PC 666 charge. (Bouzas at 478.) Hence, Bouzas requires rejection of Hucks’ conclusion that a prior charged under PC 314.1 is an element of the offense. Accordingly, the defendant should be allowed to stipulate to the prior. (See People v. Weathington (91) 231 CA3d 69, 87-90 [282 CR 170] [Bouzas analysis applied to DUI prior per VC 23550 (former VC 23175), can bifurcate, don’t have to stipulate]; People v. Young (91) 234 CA3d 111 [285 CR 583] [Bouzas analysis applied to felony vehicle theft with a prior per PC 666.5 / VC 10851]; see also FORECITE F 12.65 n2 and FORECITE F 14.40 n1 and n2.)
In People v. Merkley (96) 51 CA4th 472 [58 CR2d 21] the trial judge, who apparently had not read FORECITE, admitted evidence of the defendant’s prior conviction despite the defendant’s motion to preclude the jury from learning of the offense to which the defendant had stipulated. The trial court relied on People v. Hucks (90) 217 CA3d 260, 269 [266 CR 169] (cited with approval in the CJ use note) which held that the prior conviction in a PC 314 offense is an element of the charge that must be proven in open court. However, as set forth in FORECITE’s analysis shortly after the opinion of People v. Bouzas (91) 53 C3d 467 [279 CR 847], Bouzas requires “rejection of Hucks’ conclusion that a prior charged under PC 314 is an element of the offense.” Due to the trial court’s unawareness of this analysis, the prior was improperly admitted before the jury and the conviction was reversed on appeal. (Merkley, 51 CA4th at 476-77.)
As to bifurcation, see FORECITE F 12.65 n2 and FORECITE EA II(B).
(See FORECITE EA V(B) – EA V(D).)
F 10.38a
Indecent Exposure: Requirement That Bare Genitals Be Displayed
* Modify Elements 1 and 2 of CJ 10.38 as follows [added language is capitalized; deleted language is between << >>:
1. A person intentionally exposed [his] [her] [person] [<<private parts>>BARE GENITALS] [in a public place] [or] [in any place where there were present other persons to be offended or annoyed];
2. That person did so with the specific intent to direct public attention to [his] [her] [person] [<<genitals>>BARE GENITALS] for the purpose of [his] [her] own sexual arousal or gratification, or that of another, or to annoy or offend others;
Points and Authorities
People v. Massicot (2002) 97 CA4th 920, 932 [118 CR2d 705] held that indecent exposure under PC 314 requires the display of bare genitals. (The statutory term “private parts” refers to genitals. (See id. at fn. 3.))
The 7th Edition revisions of CALJIC in 2003 modified CJ 10.38 in light of People v. Massicot (2002) 97 CA4th 920. (See FORECITE’s “COMPENDIUM OF CALJIC REVISIONS IN THE 2003 7TH EDITION” (CJHIST7).) However, the revised CJ instruction is still deficient. Masicot’s conviction for PC 314(1) was not supported by substantial evidence because Masicot did not display his “naked genitals.” Therefore, CJ 10.38 should be revised as set forth above. (But see People v. Carbajal (2003) 114 CA4th 978 [visual observation of the exposed genitals is not an element of PC 314(1) but there must be circumstantial evidence that actual exposure occurred in the presence of other persons].)