People v. Tolliver

Opinion

CARR, J.

Defendant appeals his conviction by a jury for felony indecent exposure. (Pen. Code, § 314, subd. 1.) A prior conviction of indecent exposure was charged and proved. He argues that the trial court’s failure to instruct,

sua sponte,

on lewd and disorderly conduct (Pen. Code, § 647, subd. (a)) as a lesser included offense constitutes reversible error.

On March 18, 1979, at 5:15 p.m., defendant called an Avon sales representative, Ms. H. and requested she come to his house. Ms. H. told defendant that she would not visit his house unless there was a woman present. He then told her that his wife was there, they were just moving in, they had four children and asked Ms. H. if she would like to speak

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to his wife. Ms. H. went to the house and was met at the front door by defendant who was dressed in a hip-length, brown velour robe and was dripping wet. She was invited inside and sat down while defendant walked down the hall to the bathroom. When he returned, the robe he was wearing was open from the waist down, exposing his genitals to Ms. H. Defendant sat down across from her, spread his legs apart and stared at her in a “scary” manner.

He then told Ms. H. that his wife was away and would be right back and that he wanted to place an order for her birthday. Ms. H. got up, told defendant she would not take his order unless he was decent and stepped out the front door. He then responded that he knew what he wanted, referred to page 15 or 16 of the Avon book and said, “I want this or this.” Ms. H. turned to look at what he was referring and saw defendant masturbating. Ms. H. then fled hysterically.

The sole contention on appeal is that the trial court erred by failing to instruct,

sua sponte,

on the offense of lewd and disorderly conduct (Pen. Code, § 647, subd. (a)) as a necessarily included lesser offense to indecent exposure. (Pen. Code, § 314, subd. 1.) The trial court has a

sua sponte