People v. Curry

Opinion

KINGSLEY, J.

Defendant was charged with indecent exposure, in violation of subdivision 1 of section 314 of the Penal Code. After a trial by jury, he was found guilty; proceedings were suspended and he was granted probation. He has appealed; we reverse.

The case for the People was that, at about 6:30 a.m., he was observed by a plainclothes police officer masturbating in a public alley. His defense was that he suffered from prostate and urinary problems that caused him to have sudden and uncontrollable necessity to urinate, and that he had gone into the alley for that purpose and that he had rubbed the tip of his penis to alleviate pain connected with the urination. His claim as to the physical problems was corroborated by the uncontested testimony of his doctor. The doctor’s testimony as to rubbing the penis to alleviate pain was equivocal.

I

Defendant contends that the evidence does not support the verdict. We reject that contention. Although the testimony of the police officer as to what she saw was open to attack as being based on too brief an observance, the jury was entitled to accept her version and'reject that of defendant.

[185]

II

In support of its case, the People offered the testimony of two women who claimed to have seen defendant masturbating in an alley in the same vicinity on a previous date. Defendant makes two attacks on that testimony: (1) That it did not show adequate similarity between the uncharged offense and the one herein involved; and (2) that the testimony of one witness, although stricken because she could not positively identify defendant as the man involved in the earlier episode, nevertheless was so prejudicial as to require a mistrial. We reject both contentions.

(1) The evidence to the uncharged offense was offered to prove intent and to rebut defendant’s claim of a nonlewd act. In such cases, the requirement of similarity is not the same as in cases where an uncharged crime is offered to prove identity. Here the unstricken testimony of witness Perrier identified defendant as a man seen by her masturbating, at the same morning hour, in the same vicinity, in a public alley. The hour was one at which nurses employed in a nearby hospital would be expected to be present. We think that there was enough similarity in time, place and potential motive, to make Perrier’s testimony admissible on the issue of lewd intent.