People v. Merkley (1996) · DecisionDepot

People v. Merkley

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Oct 31, 1996 No. A072142Published

Before: Hanlon

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Holding. The court held that a prior conviction for indecent exposure is a sentencing factor for the court rather than an element of the offense to be proven to a jury, and that admitting evidence of the defendant's prior lewd conduct conviction was prejudicial error.

Issues

Whether a prior conviction under Penal Code section 314 is an element of the offense that must be proven to a jury or a sentencing factor for the court.
Whether the erroneous admission of the defendant's prior conviction for lewd and lascivious acts was prejudicial.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“The prior conviction allegation in a section 314 charge is a sentencing factor to be determined by the court and not an element of the indecent exposure offense.”

“On these facts, we conclude that in the absence of evidence of appellant’s prior conviction, it is reasonably probable that appellant might have obtained a favorable verdict.”

Synopsis

[Opinion certified for partial publication.*]

Opinion

HANLON, J.

Donal M. Merkley (appellant) appeals from a judgment of conviction upon a jury verdict finding him guilty of indecent exposure (Pen. Code,

§314) and possession of cocaine (Health & Saf. Code, § 11350). Prior to trial, appellant admitted that he suffered a prior “strike” conviction for lewd or lascivious acts with a child under the age of 14 (§§ 288, 667). He also admitted that he failed to register as a sex offender after that conviction (§ 290, subd. (g)(1)). Appellant contends that the trial court erred in admitting evidence of his prior conviction and that it erroneously instructed the

[475]

jury pursuant to CALJIC No. 2.03. These contentions are meritorious and require reversal of the indecent exposure conviction.

Facts

The evidence presented to the jury showed that on December 3, 1994, at approximately 4:50 a.m., Angela Stoltman was driving her truck to work in Petaluma. As she approached the intersection of East Washington and Ellis Streets, she observed appellant and made eye contact with him. Appellant, who was wearing a jogging suit, then pulled his shirt up and his pants down, exposing his flaccid penis. Stoltman continued to drive to work. When she arrived at work, she called the police to report the incident because she was offended by it.

Sergeant Vail Bello was on patrol in the area and was contacted by dispatch to investigate. Bello made contact with appellant as he was walking on East Washington Street. Appellant did not show any signs of being intoxicated. After talking to appellant, Bello permitted him to leave.

Several days later, Officer Dennis Nowicki showed Stoltman a photographic lineup. She identified appellant as the person who exposed himself to her. Appellant was subsequently arrested and consented to a search of his apartment. In that search, the police found .27 grams of cocaine in appellant’s bedroom closet.

Following the presentation of the People’s evidence, the parties stipulated that appellant was convicted of committing lewd and lascivious acts with a child under the age of 14 on August 11, 1992, in violation of section 288.

People v. Merkley

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Synopsis

HANLON, J.

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