People v. Bailey CA1/2

Filed 4/21/14 P. v. Bailey CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A140282 v. LESLIE M. BAILEY, (San Francisco City and County Super. Ct. No. 220268) Defendant and Appellant.

A Bay Area Rapid Transit (BART) train operator observed Leslie M. Bailey masturbating in the train she was operating. Shortly thereafter, Bailey approached the operator at the window as she was observing the train platform, with his erect penis exposed. Bailey was charged with two counts of felony indecent exposure with a prior conviction (Pen. Code, § 314, subd. (1)) 1 and one count of engaging in lewd conduct, a misdemeanor (§ 647, subd. (a)). A jury found Bailey guilty of engaging in lewd conduct and not guilty on the first count of indecent exposure. The jury was unable to reach a verdict on the second count of indecent exposure and the court later dismissed that count on the People’s motion. The court sentenced Bailey to unsupervised probation, conditioned on a county jail term that was satisfied by credit for time served. Bailey’s appointed counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) (see Anders v. California (1967) 386 U.S. 738), in which he raises no issue for appeal and asks this court for an independent review of the record. (See also

1 Unless otherwise specified, all statutory citations are to the Penal Code.

1

People v. Kelly (2006) 40 Cal.4th 106, 124.) Counsel attests that Bailey was advised of his right to file a supplemental brief. Bailey has not exercised that right. We have examined the entire record in accordance with Wende. We agree with counsel that no arguable issue exists on appeal and affirm. BACKGROUND I. Procedural Background In an amended information, filed on October 8, 2013, the People charged Bailey with three counts: (1 and 2) felony indecent exposure with a prior conviction (§ 314, subd. (1)) and (3) engaging in lewd conduct, a misdemeanor (§ 647, subd. (a)). Attendant to counts 1 and 2, both of which named Lori Hudson as the victim of Bailey’s indecent exposure, 2 the information alleged prior convictions for: (1) misdemeanor indecent exposure (§ 314, subd. (1)) on August 11, 2006, and (2) felony indecent exposure (§ 314, subd. (1)) on June 5, 2007. Attendant to count 3, the information alleged the 2007 conviction for felony indecent exposure as a prior felony with a state prison sentence, pursuant to section 667.5, subdivision (b). A jury found Bailey not guilty on count 1and guilty on count 3, but could not reach a verdict on count 2. On October 21, 2013, the court suspended imposition of sentence, granted unsupervised probation for three years, conditioned on serving a term of 166 days in county jail, and imposed standard fees and fines. Bailey received 166 days of credit for time served. The court dismissed count 2 on the People’s motion. Bailey timely filed a notice of appeal on November 12, 2013. II. Factual Background Lori Hudson, a BART train operator, stopped her train at the station at Mission and 16th Streets in San Francisco, California, about 1:24 p.m. on May 8, 2013. Bailey entered the train, proceeded to a seat directly behind Hudson’s cab area, dropped to his