gno.law

People v. Rogers CA4/1

California Court of Appeal · D062632 · 2014-03-07 · Unpublished

Proceeding
appeal from a judgment
Trial court
Superior Court of San Diego County · No. SCD240490
Trial judge
Peter C. Deddeh
Outcome
affirmed — Affirmed.
Area
criminal
Panel
O'Rourke (author), Cynthia Aaron, Patricia D. Benke

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:44Z · confidence high

The trial court convicted Keith Rogers of indecent exposure, found true a prior prison term enhancement, and imposed a four-year sentence including a sex offender registration fine. The Court of Appeal affirmed the judgment, rejecting Rogers's claims of insufficient evidence, failure to instruct on a lesser included offense, and improper imposition of the fine.

Ruling reviewedStandardThe courtThe model
Sufficiency of evidence for indecent exposure conviction
“We conclude the evidence was sufficient for the jury to find Rogers had the requisite specific intent.”
de novocorrectagree with court
The court applied the correct standard of review for sufficiency of evidence, viewing the record in the light most favorable to the prevailing party. The evidence, including Rogers's positioning in the stall and the officers' testimony, supported a finding of specific intent to direct public attention to his genitals.
Failure to instruct on disorderly conduct as a lesser included offense
“Because the offense of disorderly conduct is not a lesser included offense of indecent exposure, the trial court did not err in failing to instruct on that crime.”
de novocorrectagree with court
The court correctly applied the elements test to determine that disorderly conduct is not a lesser included offense of indecent exposure because the former requires touching of the genitals, which is not an element of the latter. This analysis is consistent with prior California appellate authority.
Imposition of sex offender registration fine
“Therefore, any error is forfeited.”
de novocorrectagree with court
The court correctly held that the defendant forfeited the claim by failing to object to the fine or request a hearing on his ability to pay in the trial court. The presumption that the trial court made the requisite findings further supported the judgment.

Authorities

  • relied: In re Smith (1972) 7 Cal.3d 362 — The requirement that the actor's intent be 'lewd' is an essential element of the offense of indecent exposure.
  • relied: People v. Archer (2002) 98 Cal.App.4th 402 — Conviction for indecent exposure requires proof that the actor intended to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.
  • relied: People v. Swearington (1977) 71 Cal.App.3d 935 — A defendant's intent must generally be established by circumstantial evidence.
  • relied: People v. Ochoa (1993) 6 Cal.4th 1199 — The appellate court's role in reviewing sufficiency of evidence is limited to determining if a rational trier of fact could find guilt beyond a reasonable doubt.
  • relied: People v. Wader (1993) 5 Cal.4th 610 — In assessing sufficiency of evidence, the record is reviewed in the light most favorable to the prevailing party.
  • relied: People v. Meza (1995) 38 Cal.App.4th 1741 — The same standard of review applies to convictions based largely on circumstantial evidence.
  • relied: People v. Perez (1992) 2 Cal.4th 1117 — A court must instruct sua sponte on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense were present.
  • relied: People v. Birks (1998) 19 Cal.4th 108 — The duty to instruct on a lesser included offense arises when there is substantial evidence the defendant is guilty only of the lesser offense.
  • relied: People v. Lopez (1998) 19 Cal.4th 282 — The elements test and the accusatory pleading test are used to determine if a lesser offense is necessarily included in the charged offense.
  • relied: People v. Reed (2000) 78 Cal.App.4th 274 — In determining if a lesser offense is included, one looks to the elements of the offenses, not the evidence.
  • relied: Pryor v. Municipal Court (1979) 25 Cal.3d 238 — The terms 'lewd' and 'dissolute' in section 647, subdivision (a) are synonymous and refer to conduct involving the touching of the genitals for sexual purposes.
  • relied: People v. Meeker (1989) 208 Cal.App.3d 358 — Section 647, subdivision (a) is not a lesser and necessarily included offense of felony indecent exposure because the latter does not require touching of the genitals.
  • relied: People v. Tolliver (1980) 108 Cal.App.3d 171 — Section 647, subdivision (a) is not a lesser and necessarily included offense of felony indecent exposure.
  • relied: People v. Rehmeyer (1993) 19 Cal.App.4th 1758 — No touching is required to violate section 314 (indecent exposure).
  • relied: People v. Burnett (2004) 116 Cal.App.4th 257 — It is presumed that the trial court made the requisite findings to support its judgment.
  • relied: People v. McMahan (1992) 3 Cal.App.4th 740 — When a statute mandates a fine but requires consideration of ability to pay, the burden is on the defendant to object or demand a hearing.

The appellate opinion: sound — The opinion is sound because it correctly applies the standard of review for sufficiency of evidence and accurately analyzes the elements of the offenses to determine that disorderly conduct is not a lesser included offense of indecent exposure. It also correctly applies the forfeiture rule regarding the sex offender registration fine.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

A San Diego jury convicted Keith Lamar Rogers of indecent exposure (Pen. Code, § 314, subd. 1) with a prior prison term for the same offense, and the trial court sentenced him to four years and imposed a $500 sex offender registration fine under section 290.3. The Court of Appeal affirmed, holding the evidence of lewd intent was sufficient, that disorderly conduct (§ 647, subd. (a)) is not a lesser included offense of indecent exposure so no sua sponte instruction was required, and that Rogers forfeited his ability-to-pay challenge to the fine by not objecting below.

Ruling reviewedStandardThe courtThe model
Denial of sufficiency-of-the-evidence challenge: the jury's finding that Rogers acted with the specific lewd intent to direct public attention to his genitals was supported by substantial evidence.
“We conclude the evidence was sufficient for the jury to find Rogers had the requisite specific intent.”
substantial evidencecorrectagree with court
The court correctly stated the Smith/Archer intent element and the deferential Ochoa/Wader standard. Evidence that Rogers insisted on the female agent testing him immediately, positioned himself toward the open stall door, was masturbating with an erect penis when seen by both Agent Alonso and Officer Brooks, and had a prior conviction for the same offense supports an inference of intent to be seen. The opinion's comment that Rogers as a 'probationer' had no reasonable expectation of privacy is loose (he was on parole, and privacy is not the statutory element), but the result rests on the intent evidence and the presence of persons who could be offended, which the statute requires.
Failure to instruct sua sponte on disorderly conduct (§ 647, subd. (a)) as a lesser included offense of indecent exposure was not error because disorderly conduct is not a lesser included offense under either the elements or accusatory pleading test.
“Because the offense of disorderly conduct is not a lesser included offense of indecent exposure, the trial court did not err in failing to instruct on that crime.”
de novocorrectagree with court
Whether an offense is necessarily included is a question of law resolved by comparing elements (Lopez, Reed). After Pryor construed § 647(a) to require touching of the genitals, buttocks or female breast, Meeker and Tolliver correctly held that indecent exposure, which requires no touching (Rehmeyer), can be committed without committing lewd conduct. Swearington predates Pryor and was properly treated as superseded. The accusatory pleading tracked the statute and alleged no touching, so the pleading test also fails.
Imposition of the $500 sex offender registration fine under § 290.3 was upheld; the claim that the court was unaware of its discretion was unsupported, and the ability-to-pay challenge was forfeited by failure to object at sentencing.
“Here, Rogers did not object in the trial court to the court's imposition of the sex registration fine. Therefore, any error is forfeited.”
unclearcorrectagree with court
McMahan squarely holds that a defendant who does not object or request an ability-to-pay hearing on a § 290.3 fine forfeits the issue, and the Supreme Court's decision in People v. McCullough (2013) 56 Cal.4th 589, which the opinion does not cite, reached the same conclusion for ability-to-pay findings on a booking fee. The presumption that the trial court made the findings necessary to support its judgment (Burnett) answers the unsupported claim that the court was unaware of its discretion. Self-representation does not excuse the forfeiture.

Authorities

  • relied: In re Smith (1972) 7 Cal.3d 362 — Lewd intent is an essential element of indecent exposure under § 314.
  • relied: People v. Archer (2002) 98 Cal.App.4th 402 — Indecent exposure requires proof the actor intended to direct public attention to his genitals for sexual arousal, gratification, or affront.
  • relied: People v. Swearington (1977) 71 Cal.App.3d 935 — Intent is generally proved by circumstantial evidence; its pre-Pryor holding that § 647(a) is a lesser included offense of § 314 was treated as superseded.
  • relied: People v. Ochoa (1993) 6 Cal.4th 1199 — Appellate review of sufficiency of evidence is limited; the court does not reweigh evidence or credibility.
  • relied: People v. Wader (1993) 5 Cal.4th 610 — Sufficiency review asks whether the record, viewed favorably to the judgment, contains reasonable, credible evidence of solid value supporting guilt beyond a reasonable doubt.
  • relied: People v. Perez (1992) 2 Cal.4th 1117 — Trial courts must instruct sua sponte on general principles closely connected to the facts, including lesser included offenses raised by the evidence.
  • relied: People v. Birks (1998) 19 Cal.4th 108 — Duty to instruct on a lesser included offense arises when substantial evidence shows the defendant is guilty only of the lesser.
  • relied: People v. Lopez (1998) 19 Cal.4th 282 — Lesser included offenses are determined under the statutory elements test or the accusatory pleading test.
  • relied: Pryor v. Municipal Court (1979) 25 Cal.3d 238 — 'Lewd' and 'dissolute' in § 647(a) are synonymous and refer to touching of genitals, buttocks, or female breast for sexual arousal, gratification, annoyance, or offense with knowledge of persons who may be offended.
  • relied: People v. Meeker (1989) 208 Cal.App.3d 358 — Section 647(a) is not a lesser included offense of § 314 because indecent exposure does not require touching.
  • relied: People v. Tolliver (1980) 108 Cal.App.3d 171 — After Pryor, lewd conduct under § 647(a) is not necessarily included in felony indecent exposure.
  • relied: People v. Rehmeyer (1993) 19 Cal.App.4th 1758 — No touching is required to violate § 314.
  • relied: People v. Burnett (2004) 116 Cal.App.4th 257 — A reviewing court presumes the trial court made the findings necessary to support its judgment.
  • relied: People v. McMahan (1992) 3 Cal.App.4th 740 — A defendant who fails to object or request an ability-to-pay hearing on a § 290.3 fine forfeits the claim on appeal.
  • missed: People v. McCullough (2013) 56 Cal.4th 589 — A defendant forfeits an appellate challenge to the sufficiency of evidence of ability to pay a fee by failing to object at sentencing; binding Supreme Court authority that supports but was not cited for the forfeiture holding.

The appellate opinion: sound with gaps — The opinion applies the correct standards and controlling authorities to each of the three claims, and the lesser-included-offense analysis correctly accounts for Pryor's narrowing of § 647(a). It is slightly imprecise in describing Rogers as a probationer and in invoking privacy expectations rather than the statutory elements, and it omits the Supreme Court's McCullough decision on forfeiture, but these gaps do not affect the result.

How this analysis was made · dispute it

Opinion

Filed 3/7/14 P. v. Rogers CA4/1 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062632

Plaintiff and Respondent, v. (Super. Ct. No. SCD 240490)

KEITH LAMAR ROGERS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Peter C.

Deddeh, Judge. Affirmed.

Koryn & Koryn, Daniel G. Koryn, under appointment by the Court of Appeal, for the Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Lise S. Jacobson, Deputy Attorneys General for the Plaintiff and Respondent. A jury convicted Keith Lamar Rogers of indecent exposure. (Pen. Code,1 § 314, subd. (1).) It also found true that he had a prior prison conviction for the same offense.

(§ 667.5, subd. (b).) The court sentenced him to four years in state prison and imposed different fines and fees, including a sex offender registration fine under section 290.3.

Rogers contends: (1) there was insufficient evidence to support his conviction for indecent exposure; (2) the court erroneously failed to instruct the jury sua sponte regarding disorderly conduct, which he claims is a lesser included offense of indecent exposure; and (3) the court erroneously imposed the sex offender registration fine. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On Thursday, April 19, 2012, Rogers went to a parole office in San Diego and told Parole Agent Myrna Alonso that he needed a parole identification card in order to register as a sex offender. Agent Alonso telephoned a San Diego Police Department registration officer notifying her she would issue Rogers an identification card. Agent Alonso suggested Rogers return the next Monday in order for his male parole officer to administer a urine test. Rogers insisted that Agent Alonso administer the test immediately; therefore, Agent Alonso relented. The testing area had four bathroom stalls, two on each side of a corridor. Rogers entered one of the stalls. Agent Alonso briefly went to a separate area. Upon returning to the bathroom area, she saw Rogers inside an open stall. He was facing away from the toilet bowl and towards the stall's side 1 All statutory references are to the Penal Code. 2 wall located closest to the direction from which Agent Alonso returned. She saw Rogers masturbating; his penis was erect. Rogers did not make eye contact with Agent Alonso.

She testified the floor in the bathroom area was not carpeted and one could hear footsteps on it. Agent Alonso turned around and went to get a male parole agent to verify what she had seen. Agent Alonso testified she was offended, "shocked," and it "caught [her] off guard" because that was "not something [she] expected in a parole office." She had tested male parolees "thousands of times" but not once had she experienced a similar situation.

Parole Officer Sylvester Brooks testified Agent Alonso was "pretty agitated and upset" and told him a parolee was exposing himself. Officer Brooks immediately went to the bathroom area and saw Rogers "angling his body towards" the stall door and "jiggling" his erect penis. Rogers seemed surprised to see Officer Brooks, who ordered him to pull up his pants. Officer Brooks was offended by Rogers's act of exposing himself because although no one was around the bathroom area that day, ordinarily many female agents and clerical staff walk around that area. Moreover, the area is used by other individuals taking drug tests.2 2 Rogers does not challenge the finding regarding his prior conviction; therefore we do not set forth the testimony supporting that finding.

3 DISCUSSION

I.

Rogers contends there was insufficient evidence to support his conviction for indecent exposure because he lacked the specific intent to direct public attention to his genitals. He argues the incident did not occur in a public place, but in a private bathroom stall where he had a reasonable expectation of privacy.

Under section 314, subdivision 1, it is a crime for someone to willfully and lewdly "[e]xpose[] his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby." "The separate requirement that the intent of the actor be 'lewd' is an essential element of the offense."

(In re Smith (1972) 7 Cal.3d 362, 365.) Conviction for this offense " 'requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification or affront.' " (People v. Archer (2002) 98 Cal.App.4th 402, 404-405.)

"Generally, a defendant's intent must, of necessity, be established by circumstantial evidence." (People v. Swearington (1977) 71 Cal.App.3d 935, 949 (Swearington).)3 3 The jury was instructed with CALCRIM No. 1160 as follows: "The defendant is charged in Count One with indecent exposure in violation of Penal Code section 314. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant willfully exposed his genitals in the presence of another person or persons who might be offended or annoyed by the defendant's actions; [¶] AND [¶] 2. When the defendant exposed himself, he acted lewdly by intending to direct public attention to his genitals for the purpose of sexually arousing or gratifying himself or another person, or sexually offending another person. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the 4 This court's role in reviewing evidence to determine whether it is sufficient to sustain a conviction is "a limited one." (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

"In assessing a sufficiency-of-evidence argument on appeal, we review the entire record in the light most favorable to the prevailing party to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Wader (1993) 5 Cal.4th 610, 640.) We apply the same standard to convictions based largely on circumstantial evidence. (People v. Meza (1995) 38 Cal.App.4th 1741, 1745.) It is not within our province to reweigh the evidence or redetermine issues of credibility. (Ochoa, at p. 1206.)

We conclude the evidence was sufficient for the jury to find Rogers had the requisite specific intent. Rogers insisted on having the female parole agent administer the test right away. Having had a prior conviction for indecent exposure, and being on probation for that offense, Rogers was on notice of the kinds of conduct that could constitute the offense. During his urine test, he positioned himself in the bathroom stall in order to be seen by Agent Alonso. Agent Alonso saw Rogers masturbating; his penis was erect. She was shocked and offended. Several minutes later, Officer Brooks found Rogers facing the door of the bathroom stall and "jiggling" his erect penis. As a probationer, Rogers had no reasonable expectation of privacy. Officer Brooks described law, hurt someone else, or gain any advantage. [¶] It is not required that another person actually see the exposed genitals." 5 the bathroom area where Rogers was taking the urine test as a public area transited by employees and probationers alike.

II.

Rogers maintains the trial court committed reversible error in failing to instruct the jury on its own motion that the misdemeanor crime of disorderly conduct (§ 647, subd.

(a))4 is a lesser included offense of indecent exposure. This argument lacks merit.

"It is settled that a court must instruct on general principles of law that are closely and openly connected with the facts of the case. [Citation.] The duty to instruct sua sponte on general principles encompasses the duty to instruct on defenses that are raised by the evidence, and on lesser included offenses when the evidence has raised a question as to whether all of the elements of the charged offense were present." (People v. Perez (1992) 2 Cal.4th 1117, 1129.) The duty to instruct on a lesser included offense arises when there is substantial evidence the defendant is guilty only of the lesser offense.

(People v. Birks (1998) 19 Cal.4th 108, 118.)

We first consider whether, under the facts of this case, disorderly conduct is a necessarily included offense of the charged crime of indecent exposure. "To determine whether a lesser offense is necessarily included in the charged offense, one of two tests (called the 'elements' test and the 'accusatory pleading' test) must be met. The elements test is satisfied when ' "all the legal ingredients of the corpus delicti of the lesser offense 4 Under section 647, subdivision (a), it is a crime to "engage[] in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view."

6 [are] included in the elements of the greater offense." [Citation.]' [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included within the greater charged offense ' "if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed." ' " (People v. Lopez (1998) 19 Cal.4th 282, 288-289.) "In making this determination, one looks to the elements of the offenses—not the evidence regarding the commission of the offenses." (People v. Reed (2000) 78 Cal.App.4th 274, 281.)

Rogers relies on Swearington, supra, 71 Cal.App.3d 935, which held that if the defendant possessed the necessary specific intent to constitute felony indecent exposure, the defendant also necessarily committed the misdemeanor offense of lewd conduct. (Id.

at pp. 943-945.) The California Supreme Court subsequently clarified in Pryor v. Municipal Court (1979) 25 Cal.3d 238, 248 (Pryor) that the terms "lewd" and "dissolute"

used in section 647, subdivision (a) are synonymous. The court held the terms refer to conduct that involves the touching of the genitals, buttocks, or female breast for the purposes of sexual arousal, gratification, annoyance, or offense if the actor knows or should know of the presence of persons who may be offended by this conduct. (Pryor, at p. 256.)

Since Pryor, supra, 25 Cal.3d 238, appellate courts have held that section 647, subdivision (a) is not a lesser and necessarily included offense of felony indecent 7 exposure. (See People v. Meeker (1989) 208 Cal.App.3d 358, 362; People v. Tolliver (1980) 108 Cal.App.3d 171, 173-174.) The court in People v. Meeker explained it is possible to violate section 314, subdivision 1 (indecent exposure), without violating section 647, subdivision (a) (disorderly conduct), since the latter involves the "touching of the genitals" but the former does not. (People v. Meeker, at p. 362; see People v. Rehmeyer (1993) 19 Cal.App.4th 1758, 1766 [no touching required to violate § 314].)

We agree with this analysis.

As one can commit the crime of indecent exposure under section 314 without touching one's genitals as required for the offense of disorderly conduct, the section 647 offense cannot be considered a lesser included offense of indecent exposure under the statutory elements test. (People v. Meeker, supra, 208 Cal.App.3d at p. 362.) Rogers's claim fares no better under the accusatory pleading test as the pleading in this case simply mirrored the statutory language. Here, the pleading did not allege a touching; therefore, Rogers's claim likewise fails under this test. Because the offense of disorderly conduct is not a lesser included offense of indecent exposure, the trial court did not err in failing to instruct on that crime.

III.

Rogers contends the court erroneously imposed a $500 sex registration fine because it was unaware of its discretion to refuse to impose it and, in any event, the fine was unauthorized by law because the court failed to ascertain his ability to pay.

Section 290.3 states that every person convicted of indecent exposure, among other crimes, shall be punished by a fine, "unless the court determines that the defendant 8 does not have the ability to pay the fine." Rogers provides no basis for his claim that the trial court was unaware of its discretion. We presume the trial court made the requisite findings to support its judgment. (People v. Burnett (2004) 116 Cal.App.4th 257, 261- 262.)

When a statute mandates a fine but requires the court to consider the defendant's ability to pay, the burden is on the defendant to object or demand a hearing to determine the ability to pay. (People v. McMahan (1992) 3 Cal.App.4th 740, 749.) Here, Rogers did not object in the trial court to the court's imposition of the sex registration fine.

Therefore, any error is forfeited. (Id. at p. 750.)

We recognize Rogers represented himself at trial. But as the McMahan court noted, "[T]he most knowledgeable person regarding the defendant's ability to pay would be the defendant himself. It should be incumbent upon the defendant to affirmatively argue against application of the fine and demonstrate why it should not be imposed. [¶]

Here, the defendant was informed through the probation report that the probation officer was recommending the imposition of a fine pursuant to section 290.3. No objection to the fine was raised below, nor did defendant make any attempt to show he did not have the ability to pay the fine." (McMahan, supra, 3 Cal.App.4th at pp. 749-750.) We conclude Rogers's claim lacks merit.

9 DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

BENKE, Acting P. J.

AARON, J.

Cites, in this corpus