P. v. Baum

Filed 8/9/06 P. v. Baum CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

A jury convicted defendant Alva Jacob Baum of indecent exposure. (Pen. Code, § 314, subd. (1).) Because of a prior conviction for indecent exposure, the trial court sentenced defendant to 16 months in prison. Defendant contends the trial court erroneously instructed the jury that motive is not an element of the offense. The Attorney General so concedes, and we agree. But on the facts of this case the error is harmless. Accordingly, we affirm.

I. FACTS

Under applicable standards of appellate review, we must view the facts in the light most favorable to the judgment, and presume in support of that judgment the existence of every fact which the jury could reasonably find from the evidence. (See People v. Barnes (1986) 42 Cal.3d 284, 303; People v. Neufer (1994) 30 Cal.App.4th 244, 247.)

At 3:45 p.m. on September 7, 2004, Janice Smith was filling a five-gallon bottle at a water dispenser machine just outside the entrance to an Albertson's supermarket at a Suisun City shopping mall. She saw defendant using a pay phone about five feet away. There was a little girl carrying water bottles to the machine. She was also about five feet from defendant. Smith saw that defendant's penis was out of his jeans through a cut in the crotch area, and â€