Filed 3/28/18 P. v. Bentancourt CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD BENTANCOURT,

Defendant and Appellant.

F074994

(Super. Ct. No. MF012164A)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Byron C. Lichstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Kevin M. Cornwall, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-

 
A jury convicted appellant Richard Bentancourt of indecent exposure (Pen. Code, § 314, subd. (1)). In a separate proceeding, the court found true a prior prison term enhancement (§ 667.5, subd. (b)) and allegations that Bentancourt had a prior conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b) (i)). On January 5, 2017, the trial court stayed the prior prison term enhancement and sentenced Bentancourt to a lower term of 32 months.
On appeal, Bentancourt contends: (1) the trial court erred when it admitted evidence that his conduct violated prison rules; and (2) he was denied the effective assistance of counsel. We affirm.
FACTS
The prosecution evidence established that in late February 2016, while an inmate at California City Correctional Facility (CAC), Bentancourt was moved to building A-1, section C (C pod) (the administrative segregation unit), cell 112. The door into C pod was made of metal and made a lot of noise when opened by an electronic bolt. As part of the daily routine at CAC, a correctional officer performed a security welfare check of each cell every 30 minutes, 24 hours a day. During the check, the officer would go to each cell, look inside, and verify that the inmate in the cell was alive and breathing. At nighttime, the checks were performed by the same officer. The officer carried a baton, pepper spray, large metal keys approximately five inches in length, a flashlight, a gas mask, and a radio. As the officer checked the cells, these items made noise as they banged against each other and the radio sometimes broadcasted radio traffic. Additionally, the checking officer had a “Guard One” device that he or she tapped against the door of each cell so it would send a signal to a computer and the contact with the door made a metal-on-metal sound.
On April 21, 2016, when Correctional Officer Dolores Garcia de Barajas came on duty at 10:00 p.m., she performed a sequential welfare security check of the cells on Betancourt’s tier in C pod starting with cell 101. She again checked the cells at 10:35 p.m., 11:05 p.m., and 11:35 p.m. At each cell, Garcia de Barajas would tap the cell door with the Guard One as she placed it through the door’s window. She then turned on her flashlight and shone it into the cell in order to check on the welfare of the inmate housed there. Bentancourt would usually be asleep when Garcia de Barajas did her checks. However, when she checked Bentancourt during her 11:35 p.m. round of checks, Garcia de Barajas saw Bentancourt laying down on his bunk. Although she suspected he was masturbating under the sheets, she was not sure and moved on to the next cell.
During the 12:05 p.m. round of checks, Garcia de Barajas entered C pod and after touching the Guard One device to Bentancourt’s metal door, she turned on her flashlight to look inside. Bentancourt was laying on the bunk uncovered, with his head to the right of Garcia de Barajas and his left leg and left arm hanging over the edge of the bunk. Bentancourt looked directly into Garcia de Barajas’s eyes as he masturbated with his penis sticking out of the fly of his boxers. Garcia de Barajas told Bentancourt to stop or she was going to issue him a disciplinary notice and she walked away to complete her remaining checks. However, she was disgusted with the incident and after speaking with her direct supervisor, he approved her request to be removed from doing security welfare checks the rest of the night.
Correctional Officer Alma Beltran testified regarding a prior incident at another prison during which she observed Bentancourt masturbating. According to Beltran, on October 13, 2015, she was working at Avenal State Prison in housing unit 640, where Bentancourt was incarcerated at the time. At approximately 11:00 a.m., she saw Bentancourt sitting on a stool in front of a phone that had been shutoff, holding the phone in his right hand as if he were speaking to someone. As Bentancourt looked at Beltran, he moved his left hand in his groin area in an upward motion causing Beltran to believe that he was masturbating. After confirming that the phone was shutoff, Beltran instructed Bentancourt to get to his bunk and he complied. However, he grabbed a blanket, put his hands in his groin area and continued masturbating under the blanket.
Correctional Officer Tina Molina testified that all California prison inmates are given a book and an orientation that explain to them the prison rules that are contained in the administrative regulations that govern prison inmate conduct. Masturbation is defined in those rules as sexually offensive conduct. The rules also prohibit inmates from engaging in indecent exposure and lesser offenses involving sexually offensive conduct.
The parties stipulated that Bentancourt was convicted of indecent exposure in 2004. The defense, however, did not present any other evidence.
DISCUSSION
Bentancourt contends the evidence that he was informed of prison rules that defined masturbation as “ ‘sexually offensive conduct,’ and that such conduct [was] prohibited” was irrelevant to any issues in the case. Thus, according to Bentancourt, the court erred when it overruled defense counsel’s relevance objection to the introduction of the evidence that his conduct violated prison rules. He further contends the evidence was prejudicial because it could have aroused the jury’s instinct to punish him for violating prison rules, especially since no evidence was presented that he was independently punished by the prison. Bentancourt further posits that the prejudice was amplified by the potentially confusing relationship between the standard for violating prison rules, which is simple and broad, and the standard for violating a criminal law, which is narrower and more complex. We disagree.
To establish indecent exposure, “ ‘(1) the defendant must willfully and lewdly expose the private parts of his person; and (2) such exposure must be committed in a public place or in a place where there are present other persons to be offended or annoyed thereby.’ ” (People v. Carbajal (2003) 114 Cal.App.4th 978, 982; see § 314, subd. 1.) Nudity alone does not suffice to show the offense; rather, the defendant must have a lewd, sexually motivated intent. (In re Smith (1972) 7 Cal.3d 362, 365-366.) Thus, the defendant must intend not only to engage in the exposure, but must also intend “to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” (Id. at p. 366.) The requisite lewd intent exists if the defendant acted for the purpose of his or her own sexual arousal, or to sexually arouse or sexually affront others. (See People v. Archer (2002) 98 Cal.App.4th 402, 405-406 & fn. 2.)
Evidence Code section 210 provides: “ ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.”
Bentancourt must have known from having been housed at the CAC since February 2016 that security welfare checks occurred every 30 minutes and that, after the check Garcia de Barajas performed at 11:35 p.m., she would return for another check at approximately 12:05 a.m. Moreover, he would have known when she was approaching his cell from hearing the noise made by the door to C pod as it was opened to let her in, the noise her equipment made as she walked, the radio transmissions from her radio, and the noise the Guard One device made when she tapped it against the metal doors of the cells she checked prior to checking his cell. Since Betancourt knew when she would be at his cell, he easily could have avoided Garcia de Barajas viewing him as he masturbated by not masturbating while she was checking his cell or by masturbating under his sheets and turning away from the officer while he did. His actions in masturbating in plain view while she looked into his cell to check on his welfare support an inference that his intent was “to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront.” Further, Bentancourt was aware, from having received the prison handbook, that he could be administratively disciplined for masturbating and from his previous conviction for indecent exposure that he could be subject to criminal sanctions. His willingness to risk administrative and criminal sanctions when he could have easily avoided them by masturbating without Garcia de Barajas viewing him, further strengthens this inference. Accordingly, we conclude the evidence that Betancourt violated prison rules regarding masturbation was relevant and that the court did not err when it overruled defense counsel’s relevance objection to this evidence.
Moreover, “the erroneous introduction of evidence is typically evaluated under the Watson[ ] standard. [Citation.] Under that standard, reversal is required only if it is reasonably probable the defendant would have obtained a more favorable result had the evidence been excluded.” (People v. Carrillo (2004) 119 Cal.App.4th 94, 103.)
Bentancourt’s contention that the jury may have convicted him to punish him for an administrative rule violation and that evidence of the rule violation may have confused the jury are pure speculation because he does not cite any evidence in support of these contentions. Further, the evidence that Betancourt was guilty of indecent exposure was strong and unrebutted while the evidence that his conduct violated prison rules was only a small part of this evidence, and it was similar and somewhat cumulative of the evidence that Betancourt had a prior conviction for indecent exposure. Thus, we conclude it is not reasonably probable Betancourt would have received a more favorable result even if the court had excluded the evidence that Betancourt’s conduct violated prison rules.
The Failure to Object on Evidence Code Section 352 Grounds
Evidence Code section 352 provides:
“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defense counsel did not object on Evidence Code section 352 grounds to the introduction of evidence that Bentancourt was aware that masturbating violated prison rules. By failing to object, counsel forfeited a claim that the court abused its discretion pursuant to Evidence Code section 352 in admitting this evidence. (People v. Sisneros (2009) 174 Cal.App.4th 142, 154.) Bentancourt contends he was denied the effective assistance of counsel by defense counsel’s failure to preserve this issue on appeal by making an appropriate objection. We disagree.
“To prevail on [a claim of ineffectiveness of counsel], [a defendant] must establish his counsel’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different.” (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) “ ‘ “The burden of sustaining a charge of inadequate or ineffective representation is upon the defendant. The proof … must be a demonstrable reality and not a speculative matter.” ’ ” (Ibid.) Further, “[a] court need not first determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, that course should be followed. (Strickland v. Washington (1984) 466 U.S. 668, 697.)
Since we have already determined that Betancourt was not prejudiced by the introduction of the evidence that his conduct violated prison rules, we also reject his ineffective assistance of counsel claim.
DISPOSITION
The judgment is affirmed.