P. v. Tioran
Filed 3/20/07 P. v. Tioran CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, Plaintiff and Respondent, v. THOMAS DAVID TIORAN, Defendant and Appellant. | B189661 (Los Angeles County Super. Ct. No. VA092256) |
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael A. Cowell, Judge. Affirmed.
Janice L. Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Chung L. Mar, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Thomas David Tioran appeals from the judgment entered after a court trial in which he was convicted of indecent exposure. He contends his conviction is not supported by substantial evidence. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Tioran was charged by information with one count of indecent exposure with a prior conviction, a felony (Pen. Code, 314, subd. 1). It was specially alleged he was previously convicted of a violent or serious felony (robbery) within the meaning of the Three Strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Tioran pleaded not guilty and denied the special allegation. He waived his right to trial by jury and the court dismissed the allegation he had suffered a prior strike conviction.
Prosecution Evidence
At around 11:00 a.m. on November 5, 2005, Deputy Daniel Castaneda of the Los Angeles County Sheriffs Department responded to a report of someone exposing himself near Lakewood Boulevard and Flower Street in the City of Bellflower. Castaneda arrived at a bus stop just off the street and in front of a convenience store parking lot. Tioran was sitting on the bus stop bench, rapidly stroking his exposed penis with his hand. A boy under the age of ten years was standing nearby watching Tioran. Castaneda had the boy leave the area when he realized Tioran was masturbating. Castaneda asked Tioran several times what he was doing. Tioran did not respond; he continued to masturbate, with his head down and eyes closed. At some point, Tioran looked up at Castaneda, said, What? and put his penis inside his pants. Castaneda placed Tioran under arrest.
Defense Evidence
Tioran did not testify or present other evidence in his defense.
Verdict and Sentencing
The court found Tioran guilty beyond a reasonable doubt of the crime of indecent exposure.
At sentencing, the parties stipulated an October 21, 2005, misdemeanor indecent exposure conviction was Tiorans, which made his current indecent exposure conviction a felony offense, punishable by imprisonment in state prison.[1]The trial court imposed the middle term of two years in state prison for felony indecent exposure, suspended execution of sentence, and placed Tioran on three years formal probation, subject to numerous terms and conditions.
DISCUSSION
Substantial evidence supports Tiorans conviction.[2]Penal Code section 314, subdivision 1 punishes a person who willfully and lewdly exposes his or her person or private parts, in any public place or in any place where there are persons to be offended or annoyed. A person, who acts lewdly within the meaning of the statute, intends by his or her conduct to direct public attention to his or her genitals for purposes of sexual arousal, gratification, or affront. (In re Smith (1972) 7 Cal.3d 362, 366.)
Tioran contends while there is substantial evidence he exposed his penis with the intent sexually to gratify himself, the evidence does not suggest he intended to direct public attention to his genitals for purposes of sexual arousal.[3]Tioran points to the uncontroverted evidence his eyes were closed, his head was down, and he was nonresponsive to Deputy Castenadas repeated inquiries as establishing he was clearly unaware of anyone around him while masturbating. This argument is not well taken.
Tioran chose to expose himself while masturbating, rather than keep his genitals inside his pants or otherwise covered. (Compare: People v. Masicot (2002) 97 Cal.App.4th 920, 927-933 [defendant who displayed underpants he was wearing and not his naked genitals, did not expose his private parts to his victim].) Tioran also chose to masturbate at a time (11:00 a.m.) and place (a bus stop, near a parking lot) where he would likely be in view of members of the public (pedestrians, motorists, and bus riders). (Compare: In re Smith, supra, 7 Cal.3d at p. 366 [defendant who sunbathed in the nude on an isolated beach without intent to engage in sexual activity did not willfully and lewdly expose private parts of his body].) Additionally, a child in the area witnessed Tiorans conduct. If Tioran had not intended to direct public attention to his genitals, he most certainly could have selected a private location for his masturbatory sexual gratification. There was ample substantial evidence in the record from which the trial court could find Tioran intended to draw public attention to his exposed penis for the purpose of sexual arousal, gratification or affront.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WOODS, J.
We concur:
JOHNSON, Acting P. J. ZELON, J.
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[1] Tioran was also in court for violating probation in his prior misdemeanor indecent exposure case, for which he had received 10 days in county jail, credit for time served, and summary probation when he was convicted on October 21, 2005 (L.A.S.C. case No. 5LC05823). As a result of his current conviction, the court found Tioran in violation of his probation in case No. 5LC05823, and revoked and terminated probation in that case.
[2] In determining the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find [the defendant] guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We must uphold the judgment unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [it]. [Citation.] (Ibid.)
[3] Tioran acknowledges that his conduct was criminal, but contends it amounts to a violation of Penal Code section 647, subdivision (a), which prohibits lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view.
