In Re Smith
- Reporters:
- , , ,
- Before:
- Mosk
Opinion
MOSK, J.
This is a petition for writ of habeas corpus by Chad Merrill Smith, who is under the constructive restraint of probation following his conviction of indecent exposure. (
The issue is whether the act of sunbathing in the nude on an isolated
The facts are undisputed. On the morning of August 7, 1970, petitioner and a male friend went to a beach for the purpose of sunbathing. Although the beach was open to the public, it was not in a residential area and was apparently used by relatively few people. 1 Petitioner removed all his clothes, lay down on his back on a towel, and fell asleep.
Some hours later the police appeared on the scene and arrested petitioner on a charge of indecent exposure. By that time several other persons were present on the beách. 2 It was stipulated, however, that petitioner at no time had an erection or engaged in any activity directing attention to his genitals.
Petitioner was found guilty as charged; the imposition of sentence was suspended for three years, and he was placed on informal probation to the court on the condition he pay a fine of $100. He subsequently learned he was also required to register as a sex offender pursuant to Penal Code section 290. He appealed, but the superior court appellate department affirmed the conviction and the Court of Appeal denied his application to transfer the case for further review.
Penal Code
As used in our penal statutes, the word “willfully” “implies simply a purpose or willingness to commit the act” (
The term has most often been judicially defined in cases applying the statute which makes it a crime to “wilfully or lewdly commit any lewd or lascivious act” upon a child (
We are referred to no case defining “lewdly” as used in
From the foregoing definitions and cases the rule clearly emerges that a person does not expose his private parts “lewdly” within the meaning of
The necessary proof of sexual motivation was not and could not have been made in the case at bar. It is settled that mere nudity does not constitute a form of sexual “activity.” (See, e.g.,
Manual Enterprises
v.
Day
(1962) 370 U.S. 478, 490 [8 L.Ed.2d 639, 648, 82 S.Ct. 1432];
Sunshine Book Co.
v.
Summerfield
(1958) 355 U.S. 372 [2 L.Ed.2d 352, 78 S.Ct. 365] (per curiam);
In re Panchot
(1969) 70 Cal.2d 105, 108 [73 Cal.Rptr. 689, 448 P.2d 385];
People
v.
Noroff
(1967) 67 Cal.2d 791, 794 and fn. 6 [63 Cal.Rptr. 575, 433 P.2d 479]; cf.
Boreta Enterprises, Inc.
v.
Department of Alcoholic Beverage Control
(1970) 2 Cal.3d 85, 101-102 [84 Cal.Rptr. 113, 465 P.2d 1];
Robins
v.
County of Los Angeles (1966) 248
Cal.App.2d 1, 10-11 [56 Cal.Rptr. 853].) Absent additional conduct intentionally directing attention to his genitals for sexual purposes, a person, as here, who simply sunbathes in the nude on an isolated beach does not “lewdly” expose his private parts within the meaning of
Our reading of the statute is reinforced by a consideration of its consequences. Since 1969, the fingerprints and description of every person arrested on a charge of violating
In
Barrows
v.
Municipal Court
(1970) 1 Cal.3d 821 [83 Cal.Rptr. 819, 464 P.2d 483], we had occasion to consider the bearing of section 290 on a similar issue, i.e., whether the vagrancy statute prohibiting “lewd or dissolute conduct in a public place” (
By parity of reasoning, we cannot attribute to the Legislature a belief that persons found to be sunbathing in the nude on an isolated beach “require constant police surveillance” to prevent them from committing such “crimes against society” in the future. Lacking that belief, the Legislature could not reasonably have intended that
It follows that on the undisputed facts of this case petitioner’s conduct was not prohibited by the statute under which he was convicted. In such
The writ is granted. The judgment is vacated, and petitioner is discharged from the restraints thereof.
Wright, C. J., McComb, J., Peters, J., Tobriner, J., Burke, J., and Sullivan, J., concurred.
Notes
According to petitioner’s statement to the probation officer, he and his friend “walked down the beach far enough that we were out of sight from anyone and appeared to be isolated.”
The trial court summarized the police report as stating that “A young couple had just walked by [Smith]. A group of juvenile boys came out of the surf about fifty feet west of Smith. Three juvenile girls were lying on the beach approximately fifty feet south of Smith. One of the girls was looking up, looking in Smith’s direction.”
The People’s reliance on People v. Kerry (1967) 249 Cal.App.2d 246 [57 Cal.Rptr. 289], is misplaced. There the issue was not sufficiency of the evidence but the propriety of admitting proof of prior offenses of the same nature. In any event, in one count in that case the defendant stepped naked from behind some trash cans in the presence of two schoolgirls, while in the second count he appeared naked in a laundromat, “touched his private parts, knelt to his knees in front of [a female customer] and performed an act.” (Id. at p. 249.)
Wainwright v. Procunier (9th Cir. 1971) 446 F.2d 757, is in accord. There a Berkeley policeman on evening patrol observed the defendant urinate against the wall of an abandoned service station. When questioned, the defendant explained he had recently undergone surgery making it necessary for him to urinate frequently. No other persons were present but the defendant’s own companions. The federal appellate court rejected the People’s contention that the officer had probable cause to arrest the defendant for indecent exposure under section 314, subdivision 1. Emphasizing the sexual connotations of the requirement that the act be performed “lewdly,” the court held the statute inapplicable as a matter of law to the defendant’s conduct.