Opinion
Defendant Adam Lee Eckard appeals from the judgment entered following a jury trial in which he was convicted of indecent exposure and found to have had a prior indecent exposure conviction. Defendant contends his prior Washington state misdemeanor indecent exposure conviction did not render him subject to felony sentencing under Penal Code section 314. (Undesignated statutory references are to the Penal Code.) We conclude that an out-of-state indecent exposure conviction that would have been a misdemeanor indecent exposure if committed in California does not trigger the felony sentencing provision of section 314 because from the Legislature’s choice of the phrase “conviction under subdivision 1 of this section,” in lieu of more genetically descriptive language such as “indecent exposure”; its omission of language addressing prior out-of-jurisdiction convictions with reference to section 314; its limitation of section 668 to felonies; and the absence of any generally applicable misdemeanor equivalent of section 668, we can reasonably infer that the Legislature did not intend for an out-of-jurisdiction misdemeanor indecent exposure conviction to be used to elevate a violation of section 314 to felony status. Accordingly, we modify defendant’s conviction to be a misdemeanor.
BACKGROUND
About 6:10 a.m. on October 17, 2009, 15-year-old Easton and 16-year-old Kurds went to Manhattan Beach to surf. As they descended the stairs to the beach, they noticed defendant staring at them from the beach. When the boys reached the beach, defendant climbed partway up the stairs and continued to watch them. Easton wanted to use the restroom, and Kurds went with him. While Easton remained inside one of the stalls, Kurds looked out the entrance
The prosecutor introduced certified documents showing that on July 25, 2009, defendant pleaded guilty to one count of indecent exposure in violation of Revised Code of Washington section 9A.88.010 in Skagit County, Washington. On a “Probable Cause Affidavit” a police officer stated, under penalty of perjury, that a woman picked up defendant, who was hitchhiking. While riding in her car, defendant “exposed his erect penis to [her], without any solicitation to do so, causing her alarm. [She] yelled at Eckard to get out of her vehicle,” and he did so.
A defense investigator testified that on February 25, 2010, he photographed the restroom and measured the gaps below and around the stall door. The distance between the floor and the bottom of the stall door was 14 1/2 inches. Each side gap was approximately one-quarter-inch wide. The investigator could not see anything through the side gaps, from either inside or outside the stall.
The jury convicted defendant of indecent exposure and found that he had a “prior PC 314” conviction. The jury could not reach a verdict on a misdemeanor charge of lewd conduct, which the prosecutor agreed to dismiss. The court sentenced defendant to 16 months in prison.
DISCUSSION
Section 314, subdivision 1 treats as a misdemeanor an act of “willfully and lewdly” exposing the “person, or the private parts thereof, in any
Defendant’s prior conviction was a violation of Revised Code of Washington section 9A.88.010, which provides, in pertinent part, “A person is guilty of indecent exposure if he or she intentionally makes any open and obscene exposure of his or her person or the person of another knowing that such conduct is likely to cause reasonable affront or alarm.” The offense is a misdemeanor absent a prior conviction under the same statute “or of a sex offense as defined in [Revised Code of Washington section] 9.94A.030.” Defendant’s offense was punished as a misdemeanor and there is no evidence that he had any another prior conviction, let alone a conviction that would have made his Washington indecent exposure conviction a felony had it been committed in California.
Defendant challenged the treatment of his violation of section 314 as a felony on the ground that the Washington statute did not require the element of sexual motivation, and his Washington conviction thus was not equivalent to a prior violation of section 314. We asked the parties to brief a different issue: whether an out-of-state conviction that would have been a misdemeanor if committed in California (such as defendant’s prior Wn. conviction) may be used to elevate a violation of section 314 to felony status, given the language of section 314 and the absence of any express statutory provision regarding out-of-state misdemeanor convictions in general. Defendant argued that such an out-of-state conviction could not be used to elevate his violation of section 314 to felony status, while the Attorney General argued that it could.
Given the plain language of section 314, contrasted with other criminal statutes that expressly encompass prior convictions from other jurisdictions, and the absence of any generally applicable statutory or constitutional provision permitting comprehensive use of out-of-jurisdiction misdemeanor convictions for enhancement purposes, we agree with defendant and conclude that he was not subject to felony sentencing.
In construing a statute, we attempt to determine the intent of the Legislature. (People v. Albillar (2010)
Section 314, which was enacted in 1961, does not state that a second or subsequent conviction of indecent exposure constitutes a felony. Instead, it states, “Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288, every person so convicted is guilty of a felony . . . .” (Italics added.) Viewing these words in their context and giving them their ordinary and usual meaning, it appears that only a prior conviction of violating section 314 or section 288 results in felony treatment for a new section 314 charge.
Section 668 would bring within the scope of section 314 an outTofjurisdiction prior conviction that would have been a felony if it had been committed in California. Section 668, which was enacted in 1872, provides, “Every person who has been convicted in any other state, government, country, or jurisdiction of an offense for which, if committed within this state, that person could have been punished under the laws of this state by imprisonment in the state prison, is punishable for any subsequent crime committed within this state in the manner prescribed by law and to the same extent as if that prior conviction had taken place in a court of this state. The application of this section includes, but is not limited to, all statutes that provide for an enhancement or a term of imprisonment based on a prior conviction or a prior prison term.” Similarly, article I, section 28, subdivision (f)(4) of the California Constitution provides, in pertinent part, “Any prior felony conviction of any person in any criminal proceeding, whether adult or juvenile, shall subsequently be used without limitation for purposes of impeachment or enhancement of sentence in any criminal proceeding.” We have found no misdemeanor equivalent of section 668 and article I, section 28, subdivision (f)(4), that is, a comprehensive provision treating all misdemeanor convictions from other jurisdictions as if they had been committed in California. (As we will discuss post, at least one Veh. Code section encompasses out-of-jurisdiction convictions that would have violated the misdemeanor driving-under-the-influence statute if committed in Cal.)
Thus, if defendant had an out-of-jurisdiction conviction that would have constituted either felony indecent exposure or a felony violation of section 288, he would be eligible for felony sentencing for his first violation of section 314. But the prosecution did not introduce evidence that defendant had such a conviction.
From the Legislature’s choice of the phrase “conviction under subdivision 1 of this section,” in lieu of more genetically descriptive language, such as “indecent exposure”; the omission of language addressing prior out-of-jurisdiction convictions with reference to section 314; the limitation of section 668 to felonies; and the absence of any generally applicable misdemeanor equivalent of section 668, we can reasonably infer that the Legislature did not intend for an out-of-jurisdiction conviction that would be a misdemeanor in California—such as defendant’s prior Washington conviction—to be used to elevate a violation of section 314 to felony status. (In re Eddie M. (2003)
The Attorney General argues that because “section 314 and section 288 are both ‘sexual offenses,’ ... it would be absurd to treat the two sections differently for purposes of establishing an out-of-state prior conviction.” Although it may seem absurd to the Attorney General, the distinction is quite clear because a violation of section 288 triggers the application of section 668. The Attorney General also argues that it is unsound and nonsensical to “treat sex offenders from other jurisdictions far more leniently than those who committed past and present offenses within California.” This may be true, but the plain language of the statute, and the absence of any provision authorizing treatment of an out-of-state misdemeanor indecent exposure conviction as if it had been committed in California precludes doing so. We do not have the power to add to the statute what the Legislature may have left out or to conform it to an assumed intent that does not appear from its language. (Wells Fargo Bank v. Superior Court (1991)
The third case relied upon by the Attorney General deals with a prior misdemeanor conviction: People v. Perry (1962)
In contrast to the cases upon which the Attorney General relies, the prior conviction in controversy is not a felony, and section 668 is thus inapplicable to it. The Attorney General has not cited, and we have not found, any comprehensive constitutional or statutory provision evincing an intent to equate all out-of-jurisdiction misdemeanors to in-jurisdiction misdemeanors for purposes of enhancement. There is no misdemeanor equivalent of section 668. No legislative history materials regarding section 314 are before this court, and the plain language of section 314 (unlike that of § 666, as noted ante) is not broad enough to include an out-of-jurisdiction misdemeanor conviction.
Although the Perry court stated that “habitual criminal statutes are designed to apply to all recidivists . . .” {People v. Perry, supra,
We note that although many of the statutes that we have compared with section 314 were enacted after the most recent (1982) amendment to section 314, section 668 was enacted in 1872, more than a century earlier. But section 667.5, subdivision (f) was enacted in substantially its present form
Finally, the Attorney General argues that section 668 is applicable, in that defendant’s “prior misdemeanor conviction for indecent exposure in Washington could have been punished as a felony in California, so long as [defendant] had at least one other prior indecent exposure conviction.” But nothing in the record indicates that defendant had two prior indecent exposure convictions. The Attorney General’s resort to speculation or matters outside the appellate record is insufficient to trigger the application of section 668.
We note that our interpretation does not, as the Attorney General essentially argues, fail to protect the public from sexual predators. Defendant was convicted of a public offense, and properly subject to a jail term of up to six months and a fine of up to $1,000. He is also required to register as a sex offender for the rest of his life in California. (§ 290, subds. (b), (c).) The registration requirement is intended to enable law enforcement agencies to monitor his location and protect the public. Although the longer period of incarceration entailed in a felony sentence would further protect the public, we cannot rewrite the statute to accomplish such a goal. In defendant’s case, given his presentence credits and the passage of time, he has already served his 16-month felony sentence, although it was improperly imposed.
The jury’s finding that defendant had a prior conviction of violating Penal Code section 314 is stricken. Defendant’s conviction is modified to be a misdemeanor. As modified, the judgment is affirmed and the matter is remanded for resentencing.
Rothschild, J., and Chaney, J., concurred.
Notes
Former section 667.5, subdivision (f) provided: “A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which if committed in California is punishable by imprisonment in the state prison provided the defendants served one year or
The Legislature deleted the phrase “for not less than one year” at the end of the final sentence of former section 314, which had previously read, “Upon the second and each subsequent conviction under subdivision 1 of this section, or upon a first conviction under subdivision 1 of this section after a previous conviction under Section 288 of this code, every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison for not less than one year." (Stats. 1976, ch. 1139, § 182, p. 5112.)
“Any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.” (§ 667, former subd. (a), added by Prop. 8, as approved by voters, Primary Elec. (June 8, 1982).)