People v. Kerry
People v. Kerry
Opinion of the Court
Defendant was charged with two counts of indecent exposure (Pen. Code, § 314, subd. 1) and two prior felony convictions (burglary and indecent exposure). The jurors were unable to agree and a mistrial was declared. Before the second trial, and outside of the presence of the jury, defendant admitted the priors. He was convicted on both counts. Committed to Atascadero State Hospital for observation and diagnosis, he was found not to be a mentally disordered sex offender and returned to the superior court. Probation was denied and defendant was sentenced to the state prison. He appeals from the judgment.
The Fissers incident (count I). On October 13, 1964, around 8 :15 a.m., Christianne Fissers and Sally Drake, walking through an alley on their way to school, saw defendant deposit refuse in a trash can, step from behind a group of cans and stand naked and motionless. Defendant then turned
The Macias incident (count II). On September 21, 1964, around 11 p.m. Ruth Macias, doing her laundry in a laundromat, heard a voice behind her say “Hello”; she turned and saw defendant standing a few feet away from her completely nude except for a small cloth in front of him covering his private parts; he said, “Do you mind if I wash my clothes”; he then removed the cloth and dropped it to the floor exposing himself completely; he touched his private parts, knelt to his knees in front of her and performed an act.
In addition, a number of witnesses testified to four other acts involving defendant—two subsequent and two prior to those charged in the information.
Smith Incident—on April 13,1965, around 11:15 a.m. Jean Smith and Rita Ahern drove into an alley behind their home; Mrs. Smith saw defendant crouching down near some trash barrels; Miss Ahern alighted from the vehicle to ask him to move his car which was blocking the entry to their garage; as he stood erect she saw that he was nude; defendant then took a piece of red material out of his car and held it alternately in front of his face and his license plate; the women took his license number and reported the incident to the police. Reilly Incident—Maureen Reilly, age 7, a neighbor of defendant, often watched him exercise in the garage; once his pants slipped down and she saw his private parts; she told her mother about this on March 13, 1965, and Mrs. Reilly reported the same to the police. Sparks Incident—on February 7, 1963, at 1 a.m., Barbara Sparks was in a laundromat; she observed defendant enter the door naked holding his exposed private parts; upon reporting the matter to the police she was picked up by a police car and taken to a point on the San Bernardino Freeway where defendant was stopped; she identified him as the nude man she had seen 15 minutes earlier in the laundromat. Hull Incident—on December 28, 1962, around 10 p.m., Marie Hull was in a laundromat and observed defendant enter the front door naked, masturbating; she later saw him leave through the rear door.
As to count I, the defense was that his exposure was accidental. Defendant testified that he had gone down the back
Appellant’s main contention is that admission of the evidence of the additional four incidents constituted reversible error. He claims that the testimony of Maureen Reilly in no way aided the jury in establishing identity or intent; the testimony of Mrs. Smith and Miss Ahern failed to show an incident similar to that observed by Mrs. Macias, other than the exposure itself; the testimony of Mrs. Sparks and Mrs. Hull related to acts which were too remote; and the prejudice is apparent because in the first trial in which the evidence was not offered the jury deadlocked, while in the second, the jury had little difficulty in arriving at the guilty verdicts.
“ ‘It is settled in this state that except when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution, or to overcome any material fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge.’ (People v. Woods, 35 Cal.2d 504, 509 [218 P.2d 981]; People
Inasmuch as the evidence was relevant on the question of intent and identity, it was admissible whether the other acts were prior or subsequent. (People v. Coefield, 37 Cal.2d 865, 870 [236 P.2d 570]; People v. Houston, 219 Cal.App.2d 187, 192 [33 Cal.Rptr. 26].) The fact that the Sparks and Hull incidents occurred in 1963 and 1962, respectively, affected the weight of the evidence rather than its admissibility. (People v. Ing, 65 Cal.2d 603, 612 [55 Cal.Rptr. 902, 422 P.2d 590]; People v. Stewart, 241 Cal.App.2d 509, 518 [50 Cal.Rptr. 630] ; People v. Hernandez, 209 Cal.App.2d 33, 40 [25 Cal.Rptr. 640] ; People v. Kearns, 149 Cal.App.2d 113, 121 [307 P.2d 1015]; People v. Burns, 109 Cal.App.2d 524, 538 [241 P.2d 308, 242 P.2d 9].)
“If such evidence is determined to be relevant to prove a material fact in issue, it is for the trial court in the exercise of its judicial discretion to determine whether its probative value is outweighed by its possible prejudicial effect and to admit or exclude it accordingly, ...” (People v. Mc-Caughan, 49 Cal.2d 409, 421-422 [317 P.2d 974].) In view of the striking similarities between the prior and subsequent offenses and those charged, we are satisfied that the trial court did not abuse its discretion by admitting the evidence. (People v. Perez, 65 Cal.2d 615, 619 [55 Cal.Rptr. 909, 422 P.2d 597].)
Finally, appellant argues that the judgment should be reversed for the purpose of determining the validity of the prior conviction of indecent exposure as alleged in the information.
The record shows that on May 17, 1965, prior to the impanelment of the second jury and out of its presence, defend
The trial and defendant’s admission of the prior conviction occurred on May 17, 1965; In re Woods was decided by the California Supreme Court on January 26, 1966. In addition, there is nothing in the record before this court which reflects that defendant was unrepresented at the proceedings leading to the prior conviction; this is so because the defendant admitted the prior and did not elect to contest its validity, and at that time there was no reason for the People to offer any evidence concerning it. Under the circumstances we will not disturb the judgment, and the same is affirmed.
Wood, P. J., and Fourt, J., concurred.
A petition for a rehearing was denied April 4, 1967, and appellant’s petition for a hearing by tbte Supreme Court was denied May 4, 1967.
Reference
- Full Case Name
- THE PEOPLE, and v. JAMES HARVEY KERRY, and
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