Metropolitan News-Enterprise


Thursday, October 14, 2004


Page 1


Man’s Indecent Exposure to Multiple Victims Rates Only a Single Sentence, Court of Appeal Rules


By DAVID WATSON, Staff Writer


Indecent exposure cannot be punished by sentencing a defendant to separate prison terms for each person who observed the offense, the First District Court of Appeal ruled yesterday.

Saying the issue was one of first impression, the court ruled that Penal Code Sec. 654 prohibits imposing a separate sentence for each witness. Though that section explicitly bars only multiple punishments for a single act violating more than one statute, Justice Ignazio Ruvolo of Div. Two noted, it has long been interpreted as a barrier to sentencing a defendant to more than one term for multiple violations of a single law that result from a single criminal act.

Ruvolo rejected the contention of prosecutors that a recognized exception to the Sec. 654 bar for a crime involving “separate criminal objectives” applied to the case of Irving Leroy Davey, who was sentenced to eight years and eight months in prison for exposing himself to preteen girls on three occasions. He was convicted of annoying or molesting the children as well as of indecent exposure.

Ruvolo said a Marin Superior Court judge was wrong to sentence Davey separately on counts relating to each of the two children involved in two of the offenses. Davey’s case was not like People v. Jimenez (2002) 99 Cal.App.4th 450, in which the court upheld convictions for three separate violations of the same child molestation statute based on a single incident during which defendant fondled three separate portions of victim’s body, Ruvolo declared.

Instead, he reasoned, it was like People v. Spirlin (2000) 81 Cal.App.4th 119, in which the court ruled a defendant who committed three robberies using the same handgun, while remaining in continuous constructive possession of the gun, could not be sentenced separately after being convicted of three counts of being a felon in possession of a gun.

“Similarly,” he wrote, “a single incident of indecent exposure presumably provides a single occasion of sexual gratification, regardless of the number of persons in whose presence the exposure occurs. Accordingly, we conclude that the multiple-objectives exception to section 654 does not apply to a single incident of indecent exposure committed in the presence of multiple persons.”

Nor, the appellate jurist explained, did an exception to Sec. 654’s limitations for violent crimes involving multiple victims apply.

Citing People v. Hall (2000) 83 Cal.App.4th 1084, Ruvolo commented:

“Respondent argues that Hall is distinguishable because the Hall court reasoned that the culpability of the defendant in that case did not depend on the number of people who observed him brandishing his firearm..., whereas appellant’s culpability here is increased by the fact that he did not exhibit himself to random passersby, but rather chose to do so to young girls who were captive and defenseless, and who were scared and traumatized by his actions. We find this argument unpersuasive, because as the case law makes clear, and as Hall squarely held, the applicability of the multiple-victim exception to section 654 does not turn on the defendant’s degree of moral blameworthiness, but rather on whether the crime the defendant committed is one defined to involve an act of violence.”

  He added:

  “In holding that indecent exposure is not a violent crime for the purpose of the multiple-victim exception under section 654, we do not in the least intend to condone appellant’s despicable behavior. Nor are we insensitive to the psychological harm it may have caused to the innocent children he chose to victimize. Nonetheless, his crime is not statutorily defined as involving violence to the person, and the case law clearly limits the applicability of the multiple-victim exception to crimes that are so defined.”

  The case is People v. Davey, A102885.


Copyright 2004, Metropolitan News Company