1

Filed 7/22/20

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

DWAYNE ALLEN HUBBARD,

Defendant and Appellant.

C088149

(Super. Ct. No. 17FE018579)

APPEAL from a judgment of the Superior Court of Sacramento County, 

Michael A. Savage, Judge. Affirmed.

Jake C. Stebner, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance W. Winters, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen, Christina 

Hitomi Simpson, Deputy Attorney General, for Plaintiff and Respondent.

*

 Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified 

for publication with the exception of parts III and IV.
2

Defendant Dwayne Allen Hubbard appeals from his conviction by jury trial for 

felony indecent exposure. Among his contentions are that the prosecutor committed 

misconduct by improperly referring to his decision to not testify, in violation of Griffin v. 

California (1965) 380 U.S. 609, at page 615, and that the trial court erred by failing to 

instruct the jury sua sponte on attempted indecent exposure as a lesser included offense. 

In the published portion of our opinion, we disagree with these claims.

In the unpublished portion of our opinion, we disagree with an additional claim of 

prosecutorial misconduct and agree with defendant’s claim that the trial court erred by 

admitting certain photographs into evidence. We find the error harmless and affirm the 

judgment.

FACTS AND PROCEEDINGS

The testimony presented at defendant’s trial revealed the following:

At approximately 10:00 p.m., after finishing class at Cosumnes River College, 

Nayeli B. stood at the top of a set of stairs in front of the Winn Center while awaiting her 

ride home. She stood on the left side of the stairs. It was dark, but the area was well-lit 

by streetlamps. Nayeli saw defendant walking toward her; there was no one else in front 

of the building. Defendant walked closely past her. 

After walking past Nayeli, defendant walked down the stairs and stood behind two 

signs with a several inch gap between them; the signs were to the left of the bottom of the 

stairs and approximately 36 feet from her. That area was illuminated by a thin-poled 

streetlamp located between defendant and Nayeli. 

Nayeli felt uncomfortable, so she called her girlfriend. Defendant “kept looking 

back staring at [her]” and “gawking” at her for approximately one to two minutes. Nayeli 

increased her attention on him so she could describe him for her girlfriend. She “noticed 

he was masturbating” while gawking at her. She did not see defendant pull out his penis, 

but she could see his penis, and she saw him moving his hand up and down in a 

“masturbating motion.” She watched him masturbate for approximately 30 to 40 
3

seconds.1 Defendant did not turn his back to her, position himself behind one of the 

signs, try to cover himself up, or stop gawking at her. Nayeli testified the light pole was 

“[a]bsolutely not” obstructing her view of defendant. 

Nayeli ran back into the building; she was crying and screaming. She told an 

employee that she had seen a man masturbating. She said defendant was “thrusting 

himself” and that he “showed [her] his privates.” The employee called the police. 

Campus security arrived at the scene and arrested defendant within three to five minutes.

The prosecution charged defendant with a single count of indecent exposure (Pen. 

Code, § 314, subd. 1)2 and alleged that he had been previously convicted of committing a 

lewd or lascivious act on a child (§ 288, subd. (a)). That previous conviction rendered 

the indecent exposure charge a felony. (§ 314, subd. 2.) The information further alleged 

defendant had three serious felony prior convictions within the meaning of section 667, 

subdivision (e)(2)(C)(iv) and section 1170.12, subdivision (c)(2)(C)(iv) -- lewd or 

lascivious act on a child under 14 years (§ 288, subd. (a)), assault with intent to commit a 

sexual offense (§ 220), and attempted kidnapping (§§ 664, 207, subd. (a)). 

A jury found defendant guilty of indecent exposure. In a bifurcated proceeding, 

the trial court found the allegations true. The court denied defendant’s motion to dismiss 

the prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 

13 Cal.4th 497. Applying the three strikes law, the court sentenced defendant to 25 years 

to life in prison. 

Defendant timely appealed. Additional facts will be set out in the Discussion as 

necessary. 

1

 Nayeli later testified she ran back into the Winn Center as soon as she noticed he was 

masturbating. 

2

 Further undesignated statutory references are to the Penal Code. 
4

DISCUSSION

I

Allegation of Griffin Error

Defendant neither testified nor called any witnesses on his behalf. He contends 

the prosecutor improperly commented on his failure to testify, in violation of Griffin. 

Although we view this as a fairly close case, as we explain in detail below, we conclude 

the prosecutor’s challenged comments were fair responses to specific portions of defense 

counsel’s closing argument. 

A. Procedural Background

During her closing argument, defense counsel argued that defendant was merely a 

student who had to urinate: “So this student is leaving campus. He has to take a pee. He 

is walking down the stairs. He is going to the Light Rail station. He has no idea how 

many people might be standing there at that Light Rail station. There is one person 

where he is, okay? There is one person that he just walked past. She had just stopped in

front of him at the top of those stairs. He passed her. He glances back once to check is 

she going to stay there. Is this a private place or not.” Two short paragraphs of the 

transcript from the end of her closing, defense counsel emphasized the lack of physical 

evidence against defendant and told the jury that: “In no way, shape or form did the 

government give a student any chance of proving he is not guilty.” (Italics added.) The 

trial court sustained the prosecutor’s objection that the argument assumed facts not in 

evidence. 

After a recess, at the beginning of his rebuttal argument, the prosecutor read 

CALCRIM No. 355: “A defendant has an absolute constitutional right not to testify. He 

may rely on the state of the evidence and argue that the People have failed to prove the 

charges beyond a reasonable doubt. Do not consider for any reason at all the fact the 

defendant did not testify. Do not discuss that fact during your deliberations or let it 

influence your decision in any way.” 
5

The prosecutor then argued: “That’s the law and you guys have to follow it. You 

must understand that. Also, the burden in this case, it’s with the People. It’s with me. It 

never shifts. [Defense counsel] is absolutely correct when she tells you they don’t have 

to do anything. They don’t have to put on any evidence. 

“But now let’s talk about what they are not allowed to do. She’s not allowed to 

get up here in closing and make up facts of which there is no evidence of that. What am I 

talking about? Well, apparently he’s a college student who was getting out of class, 

going to the Light Rail station, stopped to pee. What evidence did we hear of that? What 

evidence at all? 

“He had a collared shirt and a backpack on. That is true. You heard that evidence. 

You didn’t hear any evidence of the narrative she spun about this innocent man walking 

after getting out of college class going to the Light Rail station, zero, none. 

“The defendant has an absolute right not to testify, but she cannot use that as a 

sword and a shield. And that’s what she did. And the reason she did it, because these 

facts don’t break good for her or her client. You are left with the evidence you heard.” 

The prosecutor concluded his rebuttal: “Did [defendant] sit around innocently

peeing or just hanging out facing the Winn Center? No, he didn’t. He went to the Light 

Rail station. [¶] The facts are clear, the evidence is uncontroverted. The defendant has a 

constitutional right to the presumption of innocence. He has that throughout these 

proceedings, up and until you are convinced otherwise. The burden never shifts. 

Remember that. But what he is not entitled to do is a made up universe of facts that was 

just given to you in the defense attorney’s closing argument.” 

At the conclusion of the prosecutor’s argument, defense counsel requested to 

approach the bench. The lawyers and the court conferenced in chambers. After giving 

the jury its final instructions and dismissing it to begin deliberations, the court told

defense counsel, “I know you have something you want to put on the record . . . so we 

will get to that in just a moment.” After addressing other procedural issues, the court 
6

stated, “And your argument on the closing, Ms. Cunningham.” Defense counsel then 

objected to the prosecutor’s argument; she argued he improperly drew attention to the 

fact that defendant did not testify before arguing there was no evidence to support 

defense counsel’s version of the events. According to defense counsel, the prosecutor’s 

argument implied defendant should have testified. She requested a curative instruction.

The trial court observed the prosecutor had a right to recite any jury instruction, 

and it was not improper to highlight the fact that there was no evidence that defendant 

was merely urinating. It did not give a curative instruction. 

B. Standard of Review

We evaluate claims of Griffin error by inquiring whether there is “a reasonable 

likelihood that any of the [prosecutor’s] comments could have been understood, within its 

context, to refer to defendant’s failure to testify.” (People v. Clair (1992) 2 Cal.4th 629, 

663.) “[W]hen the claim focuses upon comments made by the prosecutor before the jury, 

the question is whether there is a reasonable likelihood that the jury construed or applied 

any of the complained-of remarks in an objectionable fashion. [Citation.]” (People v. 

Samayoa (1997) 15 Cal.4th 795, 841.) We review prosecutorial remarks referring to the 

defendant’s failure to testify de novo. (See People v. Roybal (1998) 19 Cal.4th 481, 514.) 

“What is crucial to a claim of prosecutorial misconduct is not the good faith vel 

non of the prosecutor, but the potential injury to the defendant.” (People v. Benson

(1990) 52 Cal.3d 754, 793.) “Under the federal standard, prosecutorial misconduct that 

infects the trial with such ‘ “unfairness as to make the resulting conviction a denial of due 

process” ’ is reversible error. [Citation.] In contrast, under our state law, prosecutorial 

misconduct is reversible error where the prosecutor uses ‘deceptive or reprehensible 

methods to persuade either the court or the jury’ [citation] and ‘ “it is reasonably probable 

that a result more favorable to the defendant would have been reached without the 

misconduct” ’ [citation].” (People v. Martinez (2010) 47 Cal.4th 911, 955-956.) 
7

C. Forfeiture

The Attorney General contends defendant forfeited the argument by not timely 

objecting to the argument and by not objecting on the basis of a federal constitutional 

error. We disagree. 

“To preserve a misconduct claim for review on appeal, a defendant must make a 

timely objection and, unless an admonition would not have cured the harm, ask the trial 

court to admonish the jury to disregard the prosecutor’s improper remarks or conduct. 

[Citation.]” (People v. Martinez, supra, 47 Cal.4th at p. 956.) In People v. Peoples 

(2016) 62 Cal.4th 718 at page 801, our Supreme Court concluded the defendant did not 

forfeit a prosecutor misconduct claim despite his failure to contemporaneously object to 

the statements. The court held that the defendant’s motion for a mistrial the day after the 

prosecutor’s remarks preserved the issue on appeal where the motion occurred before the 

jury had begun deliberating and well before a verdict had been reached. (Ibid.) 

Here, while the referenced chambers conference was unreported, it appears 

defense counsel raised her objections to the prosecutor’s argument immediately after the 

conclusion of the prosecutor’s argument. We conclude defendant’s objection put the 

court on notice that misconduct was alleged in time for the court to issue a curative 

instruction. Thus, defendant’s objection was timely.

We also disagree that defendant forfeited the argument by not objecting on the 

basis of a federal constitutional error. Defendant contended that the prosecutor had made 

“an improper argument” by highlighting that he did not testify and implying that he 

should have testified to support his trial counsel’s version of the events. That objection 

and explanation was sufficient to preserve the claim. 

D. Griffin Error Background

Under the rule in Griffin v. California, supra, 380 U.S. at pages 612 to 613, it is a 

violation of the Fifth Amendment to the United States Constitution for the prosecutor or 

court to comment on the defendant’s failure to testify. The Griffin rule has been extended 
8

to prohibit a prosecutor from commenting, either directly or indirectly, on the defendant’s 

failure to testify. (People v. Medina (1995) 11 Cal.4th 694, 755; People v. Guzman 

(2000) 80 Cal.App.4th 1282, 1287 [Griffin has been interpreted as prohibiting 

prosecution from “so much as suggesting to the jury that it may view the defendant’s 

silence as evidence of guilt”]; People v. Vargas (1973) 9 Cal.3d 470, 476 [prosecutor’s 

argument asserting “there is no denial at all that they were all there” connotes a personal 

response from the accused himself].) This rule does not prohibit a prosecutor’s 

comments on the state of the evidence, or on the failure of the defense to introduce 

material evidence or to call logical witnesses. (People v. Hovey (1988) 44 Cal.3d 543, 

572; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1524.) “ ‘ “ ‘[A] prosecutor is 

given wide latitude during argument. The argument may be vigorous as long as it 

amounts to fair comment on the evidence, which can include reasonable inferences, or 

deductions to be drawn therefrom.’ ” ’ ” (People v. Hill (1998) 17 Cal.4th 800, 819 .)

As relevant here, under certain specific circumstances a prosecutor’s reference to a

defendant’s opportunity to testify may be properly classified as fair response to defense 

counsel’s argument. This tactic is not without risk, but the United States Supreme Court 

has described a situation where a reference to a lack of evidence coming from defendant 

himself does not violate his Fifth Amendment privilege. In United States v. Robinson

(1988) 485 U.S. 25, defense counsel urged during closing argument that the government 

had not allowed defendant to explain his side of the story in a mail fraud prosecution. 

The prosecutor responded during his closing that defendant “ ‘could have taken the stand 

and explained it to you . . . .’ ” (Id. at p. 28.) The Court observed that the prosecutor’s 

comment referred to defendant’s decision to not testify as declining an opportunity to tell 

his side of the story. (Id. at pp. 31-32.) The Court did not find error, explaining the 

difference between Griffin error and the prosecutor’s comments in Robinson: “Where the 

prosecutor on his own initiative asks the jury to draw an adverse inference from a 

defendant’s silence, Griffin holds that the privilege against compulsory self-incrimination 
9

is violated. But whereas in this case the prosecutor’s reference to the defendant’s 

opportunity to testify is a fair response to a claim made by defendant or his counsel, we 

think there is no violation of the privilege.” (Id. at p. 32.) The Court observed, “ ‘[The] 

central purpose of a criminal trial is to decide the factual question of the defendant’s guilt 

or innocence, [citation] . . . .’ [Citation.] To this end it is important that both the 

defendant and the prosecutor have the opportunity to meet fairly the evidence and 

arguments of one another.” (Id. at p. 33.) “It is one thing to hold . . . that the prosecutor 

may not treat a defendant’s exercise of his right to remain silent at trial as substantive 

evidence of guilt; it is quite another to urge, as defendant does here, that the same 

reasoning would prohibit the prosecutor from fairly responding to an argument of the 

defendant by adverting to that silence.” (Id. at p. 34.)

Thus “[q]uestions or argument suggesting that the defendant did not have a fair 

opportunity to explain his innocence can open the door to evidence and comment on his 

silence. [Citation.]” (People v. Lewis (2004) 117 Cal.App.4th 246, 257, italics added.) 

E. Analysis

As we have detailed above, here defense counsel argued that defendant was 

merely a student leaving campus who had to urinate, despite the fact that no evidence had 

been admitted supporting that description of events. She added that the government did 

not give “a student any chance of proving he is not guilty.” 

The prosecutor then began his rebuttal by reciting CALCRIM No. 355. Absent 

the preceding argument by defense counsel, this may well have been problematic. (See 

In re Rodriguez (1981) 119 Cal.App.3d 457, 468 [discouraging reference to comparable 

instruction by the prosecutor in argument, noting that the “probable effect is to focus the 

jury’s attention upon” defendant’s failure to testify and comments thereon, and that 

“depending upon the tone and manner in which they are delivered, . . . convey a meaning 

precisely contrary to their literal import”].) 
10

The prosecutor then reminded the jury that the defense did not have to put on any 

evidence, and stated: “But now let’s talk about what they are not allowed to do. She’s 

not allowed to get up here in closing and make up facts of which there is no evidence of 

that. What am I talking about? Well, apparently he’s a college student who was getting 

out of class, going to the Light Rail station, stopped to pee. What evidence did we hear 

of that? What evidence at all?” He continued: “You didn’t hear any evidence of the 

narrative she spun about this innocent man walking after getting out of college class 

going to the Light Rail station, zero, none.” These statements were permissible 

comments on the evidence and did not comment on defendant’s decision to not testify. 

(See People v. Bradford (1997) 15 Cal.4th 1229, 1339-1340 [prosecutor’s statement that 

“ ‘there is no evidence to the contrary’ ” does not constitute Griffin error because it did 

not allude to the lack of refutation or denial by defendant].) 

The prosecutor continued: “The defendant has an absolute right not to testify, but 

she cannot use that as a sword and a shield. And that’s what she did. And the reason she 

did it, because these facts don’t break good for her or her client. You are left with the 

evidence you heard.” These statements, while again referencing CALCRIM No. 355 and 

arguably impermissible comments on defendant’s decision to not testify when taken out 

of context, in this instance were fair response to defense counsel’s closing argument.3 

The prosecutor fairly observed that defense counsel had just argued a version of the facts 

largely lacking in evidentiary support--the sword--while not subjecting defendant or that 

version of the facts generally to cross examination--the shield. And, importantly, as we 

have described above, defense counsel had just told the jury that “the government” had 

not, in any “way, shape, or form,” given defendant the “chance of proving he is not 

3

 It is important here to note that defense counsel apparently identified as female and 

defendant as male. Therefore the majority of the prosecutor’s references in this segment 

(to “her” and “she”) were to defense counsel, not defendant himself.
11

guilty.” Under Robinson and Lewis, this argument permitted the prosecutor to counter 

the suggestion that defendant was somehow precluded by the government from telling his 

story. While we recognize that, for practical purposes, defendant was not able to testify 

given his prior sex offenses (see Evid. Code, § 788; People v. Linyard (1957) 151 

Cal.App.2d 50, 55), here defense counsel herself raised the issue. 

In concluding his rebuttal argument, the prosecutor stated: “Did [defendant] sit 

around innocently peeing or just hanging out facing the Winn Center? No, he didn’t. He 

went to the Light Rail station. [¶] The facts are clear, the evidence is uncontroverted. 

The defendant has a constitutional right to the presumption of innocence. He has that 

throughout these proceedings, up and until you are convinced otherwise. The burden 

never shifts. Remember that. But what he is not entitled to do is a made up universe of 

facts that was just given to you in the defense attorney’s closing argument.” 

Our Supreme Court has held that a prosecutor may commit Griffin error if he 

argues to the jury that certain testimony or evidence is uncontradicted, if such 

contradiction or denial could be provided only by the defendant, who therefore would be 

required to take the witness stand. (People v. Johnson (1992) 3 Cal.4th 1183, 1229.) The 

prosecutor may, however, describe the evidence as “unrefuted” or “uncontradicted” 

where the evidence could have been contradicted by witnesses other than defendant. 

(Ibid.) In People v. Bruce G. (2002) 97 Cal.App.4th 1233 at pages 1244 to 1245, we 

observed that a prosecutor may characterize evidence as “uncontroverted” even where the 

defendant is the only person who could have known what did or did not happen if the 

prosecutor was commenting on the entire state of the evidence. 

Here, defendant could have presented other witnesses to support his counsel’s 

version of events. For example, defendant could have called his professor, a classmate, 

or an administrator to testify that he was in a class that had concluded immediately before 

the incident or some other fact to show that he was, indeed, “a student,” as counsel 

argued. Moreover, here the prosecutor’s statement that the evidence was 
12

“uncontradicted” was a comment on the state of the evidence rather than a comment on 

defendant’s failure to testify. The comment simply observed, correctly, that no evidence 

contradicting Nayeli’s version of events had been presented. Because the prosecutor’s 

statements were fair comments in response to a defense argument that was not based on 

actual evidence admitted at trial, this segment of the argument was also permissible.

For these reasons, we conclude the prosecutor did not commit Griffin error in any 

of his challenged comments during his rebuttal argument.

II

Lesser Included Offense Instruction

Defendant contends the trial court erred by failing to instruct the jury sua sponte 

on the law of attempted indecent exposure as a lesser included crime of indecent 

exposure. He asserts there is substantial evidence that he committed attempted indecent 

exposure but not the completed crime of indecent exposure, requiring the court to instruct 

the jury on attempt. We disagree. 

A. Duty to Instruct

“ ‘The trial court is obligated to instruct the jury on all general principles of law 

relevant to the issues raised by the evidence, whether or not the defendant makes a formal 

request.’ [Citations.] ‘That obligation encompasses instructions on lesser included 

offenses if there is evidence that, if accepted by the trier of fact, would absolve the 

defendant of guilt of the greater offense but not of the lesser.’ [Citations.] ‘To justify a 

lesser included offense instruction, the evidence supporting the instruction must be 

substantial—that is, it must be evidence from which a jury composed of reasonable 

persons could conclude that the facts underlying the particular instruction exist.’ 

[Citations.] [¶] ‘ “Conversely, even on request, the court ‘has no duty to instruct on any 

lesser offense unless there is substantial evidence to support such instruction.’ ” 

[Citation.] This substantial evidence requirement is not satisfied by “ ‘any evidence . . . 

no matter how weak,’ ” but rather by evidence from which a jury composed of reasonable 
13

persons could conclude “that the lesser offense, but not the greater, was committed.” 

[Citation.] “On appeal, we review independently the question whether the trial court 

failed to instruct on a lesser included offense.” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 

115-116.) An attempt to commit a specific intent crime is considered a lesser included 

offense of the completed crime. (In re Sylvester C. (2006) 137 Cal.App.4th 601, 609.) 

“Doubts as to the sufficiency of the evidence to warrant instructions should be 

resolved in favor of the accused.” (People v. Wilson (1967) 66 Cal.2d 749, 763.) 

B. Indecent Exposure

“Generally, a conviction for indecent exposure requires proof of two elements: 

‘(1) the defendant must willfully and lewdly expose the private parts of his person; and 

(2) such exposure must be committed in a public place or in a place where there are 

present other persons to be offended or annoyed thereby.’ [Citation.]” (People v. 

Carbajal (2003) 114 Cal.App.4th 978, 982 (Carbajal).) “[A] conviction for indecent 

exposure under Penal Code section 314, subdivision 1 requires evidence that a defendant 

actually exposed his or her genitals in the presence of another person, but there is no 

concomitant requirement that such person actually must have seen the defendant’s 

genitals.” (Id. at p. 986.)

The trial court instructed the jury with CALCRIM No. 1160, which provides: “To 

prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The 

defendant willfully exposed his genitals in the presence of another person or persons who 

might be offended or annoyed by the defendant’s actions; [¶] [AND] [¶] 2. When the 

defendant exposed himself, he acted lewdly by intending to direct public attention to his 

genitals for the purpose of sexually arousing or gratifying himself or another person, or 

sexually offending another person[.] [¶] Someone commits an act willfully when he 

does it willingly or on purpose. It is not required that he intend to break the law, hurt 

someone else, or gain any advantage. [¶] It is not required that another person actually 

see the exposed genitals.” 
14

As for attempted indecent exposure, “[a]n attempt to commit a crime consists of 

two elements: a specific intent to commit the crime, and a direct but ineffectual act done 

toward its commission.” (§ 21a.) “[A] defendant can be convicted of an attempt to 

commit a crime even though the crime, in fact, was completed.” (People v. Rundle

(2008) 43 Cal.4th 76, 138, fn. 28, disapproved on another ground in People v. Doolin

(2009) 45 Cal.4th 390, 421, fn. 22; § 663.)

In Carbajal, supra, 114 Cal.App.4th 978, the appellate court directly addressed the 

issue whether a defendant may be convicted of indecent exposure where the complaining 

witness did not personally see the defendant’s genitals. While sitting at a table in a 

restaurant, Carbajal put his fist inside his shorts and moved his hands up and down for 

five to 10 minutes. He then ejaculated onto the floor. The complaining witness testified 

she did not see Carbajal’s penis because he wore a long t-shirt and loose fitting shorts. 

The witness could tell he had taken his penis out of his shorts because she would see the 

skin of his fist “ ‘[w]hen he made strong movements . . . .’ ” (Id. at p. 981.) The jury 

found the defendant guilty of indecent exposure and lewd conduct. (Ibid.)

On appeal, Carbajal challenged the sufficiency of the evidence as to his conviction 

for indecent exposure because the complaining witnesses did not actually see his genitals. 

(Carbajal, supra, 114 Cal.App.4th at p. 982.) The court reviewed the history of section 

314 and the application of similar statutes in other jurisdictions. (Carbajal, at pp. 983-

986.) The court first observed that, at common law, indecent exposure only required that 

the exposure had occurred in a public place, not that it be observed. (Id. at p. 983, citing 

3 Wharton’s Criminal Law (15th ed. 1995) § 308, pp. 196-200, fns. omitted.) In 

reviewing recent cases from other jurisdictions, the court noted several jurisdictions have 

not required the exposure to be witnessed. (Carbajal, at pp. 984-985 [citing cases].) The 

court identified potentially conflicting case law from Texas, where a divided appellate 

court held that a man using his hand to shield his otherwise uncovered penis had not 

committed indecent exposure (Beasley v. State (Tex. App. 1995) 906 S.W.2d 270, 271, 
15

272), and a different appellate court later concluded that circumstantial evidence 

suggesting a defendant was naked from the waist down and was masturbating was 

sufficient to support a conviction for indecent exposure (Metts v. State (Tex. App. 2000) 

22 S.W.3d 544, 546-548). (Carbajal, at p. 985.) Finally, the Carbajal court described 

two cases from other jurisdictions in which the evidence was insufficient to support the 

conclusion that the defendant had actually exposed himself. (Carbajal, at p. 986, citing 

Commonwealth v. Arthur (Mass. 1995) 650 N.E.2d 787, 788-789 [evidence insufficient 

where defendant only exposed pubic hair], State v. Jaime (Conn. Cir. Ct. 1967) 236 A.2d 

474, 475 [evidence insufficient where defendant was observed “shaking his hand in the 

region of his sexual organ” but not exposing himself].) 

The Carbajal court concluded: “Our review of the common law and cases from 

other jurisdictions leads us to conclude that a conviction for indecent exposure under 

Penal Code section 314, subdivision 1 requires evidence that a defendant actually 

exposed his or her genitals in the presence of another person, but there is no concomitant 

requirement that such person actually must have seen the defendant’s genitals. Thus, we 

will uphold defendant’s conviction for indecent exposure in the absence of evidence of 

any direct visual observation of his genitals so long as there is sufficient circumstantial 

evidence to show that actual exposure occurred.” (Carbajal, supra, 114 Cal.App.4th at p. 

986.) 

Defendant relies on People v. Rehmeyer (1993) 19 Cal.App.4th 1758, where a 

complaining witness awoke to the sound of Rehmeyer putting lotion on his skin and 

rubbing briskly. The witness saw a nude--except for a baseball cap--man in her doorway, 

who turned and ran away when she awoke. She did not see the man’s genitals. (Id. at p. 

1764.) A jury found Rehmeyer guilty of attempted indecent exposure, and he challenged 

the conviction on appeal. (Id. at p. 1766.) The appellate court concluded sufficient 

evidence supported Rehmeyer’s intent to expose himself and that he was masturbating 

before the witness woke up. (Id. at p. 1767.) But the court in Rehmeyer notably did not
16

conclude that the evidence presented would have been insufficient to support a conviction 

for indecent exposure merely because the witness did not see Rehmeyer’s genitals. 

Indeed, the court did not discuss whether a complaining witness would need to see a 

defendant’s genitals to support a conviction for indecent exposure. 

We apply the standard described in Carbajal, supra, 114 Cal.App.4th at page 986, 

and conclude here that there was not substantial evidence to require the attempted 

indecent exposure instruction. Defendant asserts that a juror skeptical of Nayeli’s version 

of events could have reasonably concluded that the prosecution had only proved

attempted indecent exposure. He contends Nayeli was standing approximately 36 feet 

away from defendant, there was no evidence of semen at the scene, the events occurred at 

night, and defendant was standing between two signs. He argues Nayeli was on “high 

alert” and could have misperceived or confabulated what actually occurred. Finally, he 

asserts circumstantial evidence allows for the conclusion that the light pole could have 

partially or completely blocked her view of defendant’s genitals. Defendant concludes: 

“[A] reasonable juror had reason to conclude that [defendant] was masturbating and 

attempting to expose his penis to [Nayeli], but that his effort was thwarted by the visual 

barriers of darkness, distance, and physical obstructions between him and [Nayeli].”

However, the issue here is not whether Nayeli actually observed defendant’s 

genitals. Rather, the issue is whether, in Nayeli’s presence, defendant willfully exposed 

himself lewdly for the purpose of sexually gratifying himself or offending Nayeli. 

Defendant argues that a reasonable juror could have concluded that defendant’s conduct 

satisfied all of the elements but that his genitals were not visible to Nayeli. But in that 

circumstance, defendant would still have satisfied the elements of indecent exposure. 

Therefore, we conclude there was no factual circumstance in which the jury could have 
17

found defendant guilty of attempted indecent exposure and not guilty of indecent 

exposure.4

III

Defendant’s Booking Photograph and Photograph of Nayeli

Defendant next contends the trial court erred by admitting into evidence his 

booking photograph and a photograph of Nayeli. Defendant argues the photographs were 

inadmissible because they were irrelevant and because the risk of undue prejudice 

substantially outweighed any probative value of the photographs. We agree there was 

error but find it harmless. 

A. Procedural Background

The prosecutor sought to introduce defendant’s booking photograph and a 

photograph of Nayeli taken before the incident. In defendant’s photograph, his eyes 

appear red, watery, and almost closed. The top of the photo states defendant’s “Arrest 

Number.” The photograph extends to defendant’s top shoulder and neck area; he appears 

to be wearing a dark-colored outer layer, although it is not clear what that garment is, and 

possibly a collared shirt. To the extent the photograph would otherwise show defendant’s 

clothes, almost all of that area is covered by defendant’s long, dreadlocked hair. 

Defendant had not changed his appearance since the photograph was taken. 

Nayeli presents in her photograph as a smiling and pleasant young lady, possibly 

at some kind of event. She testified the photograph was taken around the time of the 

incident, which was less than nine months before trial. No evidence suggested her 

appearance had changed between the date of the incident and the date of her testimony. 

4

 Defendant also argues this issue has been preserved despite defendant’s failure to raise 

it at trial, the error was not invited, and the error was not harmless. Because we conclude 

the trial court did not err by not instructing the jury on the law of attempted indecent 

exposure, we do not reach these other issues. 
18

Defendant moved to exclude the photographs from evidence. Regarding the 

photograph of Nayeli, defense counsel argued the photograph was irrelevant and “only 

serve[d] to invoke sympathy and bias on the part of the jury.” The prosecutor argued: “I 

will be honest with you, your Honor, I use them in Power Point closings, pictures of the 

victim and defendant. That’s why I want it.” The trial court permitted use of the 

photograph provided it “accurately depicts who the woman is . . . just to remind the jury 

of who she is.” 

The trial court found defendant’s booking photograph was not “particularly 

prejudicial” and that defendant looked “sleepy, if anything.” The court initially deferred 

ruling and after defense counsel’s cross examination of Nayeli--which focused on her 

ability to observe defendant’s conduct given the lighting and physical impediments--the 

court concluded the booking photograph was relevant to prove identity, pointing out that 

defense counsel had questioned Nayeli about her ability to accurately perceive defendant 

during the incident. The court also determined the booking photograph was relevant to 

show what defendant looked like on the night of the incident to justify Nayeli’s reaction 

to him coming up from behind her. 

At the court’s direction, the prosecutor displayed the booking photograph and the 

photograph of Nayeli on different slides during closing argument, although he had 

originally expressed the intention to show them side by side on one slide. He told the 

jury that he did not display the photograph so the jury would “condemn” defendant or 

“judge” him based on the photograph. Rather, the prosecutor stated that he displayed the 

photograph “because he’s wearing the clothes that he was wearing that night.” 

B. Legal Background 

Only relevant evidence is admissible. (Evid. Code, § 350.) All relevant evidence 

is admissible unless excluded under the federal or California Constitution or by statute. 

(Id., § 351.) Evidence is relevant where it has “any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.” 
19

(Id., § 210.) “The trial court is vested with wide discretion in determining the relevance 

of evidence. [Citation.] The court, however, has no discretion to admit irrelevant 

evidence. [Citation.]” (People v. Babbitt (1988) 45 Cal.3d 660, 681.) We review the 

trial court’s decision whether to admit evidence for abuse of discretion. (People v. 

Benavides (2005) 35 Cal.4th 69, 90.) 

“ ‘In reviewing the ruling of the trial court, we reiterate the well-established 

principle that “the admissibility of evidence has two components: (1) whether the 

challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence Code 

section 210, and (2) if the evidence was relevant, whether the trial court abused its 

discretion under Evidence Code section 352 in finding that the probative value of the 

[evidence] was not substantially outweighed by the probability that its admission would 

create a substantial danger of undue prejudice.” ’ ” (People v. Carter (2005) 36 Cal.4th 

1114, 1166.) Our Supreme Court has “ ‘ “described the ‘prejudice’ referred to in 

Evidence Code section 352 as characterizing evidence that uniquely tends to evoke an 

emotional bias against a party as an individual, while having only slight probative value 

with regard to the issues. [Citation.]” ’ ” (Id. at p. 1168.) 

In making this determination, a court can consider whether the erroneously 

admitted evidence seems “likely to have appreciably intensified whatever feelings –

whether of hostility toward defendant or sympathy toward his victim – that the jury may 

have developed in this case.” (People v. Poggi (1988) 45 Cal.3d 306, 323.) 

C. Booking Photo

Defendant’s booking photograph was not relevant. Identity was not disputed. 

Defense counsel sought to establish that Nayeli could not see what defendant was doing 

behind the signs, but she did not argue he was not there. Even if identity were disputed, 

the booking photograph was only minimally relevant to proving identity. Nayeli 

identified defendant in person the night of the incident, and she identified him in court. 

The officer who responded to the scene identified defendant in court and identified 
20

defendant as the person in the booking photograph, but did not testify that defendant’s 

physical appearance had changed. 

Moreover, the parties agreed that the photograph does not depict defendant as he 

looked that evening. The photograph only shows the collar portion of what defendant 

wore on the night in question, which was not in dispute. The parties agree the 

photograph depicted defendant “mid-blink,” which we presume was not how defendant 

looked while interacting with Nayeli. To the extent that the photograph was relevant to 

show his haircut, facial hair, or other identifying features, defendant had not changed any 

of those things between the date of his arrest and the trial date. 

Any marginal relevance was substantially outweighed by its prejudicial effect. 

Defendant’s nearly-closed, red, watery eyes give the appearance of intoxication. As 

argued by defense counsel at trial, the photograph is very unflattering. In our view, the 

booking photograph only served to provide the jury with a lasting, negative image of 

defendant. It was an abuse of discretion to admit the irrelevant, prejudicial photograph. 

D. Photo of Nayeli 

The photograph of Nayeli was completely irrelevant. We are not persuaded by the 

prosecutor’s argument that he “use[s] them in Power Point closings” and the trial court’s

conclusion that the photograph was admissible to “remind the jury of who she is.” Nayeli 

was one of only three witnesses to testify during the only day of testimony and had 

testified the day before. On appeal, the Attorney General argues the photograph of 

Nayeli “was relevant to whether [defendant] [w]as guilty of the charged crime. 

Accordingly, the photo was relevant.” How exactly the photograph is relevant, the 

Attorney General does not say. Frankly, the argument makes no sense. It was an abuse 

of discretion to admit the photograph.

E. Harmless Error

If we determine a trial court abused its discretion in admitting evidence that had a 

probative value that was outweighed by its potentially prejudicial effect, reversal is 
21

required when the error is not deemed harmless under the Watson5standard. (People v. 

Carter, supra, 36 Cal.4th at pp. 1170-1171.) “ ‘Under the Watson standard, the 

erroneous admission of a photograph warrants reversal of a conviction only if the 

appellate court concludes that it is reasonably probable the jury would have reached a 

different result had the photograph been excluded.’ ” (Ibid.) 

We conclude it was not reasonably probable that the jury would have returned a 

different verdict had the photographs been excluded. Nayeli testified the previous day, 

and the impression of her testimony was likely fresh in the jury’s mind. The photograph 

of Nayeli did not affect her version of events as explained through her testimony. While 

the photograph tends to show Nayeli in a favorable light, which could make her appear 

more sympathetic to the jury, we conclude it was not reasonably probable any such 

sympathy would have changed the verdict. 

Similarly, the jury had the opportunity to observe defendant throughout the trial. 

Testimony at trial informed the jury that defendant was arrested on the night in question, 

and nothing in the photograph suggested defendant had previously been arrested, so the 

photograph provided no new information. Both counsel told the jury that defendant was 

not intoxicated at the time of the incident. It was not reasonably probable that defendant 

would have received a different result at trial had the photograph been properly excluded. 

Therefore, the error in admitting the photographs was harmless. 

IV

Prosecutor’s Comment Regarding Nayeli’s Credibility and the Police Report

Defendant next contends the prosecutor committed misconduct by impermissibly 

referring to the police report and by vouching for Nayeli’s credibility. We disagree. 

5

 People v. Watson (1956) 46 Cal.2d 818.
22

A. Procedural Background

During closing argument, the prosecutor stated: “Now just briefly, some general 

rules, and this was, again, touched on by the Judge in his instructions. We talked about 

some of this in voir dire, your duties as a juror. You can consider only what’s inside that 

circle. [¶] We get this question a lot, oh, can we see the police report? You can’t. It is a 

rule, you cannot look at the police report, otherwise my job would be pretty easy. I can[6]

just mark them and hand them over to you guys. Don’t ask for them. You are not going 

to get a copy of the police report.” 

During defendant’s closing argument, defense counsel attacked Nayeli’s 

credibility: “[Nayeli] should be hypervigilant, and she was. She was well aware of her 

surroundings, okay? [¶] That does not mean that she’s right about what she saw. And in 

fact, her reaction to what she saw proves that she assumed the worst, and it makes perfect 

sense that she saw what she thought she was going to see. So remember, that with this 

young lady, and we are talking about bias, we are talking about witness bias, and I’m not 

saying she is a bad person. It just means she is not reliable.” 

In rebuttal, the prosecutor stated: “You heard from [Nayeli]. [Defense counsel] 

can sit up here and come up with an alternative reality of the facts, but you guys can’t. 

You are stuck with the facts you heard. Now, either you believe [Nayeli] or you believe 

she is lying about this, and she has absolutely no reason to lie.” 

B. Forfeiture and Ineffective Assistance of Counsel

Defendant failed to object to these statements and request an admonition, but he 

argues he did not forfeit the arguments on appeal because no admonishment could have 

cured the harm caused by the prosecutor’s comments. He does not explain how an 

admonishment to the jury could not have cured any harm done by the prosecutor’s 

6

 We presume the prosecutor intended to say “cannot.” 
23

allegedly improper comments regarding any police reports or his alleged bolstering of 

Nayeli’s credibility. As we will discuss post, we conclude the prosecutor did not commit 

prejudicial misconduct, and therefore “it follows there was no pervasive misconduct that 

otherwise excused defendant’s failure to object to the individual instances of misconduct 

of which he now complains.” (People v. Riggs (2008) 44 Cal.4th 248, 298.) 

Anticipating this conclusion, defendant contends his trial counsel’s failure to 

object to the prosecutor’s argument constituted ineffective assistance of counsel. “ ‘A 

defendant whose counsel did not object at trial to alleged prosecutorial misconduct can 

argue on appeal that counsel’s inaction violated the defendant’s constitutional right to the 

effective assistance of counsel.’ [Citation.]” (People v. Centeno (2014) 60 Cal.4th 659, 

674.) “ ‘To establish ineffective assistance of counsel, a defendant must show that (1) 

counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms, and (2) counsel’s deficient performance was prejudicial, 

i.e., there is a reasonable probability that, but for counsel’s failings, the result would have 

been more favorable to the defendant.’ [Citation.]” (People v. Johnson (2015) 60 Cal.4th 

966, 979-980.) “An attorney may choose not to object for many reasons, and the failure 

to object rarely establishes ineffectiveness of counsel. [Citation.]” (People v. Kelly

(1992) 1 Cal.4th 495, 540.) 

C. Comment Regarding the Police Report

Defendant contends the prosecutor’s comment about not being able to share the 

police report improperly implied that the police report contained inculpatory evidence 

that supported a finding of defendant’s guilt. He contends the impropriety was 

compounded by the prosecutor’s implication that but for a legal rule the jurors would 

have access to the police report. 

It is improper for a prosecutor to suggest that additional inculpatory evidence was 

not presented at trial because of legal rules. (Berger v. United States (1935) 295 U.S. 78, 

86-88.) In Berger, the prosecutor stated that procedural rules prevented the prosecutor 
24

from eliciting testimony that a witness knew the defendant. (Ibid.) “The jury was thus 

invited to conclude that the witness . . . knew [defendant] well but pretended otherwise; 

and that this was within the personal knowledge of the prosecuting attorney.” (Id. at p. 

88; see also State v. Leon (Ariz. 1997) 945 P.2d 1290, 1292-1293 [improper for 

prosecutor to imply police report contained information “the Judge makes various rulings 

on” and suggesting the police report included evidence of other bad acts].) 

Here, we do not interpret the prosecutor’s comment about the police report to 

imply the existence of additional inculpatory evidence being withheld from the jury due 

to procedural rules. Rather, the prosecutor’s comments appear intended to convey that he 

would have to do less work in prosecuting a case if he could just mark the police report 

and give it to the jury. While the implication was irrelevant, it was not harmful; we do 

not view that comment as suggesting the police report contained additional inculpatory 

evidence not presented at trial. We conclude defense counsel did not fall below a 

reasonable attorney standard by failing to object to the prosecutor’s statement.

D. Comment on Nayeli’s Credibility

“ ‘Impermissible “vouching” may occur where the prosecutor places the prestige 

of the government behind a witness through personal assurances of the witness’s veracity 

or suggests that information not presented to the jury supports the witness’s testimony.’ 

[Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 257.) But “ ‘[p]rosecutorial 

assurances, based on the record, regarding the apparent honesty or reliability of 

prosecution witnesses, cannot be characterized as improper “vouching,” which usually 

involves an attempt to bolster a witness by reference to facts outside the record.’ 

[Citation.] No impermissible ‘vouching’ occurs where ‘the prosecutor properly relie[s] 

on facts of record and the inferences reasonably drawn therefrom, rather than any 

purported personal knowledge or belief.’ [Citations.]” (Ibid.; see also People v. Boyette 

(2002) 29 Cal.4th 381, 433 [prosecutor may properly argue witness is telling the truth 

based on the circumstances of the case].) 
25

In U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1145-1148, the court 

analyzed a prosecutor’s argument regarding two witnesses. In the first, the prosecutor 

stated: “[Taylor’s] statement about being threatened I don’t believe is truthful, ladies and 

gentlemen.” (Id. at p. 1147.) In the second, the prosecutor stated: “The point, ladies and 

gentlemen, is he told the truth in that handwritten statement that he gave on that morning, 

he told the truth when he came into the Grand Jury under oath, and he was in front of you 

today and told the truth to you.” (Ibid.) The court concluded: “For any prosecutor to 

state his own view that witnesses are credible or not credible, or indeed to say flat outthree times over in rapid succession-that a witness ‘told the truth,’ rather than to invite the 

jury to make all of those determinations based on evidence to which the prosecutor 

points, cannot fairly be labeled as ‘no more than a comment on the evidence that one 

would expect in a hard-fought case such as this,’ or as ‘nothing more than an 

unremarkable comment based upon the evidence,’ or as ‘merely a comment on the 

evidence.’ ” (Id. at p. 1148.) 

We conclude the prosecutor’s comments here are distinguishable from those in 

Weatherspoon. Here, the prosecutor’s comments were comments on the evidence. The 

prosecutor rebutted the defense’s argument that Nayeli was a hypervigilant woman who 

imagined defendant’s criminal conduct because she was in a panic and was carefully 

observing him. The prosecutor reminded the jury that it heard Nayeli’s testimony, and he 

argued (somewhat confusingly but not harmfully) that the defense attorney was asserting 

“an alternative reality of facts.” The prosecutor’s remark about Nayeli’s lack of 

motivation to lie was a reasonable commentary on the circumstances of the case and 

would not have been understood by the jury as the prosecutor’s personal beliefs or his 

knowledge about evidence outside of the record. Because the prosecutor’s comments 
26

were not objectionable, defense counsel did not fall below a reasonable attorney standard 

by failing to object to the prosecutor’s comment.7

DISPOSITION

The judgment is affirmed.

 /s/

Duarte, Acting P.J.

We concur:

 /s/

Hoch, J.

 /s/

Butz, J.*

7

 Defendant contends the cumulative effect of the prosecutor’s various improper 

comments requires reversal. Because we conclude the only error here--the admission of 

the photographs--was harmless, we do not analyze cumulative effect. 

*

 Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by 

the Chief Justice pursuant to article VI, section 6 of the California Constitution.