People v. Rylaarsdam
130 Cal. App. Supp. 3d 1 (1982)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
For a conviction of disorderly conduct based on lewd acts, Penal Code section 647(a) requires the actual presence of a person who may be offended, and the specific intent element is satisfied if the conduct is intended to sexually arouse an observer, not solely the actor.
Facts:
- On July 25, 1979, Sergeant Roger Kelley, an undercover police officer, was investigating vice conditions at an adult bookstore in Pasadena.
- The bookstore contained private, coin-operated booths for viewing sexually explicit motion pictures, with partitions separating them.
- Sergeant Kelley entered booth 19 and observed a three-inch hole in the partition separating his booth from booth 20.
- Rylaarsdam, in booth 20, placed a finger through the hole, wiggling it, then withdrew it, and four to five seconds later, protruded an erect penis through the hole, which Sergeant Kelley found offensive.
- Rylaarsdam, identifying as homosexual, knew the bookstore was a 'cruising place' for homosexuals and believed Sergeant Kelley made eye contact and that Kelley's non-negative response to his finger gesture indicated a positive interest.
- On February 20, 1979, Sergeant Keith D. Johnson, an LAPD vice unit officer, entered a men's restroom at Griffith Park and observed Lohman seated in an open toilet stall with his pants down and hands in his groin area.
- Sergeant Johnson positioned himself at a urinal directly across from Lohman's stall and observed Lohman first rubbing his groin area, then masturbating his erect penis.
- Lohman testified he observed Sergeant Johnson looking frequently at him and admitted fondling his genitals but denied masturbating.
Procedural Posture:
- People v. Rylaarsdam: Rylaarsdam was convicted in the trial court of violating Penal Code section 314 (indecent exposure) and Penal Code section 647, subdivision (a) (lewd and dissolute conduct).
- People v. Rylaarsdam: The trial judge suspended imposition of sentence on both counts and placed Rylaarsdam on probation.
- People v. Rylaarsdam: Rylaarsdam appealed the judgment of conviction on both counts to the Appellate Department of the Superior Court for Los Angeles County.
- People v. Lohman: Lohman was convicted in the trial court of violating Penal Code section 647, subdivision (a).
- People v. Lohman: The trial judge instructed the jury in accordance with the 1979 revision of CALJIC No. 16.400, which included the phrase 'or will be present' regarding a potentially offended person.
- People v. Lohman: The trial court refused to give Lohman's proposed instruction stating there is no violation 'if there are no persons present who may be offended.'
- People v. Lohman: Lohman appealed the judgment of conviction to the Appellate Department of the Superior Court for Los Angeles County.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does Penal Code section 647(a), as interpreted by Pryor v. Municipal Court, require the actual presence of a person who may be offended by lewd or dissolute conduct, and is the specific intent element met if the conduct aims to sexually arouse an observer rather than the actor?
Opinions:
Majority - FOSTER, Acting P. J.
Yes, Penal Code section 647(a) requires the actual presence of a person who may be offended, and the specific intent element is met if the conduct aims to sexually arouse an observer. The court affirmed Rylaarsdam’s conviction, finding sufficient evidence that guiding his penis through the hole constituted a 'touching of the genitals.' The court clarified that the specific intent element of 'sexual arousal, gratification or affront' is met if the act is done for the purpose of the sexual arousal of the viewer, not just the actor, citing People v. Conway. It further upheld that the adult bookstore's viewing booths are 'places open to the public,' as patrons have a right of privacy and do not expect to be subjected to live sexual acts, citing People v. Adult World Bookstore. The court also found sufficient evidence that Rylaarsdam knew or should have known of the presence of a person who might be offended; even if he perceived a 'positive' response to initial overtures, his conduct was 'of a type likely to offend' per Pryor, and this belief did not negate the possibility the observer 'may be offended.' However, the court found Rylaarsdam's probation condition, prohibiting him from frequenting places where homosexuals congregate, unduly restrictive as it would prevent him from participating in lawful social, business, political, and religious activities; a more specific condition to stay away from the premises of the offense was deemed adequate. Regarding Lohman’s case, the court found the trial court's jury instruction erroneous by including 'or will be present' when referring to a person who may be offended. Reviewing Pryor, the court emphasized that the Supreme Court's repeated references to the 'presence of a person who may be offended' were not inadvertent, establishing that the offense requires an actual victim who witnesses the offensive conduct. Despite this error, the court deemed it harmless beyond a reasonable doubt because Sergeant Johnson was undisputedly present and known by Lohman to be present, and Lohman's defense was a denial of the conduct itself, not the absence of an observer. The court also found no error in refusing a jury instruction on officer encouragement due to a lack of evidentiary support.
Analysis:
This case provides critical clarification of California's disorderly conduct statute, Penal Code section 647(a), as previously reinterpreted in Pryor v. Municipal Court. By affirming that the 'presence' element requires an actual observer and not merely a potential future one, the court ensures a higher evidentiary standard for convictions, limiting speculative applications of the law. Furthermore, the ruling that intent to arouse an observer satisfies the specific intent element broadens the statute's applicability, encompassing acts designed to solicit reactions from others. Lastly, the decision on Rylaarsdam's probation condition reinforces the principle that punitive measures must be narrowly tailored and not unduly infringe upon a defendant's fundamental rights to association and participation in lawful activities.
