P. v. Davey 10/13/04 CA1/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A102885

Case Date: 01/19/2005

Preview:Filed 10/13/04

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, v. IRVING LEROY DAVEY, Defendant and Appellant. A102885 (Marin County Super. Ct. No. SC123734)

Appellant pleaded guilty to one count of annoying a child, and four counts of indecent exposure. The four indecent exposure counts arose from two separate incidents, in each of which appellant exposed himself to two children simultaneously. Appellant contends that his sentences on two of the indecent exposure counts should have been stayed, because each incident involved only one criminal act. We agree, and hold as a matter of first impression that under Penal Code section 654, a single act of indecent exposure constitutes only one crime for the purpose of sentencing, regardless of the number of people who witness it. During the pendency of this appeal, the United States Supreme Court decided in Blakely v. Washington (2004) __ U.S. __ [124 S.Ct. 2531] (Blakely) that all facts (other than a prior conviction) allowing a criminal defendant's sentence to be increased beyond an otherwise applicable statutory maximum must be proved to a jury beyond a reasonable doubt. Appellant was sentenced to the aggravated term on his conviction for annoying a child. Having requested supplemental briefs regarding the applicability of Blakely to this

Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part III.

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case, we conclude in the unpublished portion of this opinion that Blakely requires reconsideration of that portion of appellant's sentence as well as the portions affected by the Penal Code section 654 issue. We therefore remand the case to the trial court for resentencing consistent with this opinion. I. FACTS AND PROCEDURAL BACKGROUND On April 7, 2001, appellant masturbated openly in front of two 10-year-old girls who were sitting on a bench eating candy.1 On June 9, he approached a car parked in a grocery store parking lot, and exposed his penis to two girls, aged 10 and 12, who were sitting inside the car. On October 17, he was caught masturbating while looking at a 5year-old girl in a fast food restaurant. On October 8, 2002, appellant was charged by information with the following offenses: for the April 7 incident, two counts (counts one and three) of indecent exposure with a prior indecent exposure conviction (Pen. Code,

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