People v. Elhammali CA2/3 ( 2015 )

Filed 4/9/15 P. v. Elhammali CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B255149
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA072311)
v.
JUSTIN T. ELHAMMALI,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Burt Pines, Judge. Affirmed.
Maria Leftwich, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff and Respondent.
______________________________________________
Defendant Justin Elhammali appeals from his sentence after the trial court found
he had violated his probation by committing a new offense. Elhammali’s counsel filed
an opening brief asking this court independently to examine the entire record under
People v. Wende (1979) 25 Cal.3d 436 (Wende). We have done so, we find no error,
and we therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Elhammali’s Burglary Conviction
In October 2012 the People charged Elhammali with first degree residential
burglary. On October 24, 2012, Elhammali reached a plea agreement with the People.
The People amended their information to allege a second count for second degree
burglary. Elhammali pleaded no contest to that charge. The court placed him on three
years formal felony probation and ordered him to serve 180 days in the county jail and
to obey all laws. The court dismissed, on the People’s motion, the first degree burglary
count.
In May 2013 the court issued a bench warrant after the probation department
notified the court that Elhammali never had reported for probation supervision. In
July Elhammali was arrested on the warrant. On August 29, 2013, Elhammali admitted
a probation violation for failure to report. The court reinstated his probation, released
him with time served, and ordered him to report to his probation officer.
2. Elhammali’s Arrest and Trial for Indecent Exposure
In January 2014, Elhammali was arrested and charged with a violation of Penal
Code section 314, subdivision 1, a misdemeanor. Based on the new arrest, the court
revoked Elhammali’s probation in his felony case. The court ordered that Elhammali’s
probation violation would be handled concurrently with his new misdemeanor.
Elhammali’s case on the indecent exposure charge went to trial in
February 2014. At trial, B. B. and L. H., two high school girls, testified that they had
gone hiking at Point Dume in Malibu on January 15, 2014, around 4:00 p.m. After they
had hiked for about 30 minutes, they encountered a man on the trail. The man was
standing in the middle of the trail with his legs spread so the girls could not pass. The
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man said, “Hey, girls.” Then he said, “Do you want to see something? I have a
surprise,” or “I have something for you. It’s a surprise.” The man then unzipped his
pants, took out his penis, and started to walk toward the girls. H. screamed and both
girls started running in the other direction.
The girls found a park officer, Joel Nunn, and told him what had happened.
(Nunn had heard what he thought was a scream and had started running in that
direction.) The girls told Nunn that the man was wearing red plaid shorts. Nunn called
for another officer, park ranger Joseph Grier, to come stay with the girls and take
a statement. Nunn then went to look for the suspect. Nunn reached an area at the
westernmost point of Point Dume that is supposed to be off-limits to hikers. However,
Nunn testified, people often go there. Nunn found a group of about a dozen people. He
gave them a description of the suspect. Nunn then saw a man wearing red plaid shorts
sitting by himself on the side of the cliff. Nunn told the rest of the hikers to leave the
area.
The man appeared to be pulling at something in front of him. (Nunn later
testified he thought the man was pulling off fingerless gloves he had seen him wearing
earlier on the trail.) Nunn told the man to stop and put his hands up. The man did not
comply. Nunn raised his voice and gave the same instruction. Still, the man did not
comply. Nunn drew his weapon, identified himself as a peace officer, and again
ordered the man to stop and show his hands. The man still did not comply. Instead, he
looked back toward Nunn and went on with what he was doing. Nunn again ordered the
man to stop, put his hands up, and stand up. Finally, the man obeyed.
Nunn took photographs with his iPhone of the man and of items he had with
him -- a hat, sunglasses, and fingerless gloves. Nunn went back to where the girls were
and showed them the photographs. Nunn asked the girls if they recognized the person
in the picture. Nunn told the girls if they did not recognize the man, that was fine; they
should just say so. Both girls said yes, they recognized him: it was the man who had
spoken to them on the trail and displayed his penis. Officers arrested the man,
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defendant Elhammali. Both girls also identified Elhammali at trial as the man who had
exposed himself to them that day.
After deliberating for about an hour, the jurors told the trial court that they were
unable to reach a unanimous verdict. Most of the jurors said further deliberations would
not help. The court declared a mistrial. The jurors reported that their vote had been
seven for guilty and five for not guilty.
3. The Court’s Order Finding Elhammali in Violation of Probation
The trial court found -- based on all the evidence presented at trial -- that the
People had proved by a preponderance of the evidence that Elhammali had violated his
grant of felony probation by violating Penal Code section 314, subdivision 1.
Accordingly, the court terminated Elhammali’s probation and sentenced him to the
midterm of two years for second degree burglary, to be served in the county jail.
Elhammali filed a timely notice of appeal.
DISCUSSION
Elhammali’s counsel on appeal filed a brief asking the court independently to
examine the entire record for any arguable issues under Wende, supra, 25 Cal.3d 436.
Counsel wrote to Elhammali, advising him he could file a supplemental brief with the
court. On February 6, 2015, this court also sent a letter to Elhammali’s last known
address at the Los Angeles County Jail, notifying him that he could submit by brief or
letter any contentions or argument he wished to make. The letter was returned to the
court as undeliverable.
To prove indecent exposure in violation of Penal Code section 314,
subdivision 1, the People were required to establish that “1. [t]he 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. [w]hen 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.” (CALCRIM 1160.) Certainly, the testimony of the two
girls, Officer Nunn, and state park ranger Grier was more than sufficient to prove, by
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a preponderance of the evidence, that Elhammali had violated Penal Code section 314,
subdivision 1. According to the girls, Elhammali blocked their path; said “Hey, girls.
Do you want to see something? I have a surprise”; and then took his penis out of his
pants as he walked toward them. By committing a new offense, Elhammali violated his
felony probation. The trial court was correct in finding Elhammali in violation for
failing to obey all laws, terminating his probation, and sentencing him.
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DISPOSITION
We have reviewed the entire record and find no arguable issues. Accordingly,
the judgment and sentence are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.*
WE CONCUR:
EDMON, P. J.
KITCHING, J.
* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
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