Tolliver

Defendant appeals his conviction by a jury for felony indecent exposure. (Pen. Code, § 314, subd. 1.) A prior conviction of indecent exposure was charged and proved. He argues that the trial court’s failure to instruct, sua sponte, on lewd and disorderly conduct (Pen. Code, § 647, subd. (a)) as a lesser included offense constitutes reversible error.

On March 18, 1979, at 5:15 p.m., defendant called an Avon sales representative, Ms. H. and requested she come to his house. Ms. H. told defendant that she would not visit his house unless there was a woman present. He then told her that his wife was there, they were just moving in, they had four children and asked Ms. H. if she would like to speak to his wife. Ms. H. went to the house and was met at the front door by defendant who was dressed in a hip-length, brown velour robe and was dripping wet. She was invited inside and sat down while defendant walked down the hall to the bathroom. When he returned, the robe he was wearing was open from the waist down, exposing his genitals to Ms. H. Defendant sat down across from her, spread his legs apart and stared at her in a “scary” manner.

He then told Ms. H. that his wife was…