Merkley

Donal M. Merkley (appellant) appeals from a judgment of conviction upon a jury verdict finding him guilty of indecent exposure (Pen. Code, §314) and possession of cocaine (Health & Saf. Code, § 11350). Prior to trial, appellant admitted that he suffered a prior “strike” conviction for lewd or lascivious acts with a child under the age of 14 (§§ 288, 667). He also admitted that he failed to register as a sex offender after that conviction (§ 290, subd. (g)(1)). Appellant contends that the trial court erred in admitting evidence of his prior conviction and that it erroneously instructed the jury pursuant to CALJIC No. 2.03. These contentions are meritorious and require reversal of the indecent exposure conviction.

Facts

The evidence presented to the jury showed that on December 3, 1994, at approximately 4:50 a.m., Angela Stoltman was driving her truck to work in Petaluma. As she approached the intersection of East Washington and Ellis Streets, she observed appellant and made eye contact with him. Appellant, who was wearing a jogging suit, then pulled his shirt up and his pants down, exposing his flaccid penis. Stoltman continued to drive to work. When she arrived at work,…