Carbajal

We have been asked to decide whether defendant Nicolas Limón Carbajal’s conviction for indecent exposure (Pen. Code, § 314, subd. 1) is valid where there is no evidence that anyone actually saw his naked genitals. We conclude it is, based on circumstantial evidence that actual exposure occurred in the presence of other persons. We arrive at this conclusion after determining that visual observation of the exposed genitals is not an element of the offense. Further, we disagree with defendant’s contention that the trial court erred in refusing to give a special instruction defining exposure of one’s person as the display of a person’s naked genitalia. We therefore affirm.

FACTS

On two different occasions in May 2001, Norma Villa Bueno observed that defendant appeared to be masturbating as he sat at a table in a Mexican restaurant where she worked as a cashier. The first time, after eating his food, defendant placed his fist inside his shorts and moved his hand up and down for about 5 to 10 minutes. Three weeks later, defendant entered the restaurant, and, after eating, engaged in similar conduct; only this time, he ejaculated onto the floor beneath the table. The area had…