California Penal Code 647(j) – Invasion of privacy

  1. Introduction

    Subsection (j) is California's criminal invasion of privacy law. It may apply where a person uses a device to invade the privacy of another or engages in video capture. 

  2. Text of the Statute

    “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [

  3. Cases

    Note: Before Jan. 1, 2008, the section that addressed this offense was subdivision (k), so some of the cases below cite § 647(k).

    1. People v. Johnson, 184 Cal.Rptr.3d 850 (Ct. App. 2015)

      • Procedural Posture: Defendant appeals Superior Court convictions on five of twelve counts of misdemeanor disorderly conduct.

      • Law: Cal. Penal Code § 647(j)

      • Facts: Defendant was charged with twelve counts of violating Cal. Penal Code § 647(j)(2) by following women and filming up their skirts without their knowledge or consent. In five instances, the video did not record the women’s faces and defendant argued that in these convictions must be reversed because there was no evidence he filmed “identifiable” persons.

      • Outcome: Judgment was reversed on all five challenged counts due to prejudicial instructional error.

      • Special Notes: The court concluded that, to establish a defendant has filmed an “identifiable person” under 647(j), the prosecutor must prove that it is reasonably probable someone (including the victim herself) could identify or recognize the victim when all of the evidence is considered. Despite reversal of all challenged counts, the court concluded there was sufficient evidence in this case to satisfy the standard.

    2. People v. Allen, No. B250775, 2015 WL 1261360 (Cal. Ct. App. Mar. 18, 2015).

      • Procedural Posture: Defendant Allen was convicted by a jury of one count of committing a lewd and lascivious act upon a child under the age of 14, three misdemeanor counts of unauthorized invasion of privacy, two misdemeanor counts of sexual exploitation of a child, and one count of felony possession of matter depicting a minor engaging in sexual conduct.

      • Law: With regard to the three counts of invasion of privacy, Cal. Penal Code § 647(j)

      • Facts: Defendant’s wife discovered several videos on defendant’s computer showing defendant’s wife and two minors naked and using the restroom. Defendant’s wife testified that the recording device was not visible and was the only individual that testified she had not provided consent to the videotaping. Defendant contended that the prosecution did not present evidence that one of the minors had not consented to the taping.

      • Outcome: The court affirmed the 647(j) conviction stating that a minor cannot give valid consent to being videotaped.

    3. People v. Scholl, No. B250775, 2014 WL 1393113 (Cal. Ct. App. Apr. 10, 2014)

      • Procedural Posture: Defendant was convicted of possession of child pornography and two misdemeanor counts of unauthorized invasion of privacy for surreptitiously videotaping his estranged wife and her daughter while they were using the master bathroom in the home they all shared. On appeal, defendant claimed that his convictions of unauthorized invasion of privacy must be overturned because there was insufficient evidence to show that they occurred within the applicable statute of limitations.

      • Law: With regard to the two counts of invasion of privacy, Cal. Penal Code § 647(j)

      • Facts: Defendant’s ex-wife discovered four videotapes depicting herself and her minor daughter showering and using the bathroom. After executing a search warrant, officers discovered a hole drilled under the sink and an audio visual cable running into a second bathroom used by the defendant. Officers additionally found several more CDs and flash drives containing videos of defendant’s ex-wife and her daughter nude and using the bathroom.

      • Outcome: Both invasion of privacy counts affirmed, as a preponderance of the evidence establishes that defendant filmed in the bathroom during the applicable statute of limitations.

    4. People v. Garcia, No. H031296, 2008 Cal. App. Unpub. LEXIS 718 (Cal. Ct. App. Jan. 29, 2008)

      • Procedural Posture: Defendant convicted of Cal. Penal Code § 647(k)—surreptitious use of camera to view under another person’s clothing—appeals arguing that there was not evidence that the victim had a reasonable belief that her bottom was private since she was wearing a short skirt.

      • Law: Cal. Penal Code §647(k) [now the section about video voyeurism is at (j)—as of Jan. 1, 2008]

      • Facts: Defendant had camera in a low hanging bag and was videotaping women’s private parts if they were wearing skirts. [no publication in this case] Note that the victim was Jane Doe in this case.

      • Outcome: Conviction affirmed.

  4. Practice Pointers

    Pursuant to Cal. Penal Code § 647.8, cyber exploitation images and the equipment that is used to create them in violation of 647(j) is subject to forfeiture.