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Tools to fight online harassment

California: Statutory Criminal Law

Contents

  1. Coercion into Prostitution
  2. California Penal Code § 632 – Eavesdropping
  3. Stalking
  4. Computer Crime
  5. Criminal Threats
  6. Electronic Communication with Intent to Annoy
  7. Extortion
  8. California Penal § 528.5 – Impersonation through Internet or Electronic Means
  9. Intimidation of Witness
  10. California Penal Code 647(i) – Peeking While Loitering
  11. California Penal Code 647(j) – Invasion of privacy
  12. California Penal Code § 647(j)(4) – Cyber Exploitation aka Revenge Porn
  13. California Penal Code §166(a)(4) Violation Of Court Order
  14. California Penal Code § 530.5 – Identity Theft
  15. California Penal Code § 631 – Wiretapping

  1. Coercion into Prostitution

    1. Introduction

      The victim of the nonconsensual publication of intimate photos or videos may press charges against the person who published the material, if it resulted in the victim receiving solicitations for paid sex. Alternatively, this statute may be appropriate in situations where a perpetrator demands sex in exchange for not posting the victim’s intimate images online.

    2. Text of the Statute

      California Penal Code § 266a:

      “Every person who, within this state, takes any person against his or her will and without his or her consent, or with his or her consent procured by fraudulent inducement or misrepresentation, for the purpose of prostitution, as defined in subdivision (b) of Section 647, is punishable by imprisonment in the state prison, and a fine not exceeding two thousand dollars ($2,000).”

    3. Cases

      Research is ongoing.

    4. Practice Pointer

      While the case law does not specifically address whether one solicitation would be enough to constitute coercion into prostitution, it appears likely that it would since neither the statute nor the case law mention a required number of solicitations. Neither the case law nor the California Penal Code mentions that a person must become a “career prostitute” in order for paid sex to be considered prostitution.1 “Prostitution” under Cal. Penal Code § 647(b), means “any lewd act between persons for money or other consideration.”2 Therefore, according to the statute, one act between persons is sufficient to constitute prostitution. Furthermore, § 647(b) provides that either a prostitute or a potential client can engage in solicitation for paid sex. In People v. Mandell, the key case illustrating the use of Cal. Penal Code 266a, the fact that the defendants had induced the victim by fraudulent means to enter into prostitution was seen as an ongoing offense of Section 266a.3 Since the situation of the young woman in Mandell, in which she was forced into prostitution with many men, was viewed as an ongoing violation of 266a, a one-time incident of coerced prostitution would likely be seen as a one-time prosecutable offense.

    1. People v. Mandell, 95 P.2d 704 (Cal. Ct. App. 1939) (a young woman was induced into prostitution by promises from the defendants to find her a job as a waitress). ↩
    2. Cal. Penal Code § 647(b) (West 2011). ↩
    3. See generally Mandell, 95 P.2d at 706-07. ↩
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  2. California Penal Code § 632 – Eavesdropping

    1. Introduction

      A person who records sexual activity without the consent of the parties engaged in the activity may be charged with eavesdropping. Disagreement exists as to whether the recording of sexual activity without accompanying conversation constitutes a “communication” under the statute. Note that a civil remedy is also available for violation of this statute.

    2. Text of the Statute

      Cal. Penal Code § 630 et seq.

      Legislative Finding and Intent--§ 630

      “The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. The Legislature by this chapter intends to protect the right of privacy of the people of this state.

      The Legislature recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques in the investigation of criminal conduct and the apprehension of lawbreakers. Therefore, it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter.”

      Criminal Recording of Confidential Information—§ 632

      “(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”

    3. Cases

      1. People v. Gibbons , 263 Cal. Rptr. 905 (Cal. Ct. App. 1989).

        • Procedural Posture: Defendant appealed conviction for violation of eavesdropping statute, arguing that videotaping sexual activity is not prohibited by the statute.

        • Law: Cal. Penal Code §§ 630 and 632

        • Facts: Defendant videotaped three sexual encounters he had with women without first obtaining their consent. Women were unaware of the tapes until they were notified of their existence by the police.

        • Outcome: The court held that the statute prohibited recording of sexual relations and that interpreted on its face, the statute gave defendant fair notice that the recording of sexual relations was prohibited.1 The court recognized sexual acts as confidential communications: “Consistent with the express declaration of intent [in § 630] and in the absence of any express statutory limitations [unlike federal wiretapping provisions], we find that ‘communication’ as used in the privacy act is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto. If the act covers eavesdropping on or recording of a telephone call, it surely covers the nonconsensual recording of the most intimate and private form of communication between two people [sex].”2 Furthermore, the court notes “[t]hat sexual relations is a form of communication, be it communication of love, simple affection or, simply of oneself, [which] cannot readily be disputed.”3

        • Contrary case law: Two cases have rejected the broad interpretation of the eavesdropping statute adopted in Gibbons : 1) In People v. Drennan , the court found that § 632 prohibits only “the recordings of the contents of audible or symbol-based communications.4 In Drennan , a superintendent had installed a video camera that took periodic photographs without sound, of a principal’s office.5 2) People v. Zuber , discussed below.

      2. People v. Zuber , No. C032200, 2002 Westlaw 169660 (Cal. Ct. App. Feb. 4, 2002).

        • Procedural Posture: Defendant appealed jury conviction of electronically recording a confidential communication without the other person’s knowledge or consent.

        • Law: Cal. Penal Code § 632; [Also rape charges at trial court, but jury did not convict of rape]

        • Facts: After defendant was accused of rape, the police searched his home and found a videotape of a sexual encounter between defendant and victim, as well as nude photographs of the victim. The victim testified that at the time of the incident, she was intoxicated and unaware of being filmed/photographed. She also maintained that she had not given defendant permission to film/photograph her. Witnesses testified that the defendant had said he “wasn’t really happy with [the victim]” and that he might mail the photos “to her or mail [them] to [her employer] and embarrass her.” Defendant also showed the video to another witness.6

        • Outcome: The court affirmed the conviction, but found that “[f]ollowing the reasoning of Drennan , we conclude that sexual intercourse, without any accompanying conversation, is not a confidential communication within the meaning of section 632.”7 However, the video in this case did include conversation of an extremely personal nature (victim’s inability to achieve an orgasm, insecurity about her body image, crying, and expressions of inadequacy).

    4. Practice Pointer

      A victim of eavesdropping may also bring a civil action:

      Cal. Penal Code § 637.2—Civil action by person injured; injunction

      “(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

      (1) Five thousand dollars ($5,000).

      (2) Three times the amount of actual damages, if any, sustained by the plaintiff.

      (b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

      (c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.”

    1. People v. Gibbons, 263 Cal. Rptr. 905, 909 (Cal. Ct. App. 1989). ↩
    2. Id. ↩
    3. Id. ↩
    4. People v. Drennan, 101 Cal. Rptr. 2d 584, 589 (Cal. Ct. App. 2002). ↩
    5. Id. at 585 ↩
    6. People v. Zuber, No. C032200, 2002 Westlaw 169660, *1 (Cal. Ct. App. Feb. 4, 2002). ↩
    7. Id. at *5. ↩
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  3. Stalking

    1. Introduction

      A person who published private intimate photos/videos of another with the intention to harass that person and who also credibly threatened that person, or who was under a restraining order, may be charged with stalking under the Penal Code.

    2. Text of the Statute

      Cal. Penal Code § 646.9:

      “(a) Any person who willfully, maliciously, and repeatedly follows or willfully maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking, punishable by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison.

      (b) Any person who violates subdivision (a) when there is a temporary restraining order, injunction, or any other court order in effect prohibiting the behavior described in subdivision (a) against the same party, shall be punished by imprisonment in the state prison for two, three, or four years.

      (c) (1) Every person who, after having been convicted of a felony under Section 273.5, 273.6, or 422, commits a violation of subdivision (a) shall be punished by imprisonment in a county jail for not more than one year, or by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment, or by imprisonment in the state prison for two, three, or five years.

      (2) Every person who, after having been convicted of a felony under subdivision (a), commits a violation of this section shall be punished by imprisonment in the state prison for two, three, or five years.

      (d) In addition to the penalties provided in this section, the sentencing court may order a person convicted of a felony under this section to register as a sex offender pursuant to Section 290.006.

      (e) For the purposes of this section, "harasses" means engages in a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose.

      (f) For the purposes of this section, "course of conduct" means two or more acts occurring over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of "course of conduct."

      (g) For the purposes of this section, "credible threat" means a verbal or written threat, including that performed through the use of an electronic communication device, or a threat implied by a pattern of conduct or a combination of verbal, written, or electronically communicated statements and conduct, made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family, and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. The present incarceration of a person making the threat shall not be a bar to prosecution under this section. Constitutionally protected activity is not included within the meaning of "credible threat."

      (h) For purposes of this section, the term "electronic communication device" includes, but is not limited to, telephones, cellular phones, computers, video recorders, fax machines, or pagers. "Electronic communication" has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

      […]

      (l) For purposes of this section, "immediate family" means any spouse, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.”

    3. Cases

      1. People v. Buckley, No. D066227, 2015 WL 6164035 (Cal. Ct. App. Oct. 21, 2015).

        • Procedural Posture: A jury convicted defend of simple stalking of victim 1 (count 1) and two counts of stalking victim 1 with a court order in effect (counts 2 and 3). It also convicted defendant of one count of simple stalking of victim 2 (count 6) but found defendant not guilty of another count of simple stalking of victim 2 (count 4) and of stalking victim 2 with a court order in effect (count 5). Defendant appealed his convictions on several grounds, including that the trial court erroneously sentenced him under both Cal. Penal Code § 646.9(a) and Cal. Penal Code § 646.9(b) for his convictions involving victim 1, despite the fact that the latter provision relates to a penalty and not a substantive crime.

        • Law: Cal. Penal Code § 646.9

        • Facts: Defendant and victim 1 dated from June 2010 through November 2010, when victim 1 ended the relationship. Following the breakup, defendant repeatedly called and texted victim 1, sent photographs of dead people, accused victim 1 of killing her father, destroyed victim 1’s belongings, threatened to commit suicide. On November 15, 2010, victim 1 obtained a temporary retraining order against defendant; however, defendant continued to contact victim 1 and sent a nude photograph of victim 1 to her mother. Victim 1 also feared that defendant would send nude photos of her to her boss and coworkers. On December 1, 2010, a 5-year permanent restraining order was issued preventing defendant from contacting victim 1; however, defendant continued to contact and threaten victim 1.

        • Defendant and victim 2 had a three-week intimate relationship during September 2012, during which time victim 2 allowed defendant to take nude photographs of her. After victim 2 broke off the relationship, defendant got upset and repeatedly attempted to contact her. In early October 2012, victim 2 obtained a temporary restraining order against defendant and, in late October 2012, victim 2 obtained a permanent restraining order against defendant. Despite the restraining orders, defendant continued to contact victim 2, waited outside of victim 2’s home, threatened victim 2, send nude photos of victim 2 to her friends, and posted nude photos of victim 2 on Facebook.

        • Outcome: The court vacated the convictions on counts 1 and 2 and otherwise affirmed the judgment. The court found that the record established one continuous criminal act of stalking against victim 1 from November 2010 through September 2012—and not three separate counts—because there were no significant breaks between defendant’s conduct.

      2. People v. Moreno, No. C072902, 2014 WL 6809702 (Cal. Ct. App. Dec. 3, 2014).

        • Procedural Posture: Defendant was required to register as a sex offender and convicted of nineteen felonies and two misdemeanors, including burglary, wiretapping, unauthorized computer access, and stalking. On appeal, defendant contends there was insufficient evidence to support two counts of wiretapping and that he was entitled to a jury trial because the residency requirements of sex offender registration impose additional punishments.

        • Law: Stalking (Cal. Penal Code § 646.9); burglary (Cal. Penal Code § 459*); wiretapping (Cal. Penal Code § 631(a)); unauthorized computer access (Cal. Penal Code § 502(c)(4))

        • Facts: Defendant and victim dated from April 2007 until January 2010 and maintained a cordial relationship. Within two months, defendant and victim began dating again. In March 2010, defendant visited victim’s home and installed two spyware programs on her computer. The first program recorded computer activity, including email, chats and website visits. The second program emailed defendant regular activity reports. On July 16, defendant and victim broke up. Following the breakup, defendant broke into victim’s apartment numerous times, stole various items from victim’s home (including jewelry, concert tickets, keepsakes and used condoms), threatened to publish nude photos of victim online, installed spyware on victim’s computer, installed hidden cameras in victim’s home, photographed victim through her windows, and disabled victim’s alarm system. After searching defendant’s home and computer, police discovered a computer file labeled “stalking,” dated images of items stolen from  victim’s home, detailed written accounts on victim’s sexual activity, a lock-picking kit, various items stolen from victim's home, intercepted chats and emails from victim, and more than 40 hidden camera videos from victim’s home.

        • Outcome: The trial court judgment was affirmed.

      3. People v. Cavazos, No. A124274, 2010 Cal. App. Unpub. LEXIS 3420 (Cal. Ct. App. May 11, 2010).

        • Procedural Posture: Jury convicted defendant for stalking his ex-girlfriend and he appealed.

        • Law: Cal. Penal Code § 646.9(a) (stalking) and 647(k)(3) (illegal videotaping)

        • Facts: After victim broke up with defendant, he called her constantly, began making threats to her and her family and showed up at her apartment unexpectedly. He also showed her three videos he had recorded on his cell phone of them having consensual sex. He told victim that if she did not have sex with him, he would post the videos on the internet or show them to her family. Defendant continued to use the videos as a way to force victim to meet with him by telling her he would erase the videos if she complied with his requests. Defendant would sexually assault victim at the meetings. The victim went to the police and reported that defendant was making harassing phone calls. She obtained a restraining order, but did not report the rape, kidnap or false imprisonment until a few months later (the jury failed to convict defendant on those charges).

        • Outcome: Affirmed. The court failed to find an abuse of discretion by the trial court or any undue prejudice. “Jane Doe’s testimony establishing [the stalking] was corroborated by the recordings of appellant’s cell phone messages, and appellant’s admission that he slapped her, repeatedly called her in violation of the restraining order, and threatened to harm her."

        • Note: Ex-girlfriend referred to as “Jane Doe.”

      4. People v. Muhammad, No. A104207, 2005 Cal. App. Unpub. LEXIS 1469 (Cal. Ct. App. Feb. 22, 2005).

        • Procedural Posture: Appellant appealed conviction for stalking.

        • Law: Cal. Penal Code § 646.9(a)

        • Facts: After breaking up, appellant left victim telephone messages threatening her car and her life. Victim reported these threats to the police. The victim and appellant subsequently resumed their romantic relationship. After they broke up a second time, appellant showed up at victim's work place to threaten her and later broke into her apartment and vandalized it. Victim reported the vandalism to the police. Appellant then began calling victim 50 times a day and once again made threats to her life. Appellant returned to victim's work place, this time with various photos of the partially nude victim. Appellant dropped these photos onto victim's coworker’s desk requesting that the coworker give the photos to the victim as she had left them at appellant's home. Victim obtained restraining order against appellant and appellant was finally arrested.

        • Outcome: Affirmed. No discussion of stalking since the appellant did not appeal that conviction. Instead, he appealed the criminal threats conviction and jury instruction regarding the truth of the testimony of the victim.

        • Note: Victim’s initials were used.

      5. People v. Abber, No. B156617, 2003 Cal. App. Unpub. LEXIS 4695 (Cal. Ct. App. May 13, 2003).

        • Procedural Posture: Appellant was convicted of stalking his ex-girlfriend and placed on probation. Appellant appealed on the grounds that the stalking statute is unconstitutionally vague.

        • Law: Cal. Penal Code § 646.9(a)

        • Facts: After the victim, Heather Tulloch, ended her relationship with appellant, the appellant began harassing her by following her around and leaving abusive messages for her to ensure that she knew she was being followed. She obtained a temporary restraining order against the appellant. They began dating again and had an “off and on” relationship. During their “on” period, she allowed him to photograph her nude and videotape their sexual relations. After they broke up again, he resumed harassing her and threatened to show the nude photos “all over town and to [her] friends and family.” He started called her as often as 20 time per day at her work and even posed as a patient at her work. He also followed her to work. One of Tulloch’s coworkers called the Sheriff’s Department. She said she was afraid of obtaining a restraining order, but eventually did. A Deputy went to Abber’s home to ask him his side of the story. Abber became belligerent and was arrested. Tulloch obtained a permanent restraining order against Abber. After the Sheriff’s Department found videotapes of Tulloch at Abber’s home, he was charged with stalking Tulloch. Tulloch then resumed her relationship with Abber and testified that they were in love at the trial. She was unable to get the restraining order lifted.

        • Outcome: Affirmed. The court disagreed with appellant’s challenge of the stalking statute’s constitutionality, basing its finding on People v. Heilman .1 “Constitutionally protected activity is not included within the meaning of ‘course of conduct’ in the statute.” In Heilman , the defendant challenged the statute by claiming that the term “repeatedly” as used in the statute was unconstitutionally vague. The Heilman court concluded that the term “repeatedly” is “a word of such common understanding that its meaning is not vague,” nor does it create the danger of arbitrariness or discrimination in the enforcement of the law. The Heilman court further noted that “The intent element of section 646.9 ensures law enforcement officials do not have boundless discretion in defining the crime.”

    1. People v. Heilman, 30 Cal. Rptr. 2d 422 (Cal. Ct. App. 1994). ↩
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  4. Computer Crime

    1. Introduction

      Pursuant to the Cal. Penal Code, it is a crime for a person to access another’s computer or computer network without permission; copy, take or delete data from another’s computer; or to use another’s computer services without permission. If a harasser takes intimate material from a victim’s computer without permission or if the harasser uses a victim's email account, without permission, to send the intimate images, then the harasser may be prosecuted for computer crime under Cal. Penal Code § 502.

    2. Text of the Statute

      “(a) It is the intent of the Legislature in enacting this section to expand the degree of protection afforded to individuals, businesses, and governmental agencies from tampering, interference, damage, and unauthorized access to lawfully created computer data and computer systems. The Legislature finds and declares that the proliferation of computer technology has resulted in a concomitant proliferation of computer crime and other forms of unauthorized access to computers, computer systems, and computer data […] .

      [. . .]

      (c) Except as provided in subdivision (h), any person who commits any of the following acts is guilty of a public offense:

      (1) Knowingly accesses and without permission alters, damages, deletes, destroys, or otherwise uses any data, computer, computer system, or computer network in order to either (A) devise or execute any scheme or artifice to defraud, deceive, or extort, or (B) wrongfully control or obtain money, property, or data.

      (2) Knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.

      (3) Knowingly and without permission uses or causes to be used computer services.

      (4) Knowingly accesses and without permission adds, alters, damages, deletes, or destroys any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network.

      [. . .]

      (6) Knowingly and without permission provides or assists in providing a means of accessing a computer, computer system, or computer network in violation of this section.

      (7) Knowingly and without permission accesses or causes to be accessed any computer, computer system, or computer network.

      [. . .]

      (9) Knowingly and without permission uses the Internet domain name of another individual, corporation, or entity in connection with the sending of one or more electronic mail messages, and thereby damages or causes damage to a computer, computer system, or computer network[…].

      (e)(1) In addition to any other civil remedy available, the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss by reason of a violation of any of the provisions of subdivision (c) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief. Compensatory damages shall include any expenditure reasonably and necessarily incurred by the owner or lessee to verify that a computer system, computer network, computer program, or data was or was not altered, damaged, or deleted by the access. For the purposes of actions authorized by this subdivision, the conduct of an unemancipated minor shall be imputed to the parent or legal guardian having control or custody of the minor, pursuant to the provisions of Section 1714.1 of the Civil Code.

      (2) In any action brought pursuant to this subdivision the court may award reasonable attorney’s fees.

      [. . .]

      (4) In any action brought pursuant to this subdivision for a willful violation of the provisions of subdivision (c), where it is proved by clear and convincing evidence that a defendant has been guilty of oppression, fraud, or malice as defined in subdivision (c) of Section 3294 of the Civil Code, the court may additionally award punitive or exemplary damages."1

    3. Cases

      1. People v. Evens, No. 2486390 (Cal. Super. Ct. June 10, 2015).

        • Procedural Posture: Complaint filed in San Francisco County Superior Court on June 10, 2015 alleging that defendant committed eleven counts of unauthorized access to a computer in violation of Cal. Penal Code § 502(c)(4).

        • Law: Unauthorized computer access (Cal. Penal Code § 502(c)(4)

        • Facts: Defendant allegedly accessed more than 300 email and Facebook accounts without permission. Defendant would trick users into providing a recovery code for their Gmail accounts and then use the Gmail account to gain access to the associated Facebook account. Once in the Facebook account, defendant would contact the victim's friends and attempt to obtain their Gmail recovery codes and continue the cycle of compromising accounts. While in possession of the accounts, defendant would steal nude images and other personal information, which was then sold to be posted online.

        • Outcome: Defendant pleaded no contest to the charges and was sentenced to three years in prison.

      2. People v. Moreno, No. C072902, 2014 WL 6809702 (Cal. Ct. App. Dec. 3, 2014).

        • Procedural Posture: Defendant was required to register as a sex offender and convicted of nineteen felonies and two misdemeanors, including burglary, wiretapping, unauthorized computer access, and stalking. On appeal, defendant contends there was insufficient evidence to support two counts of wiretapping and that he was entitled to a jury trial because the residency requirements of sex offender registration impose additional punishments.

        • Law: Unauthorized computer access (Cal. Penal Code § 502(c)(4)); stalking (Cal. Penal Code § 646.9); burglary (Cal. Penal Code § 459*); wiretapping (Cal. Penal Code § 631(a))

        • Facts: Defendant and victim dated from April 2007 until January 2010 and maintained a cordial relationship. Within two months on the January 2010 breakup, defendant and victim began dating again. In March 2010, defendant visited victim’s home and installed two spyware programs on her computer. The first program recorded computer activity, including email, chats and website visits. The second program emailed defendant regular activity reports. On July 16, defendant and victim broke up. Following the breakup, defendant broke into victim’s apartment numerous times, stole various items from victim’s home (including jewelry, concert tickets, keepsakes and used condoms), threatened to publish nude photos of victim online, installed spyware on victim’s computer, installed hidden cameras in victim’s home, photographed victim through her windows, and disabled victim’s alarm system. After searching defendant’s home and computer, police discovered a computer file labeled “stalking,” dated images of items stolen from victim’s home, detailed written accounts on victim’s sexual activity, a lock-picking kit, various items stolen from victim's home, intercepted chats and emails from victim, and more than 40 hidden camera videos from victim’s home.

        • Outcome: The trial court judgment was affirmed, including the three unauthorized computer access counts related to defendant’s installation of spyware on victim’s computer.

    4. Practice Pointer

      Cal. Penal Code § 502 appears to be the state law equivalent of the federal Computer Fraud and Abuse Act (18 U.S.C. § 1030).

    1. Cal. Penal Code § 502 (Deering 2011). ↩
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  5. Criminal Threats

    1. Introduction

      A person may be charged with criminal threats if s/he posts an intimate video or photo online and includes a threat to cause death or great bodily injury.

    2. Text of the Statute

      Cal. Penal Code § 422

      “Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

      For the purposes of this section, “immediate family” means any spouse, whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

      ‘Electronic communication device’ includes, but is not limited to, telephones, cellular telephones, computers, video recorders, fax machines, or pagers. ‘Electronic communication’ has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.”

    3. Cases

      1. People v. Graven , 2d Crim. No. B202905, 2009 Westlaw 401202 (Cal. Ct. App. Feb. 19, 2009).

        • Procedural Posture: Defendant appealed jury conviction of five counts, including one count of making a criminal threat.

        • Law: Cal. Penal Code § 422 (criminal threat); § 273.6(a) and (d) (disobeying domestic relations court order); § 273.5 (inflicting corporal injury on a cohabitant); and § 136.1 (attempting to dissuade a witness)

        • Facts: The evidence introduced against the defendant included a phone message in which he informed his ex-girlfriend that he had sent “personal pictures” of her to her family and friends and posted them on the internet.1 Although this message was introduced into evidence, the court focused on a different phone message as the only basis for the criminal threat conviction in which defendant told ex-girlfriend “you better hope that they get me before I get to you or your daughter because . . . one of you’s going to die."2

        • Outcome: Part of the jail term imposed on defendant was stayed, but otherwise, all convictions were confirmed.

    1. People v. Graven, 2d Crim.  No. B202905, 2009 Westlaw 401202, at *1 (Cal. Ct. App. Feb. 19, 2009). ↩
    2. Id. at *3. ↩
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  6. Electronic Communication with Intent to Annoy

    1. Introduction

      If a person repeatedly contacts another and threatens to post that other person's sexual photos/videos online or provides links to sexual photos/videos that have already been posted, s/he may be charged under this statute.

    2. Text of the Statute

      Cal. Penal Code § 653m

      “(a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

      (b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

      (c) Any offense committed by use of a telephone may be deemed to have been committed when and where the telephone call or calls were made or received. Any offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient.

      (d) Subdivision (a) or (b) is violated when the person acting with intent to annoy makes a telephone call or contact by means of an electronic communication device requesting a return call and performs the acts prohibited under subdivision (a) or (b) upon receiving the return call.

      (e) Subdivision (a) or (b) is violated when a person knowingly permits any telephone or electronic communication under the person's control to be used for the purposes prohibited by those subdivisions.

      (f) If probation is granted, or the execution or imposition of sentence is suspended, for any person convicted under this section, the court may order as a condition of probation that the person participate in counseling.

      (g) For purposes of this section, the term “electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. “Electronic communication device” also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.”

    3. Cases

      Research is ongoing.

    4. Practice Pointer

      The statute governing a restraining order under the Domestic Violence Prevention Act references this section of the Penal Code.1

    1. See Cal. Fam. Code § 6320. ↩
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  7. Extortion

    1. Introduction

      A person who publishes or threatens to publish intimate photos or videos of another with the intention of forcing the victim into prescribed conduct the victim would not have otherwise engaged in may be charged with extortion.

    2. Text of the Statute

      Cal. Penal Code §§ 518-19:

      § 518. "Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."

      § 519. Fear, such as will constitute extortion, may be induced by a threat, either:

      1. To do an unlawful injury to the person or property of the individual threatened or of a third person; or,

      2. To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,

      3. To expose, or to impute to him or them any deformity, disgrace or crime; or,

      4. To expose any secret affecting him or them.”

    3. Cases

      1. People v. Meyering, No. CR169566 (Cal. Super. Ct. June 6, 2014).

        • Procedural Posture: Complaint filed in Napa County Superior Court on June 6, 2014 alleging that defendant committed one count of extortion, three counts of attempted extortion and one count of conspiracy related to the operation of WinByState.com and Takedownhammer.info.

        • Law: Extortion (Cal. Penal Code § 520); Attempted Extortion (Cal. Penal Code § 524); Conspiracy (Cal. Penal Code § 182)

        • Facts: Defendant operated the online forum WinByState.com, which encouraged users to post and trade nude images of "your ex-girlfriend, your current girlfriend, or any other girl that you might know." These images (known as "wins") were categorized by city and state and sometimes would include the name of the individual in the photos. Defendant also operated Takedownhammer.info, which would charge individuals $250 to have their images removed from WinByState.com.

        • Outcome: Defendant pleaded no contest to the charges and was sentenced to three years in prison.

      2. People v. Bollaert, No. CD252338 (Cal. Super. Ct. Dec. 10, 2013).

        • Procedural Posture: Complaint filed in San Diego Superior Court on December 10, 2013 alleging that defendant committed one count of conspiracy, two counts of extortion and twenty-eight counts of identity theft related to the operation of ugotposted.com and changemyreputation.com.

        • Law: Extortion (Cal. Penal Code § 520); Cal. Penal Code § 530.5(a); Conspiracy (Cal. Penal Code § 182)

        • Facts: Defendant operated the website ugotposted.com, which posted nude photographs of individuals accompanied by personally identifying information (typically including name, location, age and Facebook profile) without consent. Between December 2, 2012 and September 17, 2013, over ten thousand such photographs were published to ugotposted.com. During this period, defendant received numerous messages from individuals requesting that their information be removed from ugotposted.com and that the postings resulted in continuous harassment and detrimentally affected their professional and familial relationships. Defendant would respond to these requests from an email account tied to the changemyreputation.com domain. Changemyreputation.com was a separate site operated by defendant that would allow individuals to have their photos and personal information removed from ugotposted.com for a fee between $250 and $350.

        • Outcome: Defendant was found guilty on six counts of extortion and twenty-one counts of identity theft and sentenced to eighteen years in prison.

      3. Limandri v. Wildman, Harrold, Allen & Dixon, LLP, No. 2013 WL 2451322 (Cal. Ct. App. June 6, 2013)

        • Procedural Posture: Appeals from judgments of the lower court stemming from litigation bought by Attorney Charles LiMandri, based on his allegations that defendants improperly revealed to the media private matters encompassed by two confidentiality agreements the parties signed while settling litigation between his client, former Miss California USA, Carrie Prejean, and the defendants, the pageant’s executive directors.

        • Law: Breach of contract/promissory estoppel.1

        • Facts: When Prejean was a contestant in the Miss USA pageant in April 2009, she made statements about how she believes in traditional marriage, and did not support same-sex marriage. After she made her statements, defendants, the pageant executive directors, made several statements about Prejean’s views, and one of them resigned when Donald Trump refused to strip Prejean of her crown because of her statements. Prejean began negotiations with a publisher to write a book about her experience as Miss California, and in June 2009, she was abruptly terminated. Thereafter, with her attorney, plaintiff LiMandri, she sued the defendants for defamation, public disclosure of private facts, religious discrimination and emotional distress. One of the defendants cross-complained for breach of contract, claiming that Prejean had violated her contractual obligation to abide by high ethical and moral standards, her promise that she has never been photographed in a lewd, compromising or sexually suggestive manner, her duty to appear at Miss California events, and her promise to repay a loan. The parties settled the litigation in November 2009, and all parties (including attorneys) signed confidentiality provisions, which included a promise that any compromising material would be destroyed, and that Prejean or her attorney could seek damages for any violation of the non-disclosure.2 After the settlement, however, TMZ leaked a story about a home-made sex tape that defendants had presented during the settlement discussions to jettison the deal. The only people who had seen or were aware of the video had been at the settlement. Among other things, LiMandri asserted that the defendants’ lawyers’ conduct during settlement negotiations was extortionate because they had intentionally deceived he and his client about their agreement to keep the tape secret.

        • Outcome: The court affirmed the judgments, and also specifically determined that the defendants’ disclosure during mediation that they had a sex tape showing Prejean had breached her contract was not extortionate. The court explained: “It was not extortionate for defendants to disclose during mediation that they possessed evidence produced by subpoena that tended to prove the allegations in the cross-complaint regarding Prejean’s breach of contract. A factual dispute exists with respect to the Law Firm’s alleged deceit about maintaining confidentiality. Because a crime was not shown to have been committed as a matter of law, LiMandri’s claim of fraudulent inducement falls within the scope of section 426.16.”3 The court also found that LiMandri’s fraudulent inducement claim failed because misrepresentations made during settlement are absolutely privileged.

      4. People v. Power, 70 Cal. Rptr. 3d 799 (Cal. Ct. App. 2008).

        • Procedural Posture: Defendant was found guilty of extortion and appealed.

        • Law: Cal. Penal Code §518

        • Facts: Victim had sex against her will with defendant after receiving anonymous letters threatening the safety of her family. Victim followed the letters' demands and allowed the filming of her sexual encounters with defendant. Defendant convinced victim that the letters were sent by a coworker. The defendant told victim that after viewing each video, coworker would return the video to defendant. Defendant would then show victim a part of the video and he would destroy it in her presence. At one point, victim was forced to pass up a promotion because she refused to pay $5,000 or have sex in a public place with defendant. Victim finally contacted the police and the police immediately suspected that the defendant was behind the entire set up.

        • Outcome: Affirmed conviction. The court concluded enough evidence existed to prove that the victim was induced to comply with defendant’s requests out of fear for the safety of her husband and children.

        • Note: Victim referred to as “Jane Doe.”

      5. People v. Peniston, 51 Cal. Rptr. 744 (Cal. Ct. App. Dist 1966).

        • Procedural Posture: Defendant was convicted by the trial court for extortion and appealed.

        • Law: Cal. Penal Code §§ 518 and 519.

        • Facts: After the defendant and victim met, she sent him partially nude photographs of herself and eventually began a relationship with him, which ended after he left for the Far East. While defendant was out of the country, victim married another man. When defendant returned to the U.S., he demanded victim give him $400 or he would show the partially nude photos she had sent him to her husband and parents. Victim gave defendant the money and asked him to return the photographs to her. He subsequently demanded $10,000 for the photos, but eventually settled for $1,000. The victim informed police about this arrangement, and the police arrested defendant when he and the victim met up to conduct the exchange.

        • Outcome: Affirmed. Victim “feared that disclosure of the pictures to [her family] might lead to revocation of probation [she had been on probation for prostitution] and the loss of her children.” The court considered this sufficient evidence of a secret within the meaning of § 519. Based on the evidence, it was reasonable for the trier of fact to infer that the victim acted under fear of disclosure of a secret to her family.

    4. Practice Pointer

      Recent case law indicates that the California Penal Code also gives rise to a civil cause of action for extortion.4 To bring a claim for the tort of extortion, the plaintiff must demonstrate one of the four elements listed in Cal. Penal Code, Section 519, and also establish injury and causation. In a case of attempted extortion, the plaintiff must show that “(1) the [defendant] sent or delivered to [the plaintiff] written correspondence; (2) that this writing expressed or implied a threat listed in section 519; (3) the [defendant] intended to extort money or property from [the plaintiff]; (4) the plaintiff suffered harm; and (5) the harm was caused by the [defendant].”5

      Extortion is not a constitutionally protected form of speech.6

      A recent criminal appeal does not deal directly with extortion, but refers to it in a context that would be pertinent to a WMC victim. On a defendant’s appeal from another criminal case centering on allegations that defendant, a former teacher, was guilty of unlawful intercourse with a minor—one of her students—the court considered whether the trial court erred in admitting evidence of previous extortion attempts relating to her alleged lawful intercourse with two other former students when they were over 18.7 Among the evidence was that the defendant had sent nude photographs to a third-party extortionist who had demanded either the photographs or $20,000, or he would inform school authorities of her sexual activities with former students, including divulging a video of her having sexual relations with one of those students.8 He had also told the defendant that he wanted her to have sex with former students at her house while he watched.9 Moreover, in emails, the extortionist mentioned the minor student two times, but neither reference to him suggested anything between the student and the defendant.10 Accordingly, the court determined that the evidence did not support the Attorney General’s position that any error in admitting evidence of defendant’s other conduct was “harmless,” and reversed the conviction.11

    1. In this case, because the parties had actually signed agreements, breach of contract applies, but the analysis is relevant to a promissory estoppel claim as well. ↩
    2. Limandri, 2013 WL 2451322, at *2. ↩
    3. Id. at *9. ↩
    4. See, e.g., Flatley v. Mauro, 46 Cal. Rptr. 3d 606 (Cal. 2006) (plaintiff entertainer sued attorney for civil extortion); Monex Deposit Co. v. Gilliam, 680 F. Supp. 2d 1148, 1156 (C.D. Cal. 2010) (setting forth elements for the civil tort of extortion, and awarding damages of $2,352,317, against defendants who demanded that Monex refund money owed or else defendants would register and use http://www.MonexFRAUD.com to destroy Monex’s business). ↩
    5. See Monex, 680 F. Supp. at 1155. ↩
    6. Flatley v. Mauro, 46 Cal. Rptr. 3d 628 (Cal. 2006); Cohen v. Brown, 93 Cal. Rptr. 3d 24, 30 (Cal. Ct. App. 2009). ↩
    7. See People v. Attebury, No. G044900, 2012 WL 3127246 (Cal. Ct. App. Aug. 2, 2013). ↩
    8. Id. at *5. ↩
    9. Id. ↩
    10. Id. ↩
    11. Id. ↩
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  8. California Penal § 528.5 – Impersonation through Internet or Electronic Means

    1. Introduction

      A person who impersonates another via the internet or other electronic means may be criminally liable for violating Cal. Penal Code § 528.5. The victim of the nonconsensual online publication of private, intimate images may be able to bring criminal charges against their harasser based on Cal. Penal Code § 528.5 if the publication of the images was accomplished by the harasser’s impersonation of the victim using the internet. Prosecution under Cal. Penal Code § 528.5 may be applicable if the harasser did any of the following in order to publish or disseminate the victim’s intimate images: Impersonated the victim and 1) opened an email account, 2) set up a profile on a social network website (i.e. Facebook or MySpace), or 3) published a blog or posted an advertisement online (such as on Craigslist).

    2. Text of the Statute

      “(a) Notwithstanding any other provision of law, any person who knowingly and without consent credibly impersonates another actual person through or on an Internet Web site or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person is guilty of a public offense punishable pursuant to subdivision (d).

      (b) For purposes of this section, an impersonation is credible if another person would reasonably believe, or did reasonably believe, that the defendant was or is the person who was impersonated.

      (c) For purposes of this section, "electronic means" shall include opening an e-mail account or an account or profile on a social networking Internet Web site in another person's name.

      (d) A violation of subdivision (a) is punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.

      (e) In addition to any other civil remedy available, a person who suffers damage or loss by reason of a violation of subdivision (a) may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief pursuant to paragraphs (1), (2), (4), and (5) of subdivision (e) and subdivision (g) of Section 502.

      (f) This section shall not preclude prosecution under any other law.”1

    3. Cases

      1. People v. Bollaert, No. CD252338 (Cal. Super. Ct. Dec. 10, 2013).

        • Procedural Posture: Complaint filed in San Diego Superior Court on December 10, 2013 alleging that defendant committed one count of conspiracy, two counts of extortion and twenty-eight counts of identity theft related to the operation of ugotposted.com and changemyreputation.com.

        • Law: Cal. Penal Code § 530.5(a); Conspiracy (Cal. Penal Code § 182); Extortion (Cal. Penal Code § 520)

        • Facts: Defendant operated the website ugotposted.com, which posted nude photographs of individuals accompanied by personally identifying information (typically including name, location, age and Facebook profile) without consent. Between December 2, 2012 and September 17, 2013, over ten thousand such photographs were published to ugotposted.com. During this period, defendant received numerous messages from individuals requesting that their information be removed from ugotposted.com and that the postings resulted in continuous harassment and detrimentally affected their professional and familial relationships. Defendant would respond to these requests from an email account tied to the changemyreputation.com domain. Changemyreputation.com was a separate site operated by defendant that would allow individuals to have their photos and personal information removed from ugotposted.com for a fee between $250 and $350.

        • Outcome: Defendant was found guilty on six counts of extortion and twenty-one counts of identity theft and sentenced to eighteen years in prison.

      2. People v. Felix, No. LAA1CA05334-01 (L.A. Super. Ct. filed May 27, 2011).

        • Procedural Posture: First conviction under Cal. Penal Code § 528.5. This case was brought to the attention of the District Attorney’s Office by the Internet Crime Against Children Taskforce.

        • Law: Cal. Penal Code § 528.5(a)

        • Facts: Defendant created 130 Facebook pages and various Craigslist listings impersonating victim, his 16-year old ex-girlfriend, in order to harass her.2 The profiles and listings contained the victim’s contact information, as well as sexually explicit photographs of the victim. Defendant also harassed victim’s mother by calling her cell phone numerous times.

        • Outcome: Defendant pled no contest to two counts of violating Cal. Penal Code § 528.5(a). He was sentenced to one year in jail, which was suspended, five years of probation and 30 days of CalTrans work. The court ordered defendant to stay away from the victim and prohibited him from having internet access during his probation period. Defendant’s sentence is contingent on his enrollment in anger management classes, counseling and sex therapy classes.

    4. Practice Pointers

      Cal. Penal Code § 528.5 also provides for civil liability.

    1. Cal. Penal Code § 528.5 (Deering 2011). ↩
    2. Facts gathered from Los Angeles City Attorneu Press Release, Office of the City Attorney, "City Attorney's Office Secures First Conviction Under New Internet Impersonation Law" (Oct. 19, 2011) at http://www.atty.lacity.org/stellent/groups/electedofficials/@atty_contributor/documents/contributor_web_content/lacityp_015740.pdf. ↩
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  9. Intimidation of Witness

    1. Introduction

      A person who published intimate photographs or videos of another with the intention to prevent or dissuade that person from testifying in court may be charged with intimidation of a witness under the Penal Code.

    2. Text of the Statute

      Cal. Penal Code § 136.1

      “(a) Except as provided in subdivision (c), any person who does any of the following is guilty of a public offense and shall be punished by imprisonment in a county jail for not more than one year or in the state prison:

      (1) Knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

      (2) Knowingly and maliciously attempts to prevent or dissuade any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law.

      (3) For purposes of this section, evidence that the defendant was a family member who interceded in an effort to protect the witness or victim shall create a presumption that the act was without malice.”

    3. Cases

      Research is ongoing.

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  10. California Penal Code 647(i) – Peeking While Loitering

    1. Introduction

      A person may be charged with disorderly conduct if s/he invades the privacy of another by peeping through a door or window.

    2. Text of the Statute

      Cal. Penal Code § 647(i):

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

      (i) Who, while loitering, prowling, or wandering upon the private property of another, at any time, peeks in the door or window of any inhabited building or structure, without visible or lawful business with the owner or occupant.

    3. Cases

      Research is ongoing.

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  11. 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.

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  12. California Penal Code § 647(j)(4) – Cyber Exploitation aka Revenge Porn

    1. Introduction

      A person may be charged with disorderly conduct if s/he invades the privacy of another by intentionally distributing an image of an intimate body part or parts of another identifiable person without consent.

    2. Text of the Statute

      Cal. Penal Code § 647:

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

      (4) (A) Any person who intentionally distributes the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.

      (B) A person intentionally distributes an image described in subparagraph (A) when he or she personally distributes the image, or arranges, specifically requests, or intentionally causes another person to distribute that image.

      (C) As used in this paragraph, “intimate body part” means any portion of the genitals, the anus and in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.

      (D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:
      (i) The distribution is made in the course of reporting an unlawful activity.
      (ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
      (iii) The distribution is made in the course of a lawful public proceeding.

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  13. California Penal Code §166(a)(4) Violation Of Court Order

    1. Introduction

      A person may be charged with violation of a court order if s/he violates a restraining order.

    2. Text of the Statute

      (a) Except as provided in subdivisions (b), (c), and (d), a person guilty of any of the following contempts of court is guilty of a misdemeanor:

      (4) Willful disobedience of the terms as written of any process or court order or out-of-state court order, lawfully issued by a court, including orders pending trial.

    3. Cases

      Research is ongoing.

    4. Practice Pointers

      That is a six-month misdemeanor. documenting further violations by the police (even if they don't immediately arrest her) will help any prosecution later. If your client is not afraid for his safety, it is unlikely the police will arrest her.

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  14. California Penal Code § 530.5 – Identity Theft

    1. Introduction

      A person who uses an electronic device to publish personal information of another without consent, for the purpose of causing unwanted contact or harassment, and with the intention of placing that person in fear for his or her safety or the safety of his or her immediate family, may be charged with a misdemeanor and punished by up to one year in jail and/or a fine up to $1000.

    2. Text of Statute(s)

      “(a) Every person who, with intent to place another person in reasonable fear for his or her safety, or the safety of the other person's immediate family, by means of an electronic communication device, and without consent of the other person, and for the purpose of imminently causing that other person unwanted physical contact, injury, or harassment, by a third party, electronically distributes, publishes, e-mails, hyperlinks, or makes available for downloading, personal identifying information, including, but not limited to, a digital image of another person, or an electronic message of a harassing nature about another person, which would be likely to incite or produce that unlawful action, is guilty of a misdemeanor punishable by up to one year in a county jail, by a fine of not more than one thousand dollars ($1,000), or by both that fine and imprisonment.

      (b) For purposes of this section, ‘electronic communication device’ includes, but is not limited to, telephones, cell phones, computers, Internet Web pages or sites, Internet phones, hybrid cellular/Internet/wireless devices, personal digital assistants (PDAs), video recorders, fax machines, or pagers. “Electronic communication” has the same meaning as the term is defined in Section 2510(12) of Title 18 of the United States Code.

      (c) For purposes of this section, the following terms apply:

      (1) ‘Harassment’ means a knowing and willful course of conduct directed at a specific person that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing the person and that serves no legitimate purpose.

      (2) ‘Of a harassing nature’ means of a nature that a reasonable person would consider as seriously alarming, seriously annoying, seriously tormenting, or seriously terrorizing of the person and that serves no legitimate purpose.”1

    3. Cases

      1. People v. Casco, No. G049375, 2015 WL 2455083 (Cal. Ct. App. May 22, 2015).

        • Procedural Posture: Defendant appeals Superior Court convictions on one count each of conspiracy to commit harassment by an electronic communication device and stalking, plus four counts each of false personation and identity theft.

        • Law: Harassment by an electronic communication device (Cal. Penal Code § 653.2); stalking (Cal. Penal Code § 646.9); false personation (Cal. Penal Code § 529); identity theft (Cal. Penal Code § 530.5)

        • Facts: Defendant created a fake MySpace profile that contain photographs and personal information, including name and address, of multiple victims. The MySpace profile also contained “sexually explicit music and comments.” Defendant also created advertisements on numerous websites containing language that suggested victims were offering sexual services for money and containing sexually explicit photographs and personal information, including victims’ name, address photographs and phone number. At trial, the victims testified as to how these advertisements and profiles caused them to fear for their safety and required them to move to a residence.

        • Outcome: The court concluded that there was sufficient evidence to support defendant’s multiple convictions.

      2. People v. Rosa, No. F063748, 2013 WL 941728 (Cal. Ct. App. Mar. 12, 2013).

        • Procedural Posture: Defendant appealed from jury convictions on charges arising from defendant’s course of conduct to terrorize his ex-wife.

        • Law: Stalking (Cal. Penal Code § 646.9); false personation (Cal. Penal Code § 529); identity theft (Cal. Penal Code § 530.5); unauthorized electronic distribution of personal identifying information (Cal. Penal Code § 653.2)

        • Facts: Defendant was married to victim for 10 years. Victim relocated to California, and the parties divorced. Shortly thereafter, while Victim was working at a bank, she began receiving phone calls from men saying they were calling about her ad on the Internet. Over a three-week period, victim received twelve or more calls from strangers; was shouted at by a stranger, and stranger waited at victim’s car after work and made rude comments to her. Eventually, victim changed jobs and had to move because of the constant harassment. Victim eventually checked and found an online personal advertisement containing four nude photographs of her taken during her marriage to defendant. Victim never gave defendant permission to display the nude photos publicly. Victim reported the ads to the police, and subpoenas to the Internet service provider identified the subscriber who posted the ads as defendant’s former roommate. After being convicted by a jury, defendant appealed, arguing that the convictions should be overturned on various grounds.

        • Outcome: Defendant did not challenge the unauthorized electronic distribution of personal identifying information charge; conviction affirmed.

    1. Cal. Penal Code § 653.2. ↩
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  15. California Penal Code § 631 – Wiretapping

    1. Introduction

      A person who intercepts a communication in transit over a telephone or other communication line without the consent of all parties to the communication may be charged with wiretapping. For example, an individual who installs spyware on a computer to capture communications without the consent of all parties to the communication may be charged with wiretapping. Likewise, a person who installs hidden cameras to view and transmit sexual activity over an individual’s home network without the consent of the parties engaged in the activity may be charged with wiretapping. Disagreement exists as to whether the recording of sexual activity without accompanying conversation constitutes a “communication” under the statute. While closely related to (and often charged along with) eavesdropping, wiretapping is the act of intercepting a communication in transit rather than simply monitoring communications without consent.

    2. Text of the Statute(s)

      “(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both a fine and imprisonment in the county jail or pursuant to subdivision (h) of Section 1170. If the person has previously been convicted of a violation of this section or Section 632, 632.5, 632.6, 632.7, or 636, he or she is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.

      (b) This section shall not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of the services and facilities of the public utility, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.

      (c) Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.

      (d) This section shall become operative on January 1, 1994.”1

    3. Cases

      1. People v. Moreno, No. C072902, 2014 WL 6809702 (Cal. Ct. App. Dec. 3, 2014).

        • Procedural Posture: Defendant was required to register as a sex offender and convicted of nineteen felonies and two misdemeanors, including burglary, wiretapping, unauthorized computer access, and stalking. On appeal, defendant contends there was insufficient evidence to support two counts of wiretapping and that he was entitled to a jury trial because the residency requirements of sex offender registration impose additional punishments.

        • Law: Wiretapping (Cal. Penal Code § 631(a)); stalking (Cal. Penal Code § 646.9); burglary (Cal. Penal Code § 459*); unauthorized computer access (Cal. Penal Code § 502(c)(4))

        • Facts: Defendant and victim dated from April 2007 until January 2010 and maintained a cordial relationship. Within two months, defendant and victim began dating again. In March 2010, defendant visited victim’s home and installed two spyware programs on her computer. The first program recorded computer activity, including email, chats and website visits. The second program emailed defendant regular activity reports. On July 16, defendant and victim broke up. Following the breakup, defendant broke into victim’s apartment numerous times, stole various items from victim’s home (including jewelry, concert tickets, keepsakes and used condoms), threatened to publish nude photos of victim online, installed spyware on victim’s computer, installed hidden cameras in victim’s home, photographed victim through her windows, and disabled victim’s alarm system. After searching defendant’s home and computer, police discovered a computer file labeled “stalking,” dated images of items stolen from victim’s home, detailed written accounts on victim’s sexual activity, a lock-picking kit, various items stolen from victim's home, intercepted chats and emails from victim, and more than 40 hidden camera videos from victim’s home.

        • Outcome: The trial court judgment was affirmed, including the wiretapping counts for both installing spyware on victim’s computer and using hidden cameras to monitor victim’s activity. The court found that the unauthorized transmission and viewing of videos from within victim’s home constituted wiretapping because defendant made unauthorized use of victim’s router to intercept communications captured using the hidden cameras. The court also noted that “more illegal act[ivity] than simpl[e] wiretapping” was involved in obtaining the videos.

    1. Cal. Penal Code § 631. ↩
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