California Court of Appeals, Second District, Eighth Division
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA059058 Bernie La Forteza, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
BIGELOW, P. J.
This case concerns the proper interpretation of Penal Code section 647, subdivision (j)(2),  which, in brief, criminalizes the act of secretly filming or photographing an “identifiable person” under or through that person’s clothing so as to view the person’s body or undergarments, for sexual gratification, under circumstances in which the person has a reasonable expectation of privacy. Defendant Mylyn C. Johnson was charged with 12 counts of violating section 647, subdivision (j)(2). The jury was shown video footage defendant had recorded in which he followed women and filmed under their skirts, without their knowledge. In some cases, the resulting footage did not capture the women’s faces, or their profiles. During closing arguments, the prosecution and defense advanced two competing definitions of “identifiable person.” The jury found defendant guilty on all counts under section 647, subdivision (j)(2).
On appeal, defendant contends: (1) the convictions on five of the counts must be reversed because there was no evidence he filmed “identifiable” persons, in that the women could not possibly be identified from the video footage; (2) the trial court erred in failing to sua sponte define “identifiable person” for the jury; and (3) defense counsel rendered ineffective assistance of counsel in failing to object to the prosecutor’s definition of “identifiable person.” We conclude that to establish a defendant has filmed an “identifiable person, ” the prosecutor must prove that when all of the evidence is considered, it is reasonably probable someone could identify or recognize the victim; this may include the victim herself or himself. Although we conclude there was sufficient evidence adduced in this case to satisfy this standard on each of the challenged counts, we reverse the judgment as to the five challenged counts due to prejudicial instructional error.
FACTUAL AND PROCEDURAL BACKGROUND
In March 2013, Andrea M. and her sister, Raquel M., were shopping at a Target store in Lancaster. Andrea noticed defendant was following them. He was holding a black phone. At one point, defendant kneeled down and pretended to get something, then aimed the phone under Andrea’s skirt. Andrea was surprised. She thought the incident was “creepy” and, with Raquel, reported it to a Target employee. A Target security employee began observing defendant through store surveillance cameras. As the security employee watched, defendant followed a woman in the store. At strategic moments, he bent down and used his phone to film under her dress. The security employee called police, then followed defendant when he left the store.
A Los Angeles County deputy sheriff eventually arrived and stopped defendant. Defendant was holding a phone in one hand and a tablet computer in the other. He admitted he had been in Target, and, when asked, admitted he had taken pictures up women’s skirts. He conceded he did not have permission to take such pictures. Defendant was arrested. When Andrea and Raquel M. approached the deputy’s patrol car for a field identification, defendant said to the deputy, “Can you tell them I’m sorry?” After receiving Miranda warnings (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602]), defendant told the deputy he had only photographed one woman and that this was the first time he had ever done so. However, a search of his phone revealed well over 100 “up-skirt” videos and pictures. The women in the videos appeared to be unaware they were being recorded.
One of the many videos depicted Francisca M. In February 2013, she stopped at a Wal-Mart in Lancaster to buy a cell phone charger. She asked a man she thought worked at the storedefendantfor help. Unbeknownst to her, defendant had been following her in the store before she spoke to him. As defendant helped Francisca, he surreptitiously videotaped under her skirt. After Francisca bought the charger, defendant followed her to her car and asked if she had found what she was looking for. The license plate of her car was captured in the recorded footage, which enabled law enforcement to identify and contact her.
A detective from the Sheriff’s Department reviewed videos from defendant’s phone and the hard drive of a laptop seized from his home. There were over 2, 000 videos, including “sex videos” of defendant with various women, and up-skirt videos. Although there were other non-sex-related videos, the overwhelming majority of the videos involved “sexual-related” content. The number of videos in which defendant followed a person but was unable to get an “up-skirt” shot exceeded the number of videos in which he was successful. The videos were recorded at various public places, such as Metrolink stations, Grauman’s Chinese Theater in Hollywood, the Hollywood Walk of Fame, and stores such as the Salvation Army in Lancaster and Starbucks. In general, defendant stalked his victims for several minutes, until he was able to get close enough to aim his phone “under the person’s skirt or near their buttock region.”
The jury viewed a number of videos associated with the 12 counts charged under section 647, subdivision (j)(2). With the exception of the videos of Andrea and Raquel M. and Francisca M., the victims were identified only as Jane Does; law enforcement had not determined their identities. In some of the videos defendant recorded the victim’s face. But in the videos associated with counts 8, 9, 11, 14, and 15, the victim’s face was not visible in the recording. Instead, only shoes, legs, skirts or dresses, purses, and in a few cases, the woman’s back and the back of her head, appeared on screen.
The trial court instructed the jury on the elements of a section 647, subdivision (j)(2) violation, including as follows: “[T]he People must prove that... [t]he defendant willfully used a concealed camcorder, motion picture camera, or photographic camera of any type to secretly videotape, film, photograph, or record by electronic means another, identifiable person under or through the clothes being worn by that other person....” In his closing argument, the prosecutor discussed the “identifiable person” requirement: “What does ‘an identifiable person’ mean? It simply means a person that exists, someone you can identify as a person, as opposed to a doll or something like that. It’s an identifiable person. And that makes sense.... [I]f that wasn’t the case, then we wouldcould reward people for targeting strangers as victims or for making their victims unidentifiable when they are finished with the crime, and that wouldn’t make sense. So an identifiable person just means a human being.”
In the defense closing argument, defense counsel asserted the prosecutor’s definition was incorrect: “[I]t’s true that that word [('identifiable')] is not specifically defined in your instructions. So I would encourage you to ask a question about that word. But what it really means, in the context of this law, is that it is a specifically identifiable human being; in other words, what’s on the video allows you to tell who that person is. Now, I’m not saying that you actually have to be able to figure it out, but there needs to be something on that video which makes that person subject to identification. Obviously, the most easy way is if there’s a face. We’ve seen that there’s other ways.... Maybe there’s a license plate in another video. But on counts 8, 11, 14, and 15, there is nothing. There is nothing in those videos that would ever allow you to identify that woman. There is nothingyou don’t see her face, and there’s nothing else. So he has one interpretation, I have another. Ultimately, as the judge has instructed you, it is the court that answers any questions about the law. So when you see eventually that ‘identifiable’ means it’s actuallyyou can tell if it’s a specific person or not, you will see that counts 8, 11, 14, and 15 have not been proven and Mr. Johnson is entitled to a verdict of not guilty.”
In rebuttal, the prosecutor urged the jury to reject defense counsel’s interpretation: “Basically, he’s saying if you can’t actually identify the victim, then we can’t reach a guilty verdict. That is completely wrong, because, then, let’s think about what that would mean. That would mean that anybody who wants to go and take videos up underneath women’s skirts, all you got to do is just make sure you never get their face or you never get any of their license plates or anything identifiable, and you’re okay, you’re not committing a crime. That would be ludicrous. Of course, ‘identifiable’ meansand you can use your common sense.... You don’t need to ask the judge what ‘identifiable’ means, because you’re not going to get an answer. You’re going to get ‘refer to the jury instruction.’ You don’t need to ask that question. You
just need to use your common sense.... Common sense: ‘identifiable, ’ somebody that’s a human being, somebody we can identify as a person, we can identify as a victim. We see her sitting on the train, we know she’s there, we know she’s a victim. That’s what ‘identifiable’ means, and it’s common sense.”
The jury returned guilty verdicts on all of the charges under section 647, subdivision (j)(2). The jury also found defendant guilty of one count of sexual battery by fraud (§ 243.4, subd. (c)), and one count of felony false imprisonment (§ 236). Defendant filed a motion for new trial as to counts 8, 11, and 14. Defense counsel contended the statute requires that the victims be identifiable as specific individuals, and the videos supporting those three counts did not “depict victims subject to individual identification.” Counsel attached the legislative history of section 647, subdivision (j)(2), in support of the motion. The motion was denied.
The trial court separately found true allegations that defendant had suffered one prior strike and had served a prior prison term within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 20 years six months.
I. Substantial Evidence Supported the Convictions on Counts 8, 9, 11, 14 and 15
Defendant contends the convictions on counts 8, 9, 11, 14 and 15 must be reversed for insufficient evidence. He argues the videos at issue in those counts do not contain any identifying characteristics of the victims, thus there was no evidence that he filmed “identifiable persons” as required by the statute. The heart of the argument concerns the meaning of the statutory
requirement that a defendant film an “identifiable person.” Although we review a jury’s findings of guilt for substantial evidence, statutory interpretation is a question of law we review de novo. (People v. Spriggs (2014) 224 Cal.App.4th 150, 154 [168 Cal.Rptr.3d 347].)
Under section 647, subdivision (j)(2), a person engages in the misdemeanor offense of disorderly conduct when he or she “uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy.”
As explained above, in the trial court the parties advanced competing definitions of “identifiable person.” The prosecutor argued the phrase meant simply that the evidence had to show defendant recorded a human being, rather than a nonhuman figure, such a doll. Defense counsel argued the phrase meant the recorded picture or footage had to depict a specific person who could be identified in some way, or “what’s on the video allows you to tell who that person is, ” even though counsel added: “Now, I’m not saying that you actually have to be able to figure it out, but there needs to be something on that video which makes that person subject to identification.” In the motion for new trial, defendant contended “identifiable person” meant the videos had to “allow for the person filmed to be identified, ” or that the women filmed had to be “capable of being identified as specific individuals.”
On appeal, defendant similarly contends a defendant can only be found guilty under section 647, subdivision (j)(2) if he or she films a “person in such a way that it is possible to determine her identity, such as by depicting her face or other identifying characteristics, whether or not her identity is ultimately established.” The People now contend “identifiable person” means “distinguishable, ” in that the recorded image must show a victim “who can be distinguished from other persons.” Both sides agree the language of the statute is not clear, but they disagree as to the import of the legislative history. Both sides also focus their discussions on “identifiability” from the recorded image itself. However, neither defendant nor the People argue the victim’s identity must ultimately be established. In other words, neither side contends the People must bring the victim into court or offer evidence establishing the victim’s name.
As discussed in greater detail below, our review of the language of the statute, the legislative history, and the apparent legislative purpose indicates that the Legislature was primarily concerned with the invasion of privacy that occurs when one person secretly photographs or films under or through the clothing of another person. Yet, it also appears that the Legislature did not intend to allow criminal prosecution for such acts when it would be impossible for anyone to ever identify, recognize, or otherwise discern who the victim was.
We therefore conclude the following. First, that the defendant must film an “identifiable person” to face criminal liability under section 647, subdivision (j)(2), does not mean the victim’s identity must ultimately be established. The People do not have to prove up the victim’s identity. The People do not have to prove the victim has actually been identified, located, or named. The People do not have to offer evidence showing anyone has actually recognized the victim.
Second, “identifiable” means capable of identification, or capable of being recognized. In other words, is there enough evidence about the victim that it is reasonably probable someone could identify or recognize the victim? We reject the People’s argument that “identifiable” means only that it is possible to distinguish one victim from another.
Third, “identifiable” means that when all of the available evidence is considered, it is reasonably probable that someone could identify or recognize the victim. This includes the victim herself or himself. The People will prove the “identifiable person” element by establishing that, when all of the evidence is considered, it is reasonably ...