People v. Gibbons

• Decision Date: 17 November 1989
• Docket Number: No. E006489,E006489
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE, Plaintiff and Respondent, v. Michael Francis GIBBONS, Defendant and Appellant.

Page 905

263 Cal.Rptr. 905

215 Cal.App.3d 1204

PEOPLE, Plaintiff and Respondent, v. Michael Francis GIBBONS, Defendant and Appellant.

No. E006489.

Court of Appeal, Fourth District, Division 2, California.

Nov. 17, 1989.

Review Denied March 15, 1990.

John C. Bush, Hemet, for defendant and appellant

Grover C. Trask, II, Dist. Atty., and Leonard H. Mandel, Deputy Dist. Atty., for plaintiff and respondent.

HOLLENHORST, Associate Justice.

Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the appellate department of the Riverside Superior Court. In this appeal, we are asked for the first time to decide whether the surreptitious videotaping of sexual activity violates California's privacy statutes, Penal Code sections 630 and 632. The trial court overruled defendant's demurrer and a jury convicted defendant. Defendant appeals arguing the conduct in question is not prohibited by these sections. We agree with the trial court's determination and affirm.

FACTS

On three different occasions, defendant invited young women to his residence. In the bedroom, with the door closed and window curtains drawn, defendant and the three women engaged in sexual activity including sexual intercourse. Without obtaining the consent of the women, defendant videotaped these encounters utilizing a video camera which he had hidden in the closet. The women were never advised of the existence of the camera until being

subsequently informed by police who recovered the videotapes.

DISCUSSION

1. Videotaping May Violate the Right of Privacy.

Penal Code sections 630 and 632 define the purpose of the privacy act and its proscriptions. ¹ Neither side has provided controlling authority dealing directly with videotaping; however, as we discuss, the language of the statute and cases make it clear that the legislature intended to control the activity underlying this case.

The purpose of the statutes is clear and unambiguous. Initially, in section 630, the legislature recognized that technology had advanced to the extent that privacy could be imperiled unless the legislature intervened. The privacy statutes were enacted after a series of hodgepodge regulations dealing with privacy in communications had been amended and reamended. It was out of recognition that the entire privacy area needed overhaul that the privacy statutes were adopted. (Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1189-1190.) We note in the text Defendant contends that even if a video recorder is a device or instrument covered by the privacy act, the statute only prohibits the surreptitious recording of oral communications, i.e., conversations, and does not extend to the recording of sexual acts or other forms of communication. We disagree. While communication and conversation are similar in their meaning, conversation refers to a spoken exchange of thoughts, opinions, and feelings while communication refers more broadly to the exchange of thoughts, messages or information by any means. (The American Heritage Dictionary (2d College ed. 1976) pp. 299, 320.) Additionally, we note that in the federal wiretapping provisions, Congress expressly limited the application of its statute to the nonconsensual recording of oral communications. (18 U.S.C. § 2510(2).) No such similar express limitation is found in the privacy act.

of section 630, no reference is made to a specific device or instrument for eavesdropping. Rather, the prohibition is based on the purpose for which the device or instrument is used. In section 632, the statute provides against the use of "any electronic amplifying or recording device" for the purpose of eavesdropping or recording private communications. We find that a video recorder is an instrument which, if used in manner proscribed under section 632, is a recording device for purposes of the privacy act. "If the words of the statute are clear, the court should not add to or alter them to accomplish a purpose that does not appear on the face of statute or from its legislative history." (People v. Knowles (1950) 35 Cal.2d 175, 183, 217 P.2d 1.) "The dominant objective of the act, as reflected in its preamble, is 'to protect the right of privacy of the people of this state.' " (Warden v. Kahn (1979) 99 Cal.App.3d 805, 810, 160 Cal.Rptr. 471.)

In other contexts, communication has been recognized to include not only oral or written communication but communication by conduct as well. For example, in the area of attorney-client privilege, it has been recognized that "[t]he privilege embraces not only oral or written statements but actions, signs, or other means of communicating information by a client to his attorney. [Citations.] '[A]lmost any act, done by the client in the sight of the attorney and during the consultation, may conceivably be done by the client as the subject of a communication, and the only question will be whether, in the circumstances of the case, it was intended to be done as such.' " (City & County of S.F. v. Superior Court (1951) 37 Cal.2d 227, 235-236, 231 P.2d 26.) That sexual relations is a form of communication, be it communication of love, simple affection, or, simply of oneself, cannot be readily disputed. ²

We acknowledge that certain terms used in the privacy act, such as "eavesdropping," "amplifying device" and "telephone," might suggest a narrow definition of communication, synonymous with conversation. However, section 630 expressly states the intent of the legislature to protect the right of privacy of the people of this state. Consistent with the express declaration of intent and in the absence of any express statutory limitations, 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.

2. Due Process.

Having determined that the privacy statute proscribes the nonconsensual recording of any confidential communication, regardless of the content of the communication or its form, we must next determine whether this determination and its application to defendant violates due process. (Bouie v. City of Columbia (1964) 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894.) The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution includes the concept that statutes must be written with sufficient definiteness and certainty so as to provide fair notice or fair warning of what conduct is either required or proscribed by the statute. (People v. Superior Court (Engert) (1982) 31 Cal.3d 797, 801, 183 Cal.Rptr. 800, 647 P.2d 76.) Similarly, "[t]here can be no doubt that a deprivation of the right of fair warning can result not only from vague statutory language but also from an unforeseeable and retroactive judicial expansion of narrow and precise statutory language." (Bouie v. City of Columbia, supra, 378 U.S. at p. 352, 84 S.Ct. at p. 1702.)

The concept of fair notice is not intended " 'to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.' (Colten v. Kentucky (1972) 407 U.S. 104, 110 [92 S.Ct. 1953, 1957, 32 L.Ed.2d 584]....)" (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 347, 138 Cal.Rptr. 66, 562 P.2d 1315.) In the case of judicial construction, due process is not violated merely because the language of the statute is being applied to a particular situation for the first time. Thus, in Granite Construction Co. v. Superior Court (1983) 149 Cal.App.3d 465, 470, 197 Cal.Rptr. 3, the fact that a corporation previously had never been prosecuted for manslaughter did not result in a lack of due process. Nor do due process concerns of fair warning arise where the language of the statute is not being expanded in an unforeseeable manner even though the case is one of first impression and even if dicta in prior decisions suggested a narrower application. Thus in People v. Sobiek (1973) 30 Cal.App.3d 458, 473-475, 106 Cal.Rptr. 519, the court found no due process violation in applying the grand theft statute to a partner for the wrongful taking of partnership property even though dicta in prior decisions suggested otherwise.

" 'This is not a case where an act clearly not criminal at the time of its occurrence, is so declared to be at some subsequent time. Nor is it a case where criminal responsibility should not attach because the actor could not reasonably understand that his contemplated conduct was proscribed.' ... 'It is not always true that where the definition of a crime is extended by judicial construction, a conviction which results therefrom is a denial of due process'.... '[T]he law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or a short imprisonment, as here; he may incur the penalty of death.... "The criterion in such cases is to examine whether common social duty would, under the circumstances, have suggested a more circumspect conduct." ' " (People v. Sobiek, supra, 30 Cal.App.3d at pp. 474-475, 106 Cal.Rptr. 519.)

Whether our action today in applying the privacy act to defendant's conduct is viewed as an enlargement of the statutory language or merely an application of first impression, we are convinced defendant received fair warning. There can be little doubt defendant knew that in recording the sexual activity without the woman's...