People v. M.H. (In re M.H.)

• Decision Date: 21 June 2016
• Docket Number: D067616
• Citation: 205 Cal.Rptr.3d 1,1 Cal.App.5th 699
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE M.H., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. M.H., Defendant and Appellant.

1 Cal.App.5th 699

205 Cal.Rptr.3d 1

IN RE M.H., a Person Coming Under the Juvenile Court Law.

The People, Plaintiff and Respondent

v.M.H., Defendant and Appellant.

D067616

Court of Appeal, Fourth District, Division 1, California.

Filed June 21, 2016

Appellate Defenders, Inc., and Jared G. Coleman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting, Deputy Solicitor General, Eric A. Swenson, Scott C. Taylor and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and Respondent.

NARES

, Acting P.J. Technology advancements have resulted in many high school students carrying smartphones, which have applications to record and upload videos to social media for immediate viewing by their peers. In this case, 16–year–old M.H. used his smartphone to surreptitiously record a fellow high school student, Matthew B., in a school bathroom stall while Matthew was either masturbating or jokingly pretending to do so. The video, taken inside the bathroom, but about 20 feet away from the bathroom stall, did not show Matthew's face, but did reveal his distinctive socks and shoes, which were visible in the gap between the stall wall and the floor. M.H. uploaded the 10–second video to his Snapchat application with the caption, “I think this dude is jacking off” or some similar title.

M.H. intended the video to be funny and to get a laugh. But tragically, about two weeks later, Matthew took his own life, stating in a suicide note, “I can't handle school anymore and I have no friends.”¹

The San Diego County District Attorney's Office filed a juvenile delinquency petition under Welfare and Institutions Code section 602

alleging M.H. engaged in an unauthorized invasion of privacy by means of a cell phone camera in violation of Penal Code ² section 647, subdivision (j)(1) (hereafter section 647(j)(1) ), a misdemeanor.³

Following a contested adjudication hearing, the court found true the allegation that M.H. violated section 647(j)(1)

. The court sentenced M.H. to probation on numerous conditions, including several restricting his use of social media. Addressing M.H., the court stated, “We are going to come back in 60 days. I'm going to see how you are doing. If I have any more problems with you, you are going into custody.”

On appeal, M.H. first contends no substantial evidence supports the juvenile court's finding that he had the requisite specific intent “to invade Matthew's privacy” as required by section 647(j)(1)

. Specifically, M.H. contends Matthew had no reasonable expectation of privacy in the bathroom stall because Matthew's distinctive shoes were visible under the stall's wall and Matthew was audibly moaning, which anyone in the bathroom could have heard. Second, for the first time on appeal, M.H. also contends section 647(j)(1)

incorporates by reference the elements of the tort of invasion of privacy, and assuming that to be true, he asserts there is a “newsworthy” defense that immunizes him from criminal liability in this case. Third, and also for the first time on appeal, M.H. contends that, as applied here, section 647(j)(1) violates his First Amendment rights.

We affirm. A student in a high school bathroom stall reasonably expects he will not be videoed and have that video disseminated on social media. Matthew did not forfeit that right merely because his socks and shoes could be seen and his voice could be heard by others in the bathroom. Matthew may have run the risk that people in the bathroom would tell others what they witnessed there. But that is a far cry from expecting his conduct would be electronically recorded and broadcasted to the student body. Thus, M.H.'s main appellate argument fails because the right to privacy is not one of total secrecy, but rather the right to control the nature and extent of firsthand dissemination. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 235, 74 Cal.Rptr.2d 843, 955 P.2d 469

(Shulman ).) The “ ‘ “mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone.” ’ ” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 291, 97 Cal.Rptr.3d 274, 211 P.3d 1063 (Hernandez ).)

M.H.'s contention that section 647(j)(1)

incorporates the tort elements of invasion of privacy is forfeited because his attorney took the exact opposite position in the juvenile court, asserting, “This is not a tort case. This is a crime.” In any event, even if not forfeited, the argument is unavailing because neither the text nor the legislative history of section 647(j)(1) supports M.H.'s argument. We also conclude M.H. forfeited his claim that section 647(j)(1) violates his First Amendment rights because M.H. did not raise this constitutional issue in the juvenile court. (People v. Ervine (2009) 47 Cal.4th 745, 783, 102 Cal.Rptr.3d 786, 220 P.3d 820 [constitutional claim forfeited because appellant did not properly raise it below]; People v. Clayburg (2012) 211 Cal.App.4th 86, 93, 149 Cal.Rptr.3d 414 [First Amendment claim forfeited by failure to raise it below].)

FACTUAL BACKGROUND

In 2013 M.H. and Matthew attended University City High School. At the time, M.H. was in 11th grade, and Matthew was in ninth grade.

On a Friday afternoon, Matthew and Erik J., friends since sixth grade, entered the boys' restroom. The entrance doors to the bathroom were always kept open to deter vandalism; however, people outside could not see the bathroom's interior. Inside, the bathroom has a row of five sinks along one wall, and eight urinals and two stalls on the opposite side. Only one of the two stalls, the one farthest from the entrance, has a door. Nevertheless, because of the way the room is configured, someone standing near the urinals or sink could only see the side of the doorless stall.

Upon entering the bathroom, Erik entered the far stall, the one with the door, and closed it. Matthew went into the other stall, the doorless one, and remained standing, with his feet facing the toilet. Matthew began making moaning sounds. Erik did not think Matthew was actually masturbating, but thought it was “a joke” because, as Erik testified, Matthew “was like that. Like, he would just mess around.”

M.H. entered the restroom while Erik and Matthew were still inside their respective stalls. M.H. “heard some noises coming from one of the toilet stalls, noises that sounded like somebody was masturbating.” While standing near the bathroom sinks, about 16 to 25 feet away from the stalls, M.H. used his smartphone to record a 10–second video of Matthew in the stall, making “easily audible” groaning sounds. M.H. did not make any noise or say anything to indicate he was there, and made no attempt to get anyone's permission to take the video.

The video showed Matthew's distinctive socks and shoes, visible in the gap between the stall wall and the floor. M.H. did not see Matthew's face and he did not know who was in the stall he was recording.

When Erik exited his stall, he did not see anyone in the bathroom except Matthew, who was standing near a sink. Erik and Matthew did not discuss the matter and returned to their respective classes.

After leaving the bathroom, M.H. uploaded the video to his Snapchat “stories” application with the caption, “I think this dude is jacking off” or some similar title. Snapchat is a smartphone application that allows users to send pictures and videos (not to exceed 10 seconds in length) to friends or followers. Unlike other social media applications, videos uploaded to Snapchat stories disappear after 24 hours. M.H. thought the video was funny and he uploaded it to “get a laugh.”

While at the high school's football game that Friday evening, M.H. approached Erik and another student, Ezekiel A. M.H. asked Erik if he was “the kid in the rest room?” Erik said he did not know what M.H. was talking about. M.H. logged into his Snapchat application on his smartphone, and showed Erik and Ezekiel the bathroom video. Ezekiel testified the video showed a person's feet in one of the stalls and “a noise, like if someone was masturbating.” Ezekiel recognized Matthew as the person in the stall because “Matt always ... wore his black shoes with Adidas socks, ankle socks.” Erik also recognized his own shoes in the video in the adjacent stall, and Erik told M.H. that Matthew was the person in the other stall.

Three days later on Monday, Ezekiel told Matthew, “There's a video of you that shows that you might be masturbating in the rest room.” Matthew replied that he was just joking around and trying to make people laugh.

It is not known how many people saw the video. M.H. told the police he had “a lot” of Snapchat followers, but “[i]t's not like a million.” Because M.H. posted the video on Snapchat stories, the video disappeared after 24 hours. In M.H.'s dispositional hearing, Matthew's mother said that when Matthew returned to school that Monday, “everyone was talking about him in the video.”⁴

Approximately two weeks later, Matthew committed suicide. In a handwritten note, Mathew expressed his love for his family and stated, “I have killed myself. I can't handle school anymore and I have no friends. I don't like my life.” Matthew's note also states, “I've been planning this for months now.”

On the day of Matthew's funeral, M.H. confronted Ezekiel and threatened to “kick his ass” if Ezekiel did not stop telling people M.H. took the video. Ezekiel reported the threat to school officials.

Subsequently, the vice principal, together with M.H.'s basketball coach, and a San Diego Unified School District police officer, met with M.H. and Ezekiel to address the issue of M.H.'s threat. After that issue was apparently resolved and Ezekiel left the room, M.H. confessed he recorded and uploaded the video. M.H. said he made and uploaded the video because he thought it was funny that...