Opinion
E073446
05-28-2021
THE PEOPLE, Plaintiff and Respondent, v. JUAN ANTONIO GUZMAN-VALDEZ, Defendant and Appellant.
Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1701693) OPINION APPEAL from the Superior Court of Riverside County. Frederick Paul Dickerson III, Judge. Affirmed. Marilee Marshall, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Antonio Guzman-Valdez was convicted of three crimes against his ex-wife, one of which was invasion of privacy under Penal Code section 632, subdivision (a) (section 632(a)), based on his walking in on and video recording his ex-wife having sex with another man. His core argument on appeal is that his actions did not violate section 632(a). We disagree and affirm.
The relevant facts are straightforward. In 2016, Guzman-Valdez asked his then-wife Jane Doe for a separation. In February 2017, Guzman-Valdez moved out of the family residence, while Doe and their children remained. Three months later, he was served with a criminal protective order prohibiting him from, among other things, entering the family residence. Doe did not know that Guzman-Valdez still had keys to the house.
Guzman-Valdez and Doe divorced in 2018.
One morning the next month, Guzman-Valdez went to the family residence. He testified that he and Doe had an "agreement": "I had my tools in the garage, and she was letting me take those because I needed them to be able to work." But once there, he heard the sound of Doe having sex. Taking the "chance to prove that she was not loyal to me," he began video recording on his cell phone and went into the residence. The recording, which was played at trial, showed Doe having sex with another man in a bedroom. In the video, after Guzman-Valdez walks in, Doe is heard saying "Oh my God" to her partner before Guzman-Valdez says "Hola mi amor" about 18 seconds later. Only then does it appear that Doe and her partner realize Guzman-Valdez is there, and Doe asks in Spanish, "What are you doing here?" before Guzman-Valdez laughs and says "I got you." At trial, Guzman-Valdez was convicted of violating section 632(a), charged here as a felony, by unlawfully recording Doe without her consent. He was also convicted of burglary (unlawfully entering a building with an intent to commit a felony) and violation of a protective order. (See Pen. Code, §§ 166, subd. (c)(1), 459.) He was acquitted on other charges.
Guzman-Valdez argues on appeal that he did not violate section 632(a). Section 632(a) makes it a crime to, "intentionally and without the consent of all parties to a confidential communication, use[] an electronic amplifying or recording device to eavesdrop upon or record the confidential communication," except when the communication is via radio. Guzman-Valdez frames the issue as whether sexual intercourse by itself is "communication" under section 632(a) and argues it is not.
There is a split of authority on the issue as Guzman-Valdez has framed it. In People v. Gibbons (1989) 215 Cal.App.3d 1204 (Gibbons), this court held that sexual intercourse always qualifies as "communication" under section 632(a). Gibbons noted that "communication has been recognized to include not only oral or written communication but communication by conduct as well." (Id. at p. 1209.) It also stated: "That sexual relations is a form of communication, be it communication of love, simple affection, or, simply of oneself, cannot be readily disputed." (Ibid.) However, in People v. Drennan (2000) 84 Cal.App.4th 1349 (Drennan), the court construed the statute more narrowly, holding that "the recordings prohibited by [section 632(a)] are the recordings of the contents of audible or symbol-based communications." (Drennan, supra, at p. 1357, italics added.) Drennan involved a hidden camera that captured images "at the rate of one frame every three seconds" (Drennan, supra, at p. 1352), and the case involved no episodes of sexual intercourse. However, to the extent a recording of sexual intercourse with no audio between participants is at issue, Gibbons holds such a recording falls under section 632(a), while Drennan indicates that it does not. (See Drennan, supra, at p. 1354 [disagreeing with Gibbons].) Guzman-Valdez argues that we should follow Drennan, while the People argue we should follow Gibbons.
The phrase "symbol-based communications" appears intended to capture communications transmitted via devices such as the telegraph. (See Drennan, supra, 84 Cal.App.4th at p. 1356 ["The statute makes clear that such a communication may be carried on by 'telegraph, telephone, or other device,' which transmit information by sound or symbol."].)
We need not pick a side on this knotty issue today. In the video here, Doe conveyed verbal, audible communications to her sexual partner ("Oh my God") in a bedroom setting that was indisputably confidential. Thus, under either Gibbons or Drennan, Guzman-Valdez violated section 632(a). (See Gibbons, supra, 215 Cal.App.3d at p. 1211, fn. 2 (dis. opn. of Campbell, C.J.) ["whether or not recording sexual conduct is a violation of section 632, the recording of verbal communication indisputably is"].)
The video was originally not part of the record on appeal, nor did the parties directly address whether any statements made in the video affected the legal analysis. On our own motion, we directed the parties to submit supplemental briefs addressing "(1) whether the cell phone video contains any audio between Jane Doe and [her sexual partner], (2) if so, whether the presence of such audio is sufficient for the video to constitute 'communication' under Penal Code section 632, and (3) whether the video should be included in the record on appeal." The People submitted the video along with their supplemental brief, and we hereby augment the record to include the video.
The trial court followed Gibbons in stating that section 632(a) applies "broadly" to "two people expressing their desire to be with one another sexually." Given our holding, the trial court's reasoning does not matter, although Guzman-Valdez makes an unsupported assertion that it does. "'The fact that the action of the court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.'" (D'Amico v Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.) "'No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.'" (Id. at p. 19.) The trial court's ruling was correct, even if it were to turn out that Gibbons was not.
Guzman-Valdez's only other contention is that, because he did not commit a felony violation of section 632(a), he could not have had the intent necessary for his burglary conviction. Burglary requires an "intent to commit grand or petit larceny or any felony" (Pen. Code, § 459), and Guzman-Valdez's burglary count was premised on the section 632(a) violation. But because we uphold the section 632(a) violation, we reject his argument as to the burglary count as well.
DISPOSITION
The judgment is affirmed.
RAPHAEL
J.
We concur:
FIELDS
Acting P. J.
MENETREZ
J.