Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC637407
McAdams, J.
Following a court trial, defendant was found guilty of felony possession of methamphetamine, misdemeanor possession of drug paraphernalia, and misdemeanor surreptitious use of a camera to view under another person’s clothing. (Health & Saf. Code §§ 11377, subd. (a); 11364; Pen. Code § 647, subd. (k)(2).) Defendant admitted he had served two prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to two years in state prison on the felony count, and to concurrent 90-day sentences on the misdemeanors. The court struck the prior prison term enhancements. On appeal, defendant challenges only his conviction for violating section 647, subdivision (k)(2). He argues that the conviction is not supported by substantial evidence. We affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
STATEMENT OF FACTS
On July 30, 2006, the day of the Grand Prix race, defendant walked around the crowded streets of downtown San Jose videotaping the buttocks of women who were wearing short skirts. Defendant’s video camera was in a nylon bag that he tilted low to the ground. The camera was set in the “on” position and the camera lens was facing upwards.
People’s Exhibit 10, a copy of defendant’s videotape, was transmitted to this court pursuant to California Rule of Court 8.224 at defendant’s request. People’s exhibits 7, 8 and 9, color pictures of the victim’s outfit, were also transmitted to the court pursuant to the same request.
At about 3:30 p.m., Jane Doe, who was working at the Grand Prix race, felt a bag bump her on the left side of her leg. She walked away. Then she felt a bag bump her on the right side of her leg. Concerned, she followed the person who bumped her: defendant. She noticed that he was following another girl who was wearing a short skirt while holding the bag in front of him. When he stopped to lean against a tree and talk on his cell phone, she found a police officer and asked him to check defendant out because she suspected he had a video camera in his bag. She stood aside and watched as the police detained him. She saw that the front part of the bag zipped open and contained something resembling a lens covered by mesh. She was shown the videotape and confirmed that her image was captured on it. She did not know defendant and did not give him permission to videotape her.
The videotape was played for the court.
On that day she was wearing a specialized outfit that consisted of a plaid skirt over a full-length one-piece spandex bodysuit. The lower part of the bodysuit had originally been a full pant suit that went all the way to the ankle, and her manager wore it that way. Jane Doe, however, had cut the legs off her bodysuit so that it fit like short shorts and covered her behind like underwear. She had no idea how much of the bodysuit she had cut off, but she was 5 feet 11 inches tall and the suit was not long enough to fit her. The bodysuit had been given to her to wear by her employer. Employees were permitted to cut the legs off because of the heat. Because the suit was made of spandex, “it kind of rode up,” and it wasn’t exactly underwear, so the employer gave her permission to cover the bodysuit with a skirt. She borrowed a skirt to wear over the bottom of the bodysuit. The skirt measured nine inches from top to bottom. She wore it pulled down below her natural waistline. She was not aware it was possible for people to see her spandex bodysuit under her skirt.
Jane Doe considered the area of her body under the skirt portion of her outfit a private area. She did not want other people to see it. That is the reason she put on the skirt.
The bottom of Jane Doe’s cut-off bodysuit under the skirt was visible to the camera’s eye.
DISCUSSION
Defendant argues his conviction for violating section 674, subdivision (k)(2) is not supported by substantial evidence because the evidence adduced at trial was insufficient to prove that Jane Doe’s subjective expectation of privacy in her underwear was reasonable under the circumstances. In support of this contention defendant first argues that the trial court’s comments indicate that it did not understand the difference between a subjective and objective expectation of privacy, and concluded that the evidence of the victim’s subjective expectation of privacy was sufficient to prove its reasonableness. Second, he argues that the photographic and videographic evidence introduced at trial demonstrates that the skirt was too short for anyone to objectively and reasonably believe that her underwear could not be seen by the general public. We disagree.
In reviewing a claim of insufficiency of the evidence on appeal, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576, quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) “An appellate court must view the evidence in the light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.) “A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] … A finding of fact must be an inference drawn from evidence rather than … a mere speculation as to probabilities without evidence.’ ” (People v. Morris (1988) 46 Cal.3d 1, 21, overruled on other points in In re Sassounian (1995) 9 Cal.4th 535, 543-545, fns. 5 & 6.) A trier of fact may rely on inferences to support a conviction only if those inferences are “of such substantiality that a reasonable trier of fact could determine beyond a reasonable doubt” that the inferred facts are true. (People v. Raley (1992) 2 Cal.4th 870, 891.) “Evidence is sufficient to support a conviction only if it is substantial, that is, if it ‘ “reasonably inspires confidence” ’ and is ‘credible and of solid value.’ ” (Ibid., citation omitted.)
Former Section 647, subdivision (k)(2) provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶] Any person who 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.” (Italics added.) Defendant’s argument assumes, and the People agree, “that section 647(k)(2) requires the victim’s expectation of privacy, however sincerely subjectively held, be reasonable.” We agree with the parties that the plain meaning of the statutory language, as well as the extant legislative history, support this interpretation of the statute.
Former subdivision (k)(2) of section 647 has been renumbered subdivision (J)(2) as of January 1, 2008. We will refer to the superseded section number because the parties do so.
Defendant appended a copy of an analysis by the Senate Committee on Public Safety dated June 8, 1999 to his opening brief and asked us to take judicial notice of it. The People did not oppose this request. We granted defendant’s request for judicial notice.
We first address defendant’s contention that the trial court did not understand or differentiate between the victim’s subjective expectation of privacy and an objectively reasonable expectation of privacy and therefore applied the wrong standard to the evidence. After the taking of evidence was completed, the court permitted the parties to argue at length. Defense counsel argued that one of the elements of a violation of the statute is the reasonableness of victim’s expectation of privacy. She argued that the skirt was very short and the victim was very tall: “What I’m saying, does she now have a reasonable expectation of privacy that her behind is not going to be seen in these circumstances [?] I don’t think anybody would have to go so far as to put something under her skirt to get the kind of shot that we saw on the videotape. [¶] I … think if I was standing behind her in a line or she walked up some stairs on a bridge, I think I would … have been able to see the same thing we see on this videotape.” The court did not agree; it responded: “Well, she did testify that she wore [the skirt] down on her hips basically, and you and I can see many people do that successfully, wear things very, very low where their rear end really isn’t exposed. So I don’t know. Having not seen her in that item, it’s a little difficult to say that it would not have covered. She said that it did cover her buttocks.” He did agree with defense counsel that he had seen the skirt and it was very short. Later, defense counsel returned to the “expectation of privacy elements,” arguing that the Grand Prix race was a public event, not a fitting room, and that the event was being filmed for viewing in Miami and New York: “If somebody’s skirt flies up, do they run and confiscate the video tapes? I mean if it was a Marilyn Monroe type of situation in that famous image where her skirt flies up, I’m just not sure this … was a circumstance under which Jane Doe had a reasonable expectation of privacy.”
In its statement of decision, the court specifically addressed defense counsel’s argument that the prosecution had not proven that the victim’s subjective expectation of privacy was reasonable under the circumstances. The court stated: “Defendant contends in this case there is insufficient evidence to find beyond a reasonable doubt Count 3 to be true…. [¶] … [¶] And the defense argues … thirdly that the victim didn’t have the reasonable expectation of privacy, which is required to be proven under the circumstances – circumstantial evidence or otherwise. [¶] … The sense that certainly one has an expectation of privacy, and that’s why they wear a skirt over undergarments, so that no one can see their undergarments, and that is just common sense. And one always has a reasonable expectation of privacy. Can’t think of any situation where they would not though somebody could find one. Underneath their clothing, underneath their outer clothing one did not view their undergarments. [¶] The fact that Marilyn Monroe’s skirt was mentioned can fly up or something doesn’t mean that Marilyn didn’t have an expectation of privacy under her skirt. It’s just that she would probably take efforts, if she wore the skirt, to hold down the skirt if the wind did make it fly up. So one can only assume that. So the third argument certainly is without merit.”
Taken as a whole, the court’s statements do not demonstrate a misunderstanding of the “privacy elements” – subjective and objective – of a section 674(k)(2) violation. The court’s comments show that its concern was not with the sincerity or veracity of Jane Doe’s stated belief that her skirt did cover her undergarments – the court clearly accepted that as true; rather, the court’s concern was with whether it is reasonable to believe that undergarments deliberately covered over by a skirt are protected as private, even if under certain circumstances the undergarments may be glimpsed, as when Marilyn Monroe’s skirt was lifted by the wind. Furthermore, the court’s earlier comments on the state of the evidence strongly suggest that the court’s understanding of the legal issue was informed by its view of the testimony before it and the inferences to be drawn from that testimony. In our view, the court’s rejection of defendant’s arguments was not based on a confusion of subjective and objective privacy concerns. Where, as here, “a judge’s statements as a whole disclose a correct concept of the law and its application, no secondary remarks should be deemed to have impeached his determination.” (People v. Cartier (1960) 54 Cal.2d 300, 313.)
Finally, we turn to defendant’s argument that the facts adduced at trial did not prove that it was objectively reasonable for Jane Doe to believe that her tiny skirt shielded her undergarments from public view. To accept defendant’s argument, we would need to find that no reasonable trier of fact could make that finding. On these facts, that is not possible. Jane Doe testified that she wore her skirt pulled down below the waist and that worn in that fashion it did cover her undergarments from general public view. The videotape did not disprove her testimony. The view of her lower buttocks and undergarments seen on the tape was taken from a vantage point below her skirt’s hem; defendant held the camera low and tilted the camera’s lens upwards so that it could see up and under a skirt, if the skirt were short enough. The fact that a small child, or a midget – or a voyeur with a low-held, up-tilted camera lens – could actually breach her privacy guard and gain a glimpse of Jane Doe’s bodysuit under her skirt, does not mean that it was objectively unreasonable for her to believe that her undergarments were private and shielded from the prying eyes of the public. The trier of fact was entitled to infer, as it evidently did, that despite its skimpiness, Jane Doe’s skirt could and did cover her undergarments from most eyes and under most circumstances, and that she was not unreasonable for believing that it did.
Insofar as we consider the circumstances attending the act of videotaping to be relevant, we reject defendant’s contention that the act of recording has no relevance to the question whether a person’s expectation of privacy is reasonable.
In this regard, we find that State v. Boyd (Wash. 2007) 155 P.3d 188 is instructive and supports our conclusion. In that case, the court of appeals upheld Washington’s voyeurism statute against a constitutional vagueness challenge. There, the defendant was a school custodian who positioned himself with a camera in such a way that he could take “upskirt” pictures of girls as they walked up the stairs. (Id. at p. 190.) The Washington statute is similar to our section 647(k)(2). It provides that a person commits the crime of voyeurism if, for the purpose of arousing or gratifying any person’s sexual desire, he or she knowingly photographs or films the intimate areas of another person without that person’s knowledge and consent and under circumstances where that person has a reasonable expectation of privacy, whether in a public or a private place. (State v. Boyd, at p. 192.) The defendant in Boyd argued that the term “intimate area” was unconstitutionally vague “because a person must intend to protect an intimate area from public view, [and] the clothing alone insufficiently gives notice of what is prohibited. For example, … a high school student and a prostitute may wear the same short skirt, but one will intend to keep her underwear hidden while the other will not.” (Id. at p. 193.) The court rejected that argument, stating: “[W]e construe the term ‘intimate areas’ in the context of the entire statute. [Citation.] The unwanted viewing of intimate areas is prohibited only when it occurs under circumstances where the person has a reasonable expectation of privacy. [Citation.] Thus, when a student dons a skirt, the scope of her expectation of privacy depends on the circumstances. If she climbs a flight of stairs, she may reasonably expect that people standing beneath her may incidentally glimpse parts of her body above the hemline. By wearing a skirt, she does not implicitly authorize others to attempt to view the hidden parts of her body. The statute simply effectuates the commonsense notion that ‘a woman who wears a skirt possesses a reasonable expectation, regardless of whether she is in a closed changing room or in a public shopping mall food court, that technology will not be used to catch a glimpse of her underwear.’ ” (Ibid.) Similarly, in this case, a rational trier of fact could have concluded that Jane Doe had a reasonable expectation that technology would not be used to catch a glimpse of her underwear. We hold that substantial evidence supports defendant’s conviction under section 647, subdivision (k)(2).
CONCLUSION
The trial court’s comments do not demonstrate that it conflated the concepts of subjective and objective expectations of privacy and convicted defendant under an erroneous view of the law. Substantial evidence supports his conviction under section 647, subdivision (k)(2).
DISPOSITION
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J.Duffy, J.