People v. Johnson
184 Cal. Rptr. 3d 850
Cal. Ct. App.2015Background
- Defendant Mylyn C. Johnson was convicted after police seized numerous surreptitious “up-skirt” photos/videos from his devices; 12 counts charged under Pen. Code § 647(j)(2) for secretly filming an “identifiable person” under/through clothing to gratify sexual desires.
- Some prosecution videos showed victims’ faces or other identifying details; five challenged-count videos (counts 8, 9, 11, 14, 15) lacked clear facial images and showed only legs, shoes, purses, backs of heads, or clothing.
- At trial the prosecutor argued “identifiable person” meant simply a human being; defense argued it required the victim be capable of being identified from the recording (or other evidence).
- Jury convicted on all § 647(j)(2) counts; defendant moved for new trial on several counts and appealed the sufficiency of identifiability, failure to instruct the jury sua sponte on the meaning of “identifiable person,” and ineffective assistance for not objecting to the prosecutor’s definition.
- The Court of Appeal construed “identifiable person” to mean a person who is capable of identification or recognition when all of the available evidence is considered (including identification by the victim or by extrinsic evidence), reversed five convictions for prejudicial instructional error, but held the evidence was sufficient to permit retrial.
- The court also corrected presentence custody credits (from 508 to 460 days) and remanded to permit the trial court to ensure proper penalty assessments and an ability-to-pay determination for certain fines.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of “identifiable person” under § 647(j)(2) | Prosecution (briefly) urged a broad meaning (distinguishable person / human being); on appeal conceded too broad | Victim must be capable of identification from the recording (e.g., face or unique feature) | “Identifiable” means capable of being identified or recognized when all evidence is considered (including victim or extrinsic evidence); not limited to the defendant’s recording alone. |
| Who must be able to identify? (whose recognition counts) | Anyone who could recognize the person | Must be someone unacquainted with the victim (i.e., the recording itself must allow third-party ID) | Identification may be reasonably probable by someone, including the victim, acquaintances, law enforcement, or eyewitnesses. |
| Whether identifiability must be shown from the recorded image alone | People argued other evidence could be considered in practice; prosecution relied on all evidence | Defense argued identifiability should derive from the recording itself | Court held identifiability is judged from all available evidence, not solely the defendant’s images. |
| Trial court’s duty to define “identifiable person” sua sponte | No objection below; prosecution argued statutory language sufficed | Defense argued the term needed clarification because parties disputed its meaning | Court held trial should have given a clarifying instruction defining “identifiable person” (failure was prejudicial as conflicting counsel arguments could mislead jury); convictions reversed as to the five challenged counts. |
Key Cases Cited
- People v. Ramirez, 45 Cal.4th 980 (Cal. 2009) (statutory construction—give words usual and ordinary meaning; consider entire statutory scheme)
- People v. Hudson, 38 Cal.4th 1002 (Cal. 2006) (trial court’s duty to instruct sua sponte when statutory term lacks plain meaning)
- People v. Mayfield, 14 Cal.4th 668 (Cal. 1997) (instruction must be a reliable guide; court must clarify ambiguous statutory terms)
- People v. Perez, 35 Cal.4th 1219 (Cal. 2005) (reversal required when jury is presented with legally inadequate theory unless guilt on a proper theory is certain)
- People v. Hamed, 221 Cal.App.4th 928 (Cal. Ct. App. 2013) (breakdown of penalty assessments applicable to statutory fines)