In re M.H.
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
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
Following a contested adjudication hearing, the court found true the allegation that M.H. violated
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
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 (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 (Hernandez).)
M.H.‘s contention that
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
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
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
M.H. gave police his smartphone and consented to a search of its contents. However, police were unable to recover the video. Later, with Erik‘s assistance—Erik saw the video on M.H.‘s smartphone at the football game—the district attorney‘s office prepared a re-creation of the video, which the court received into evidence without objection.
DISCUSSION
I. THE COURT‘S TRUE FINDING IS SUPPORTED BY SUBSTANTIAL EVIDENCE
M.H. first contends that insufficient evidence supports the juvenile court‘s finding that he violated
A. Standard of Review
When assessing a challenge to the sufficiency of the evidence supporting a true finding, we apply the substantial evidence standard of review, under which we view the evidence “in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) We do not reweigh
B. Matthew‘s Expectation of Privacy
1. Reasonable expectation of privacy in a public restroom stall
A violation of
To begin with,
The bathroom, including a public bathroom stall, is perhaps the epitome of a private place. Contrary to M.H.‘s assertions, for over 50 years California case law has ensured that persons in a public toilet may reasonably expect they are not being secretly watched. For example, in Britt v. Superior Court (1962) 58 Cal.2d 469 (Britt), a police officer stationed himself above the ceiling of a department store‘s men‘s room, where he
The Supreme Court‘s subsequent decision in People v. Triggs (1973) 8 Cal.3d 884 (Triggs), disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, footnote 4, is even more on point because it involved surveillance of conduct inside a public restroom stall with no door. The police officers in Triggs entered the plumbing access area of a city park men‘s room and used an overhead vent to observe oral copulation within a doorless stall. (Id. at p. 888.) Rejecting the argument that a person in a doorless public bathroom stall has no expectation of privacy, the court stated, “The expectation of privacy a person has when he enters a restroom is reasonable and is not diminished or destroyed because the toilet stall being used lacks a door.” (Id. at p. 891.)
M.H. seeks to distinguish Britt and Triggs on the grounds that the observations in both those cases were made directly into a bathroom stall, whereas M.H. was viewing Matthew‘s conduct outside the stall, in the common bathroom area. However, in Triggs, the court stated that the reasonable expectation of privacy in a public bathroom stall
In his reply brief, M.H. cites the following cases as standing for the proposition there is no expectation of privacy when using a doorless public restroom stall: People v. Crafts (1970) 13 Cal.App.3d 457; People v. Heath (1968) 266 Cal.App.2d 754; People v. Roberts (1967) 256 Cal.App.2d 488; People v. Maldonado (1966) 240 Cal.App.2d 812; People v. Hensel (1965) 233 Cal.App.2d 834; People v. Young (1963) 214 Cal.App.2d 131; and People v. Norton (1962) 209 Cal.App.2d 173. However, in Triggs, the Supreme Court cited these intermediate appellate court opinions—not with approval, as M.H. suggests—but rather with disapproval to the extent they incorrectly state that an occupant of a doorless restroom stall has no reasonable expectation of privacy with respect to conduct that could be viewed from a common area in the bathroom. (Triggs, supra, 8 Cal.3d at pp. 890-891.)5
M.H. also relies on Tily B., supra, 69 Cal.App.4th 1, a case involving an adult entertainment business, where a city ordinance required an attendant to be stationed in the restroom “to prevent specified activities.”6 (Id. at p. 21.) Rejecting an argument that the
M.H.‘s reliance on In re Deborah C. (1981) 30 Cal.3d 125 is also unavailing. There, a juvenile took several department store items and a large plastic bag into a closed fitting room. A security officer stationed outside the room saw the defendant stuff merchandise into her bag from the two-foot gap above and below the fitting room door. (Id. at p. 130.) The court concluded the defendant had no reasonable expectation of privacy with regard to these events in plain view. However, Deborah C. is also off point because it does not involve secretly recording a bathroom video with the intent to disseminate the recording on social media.
2. Privacy expectations can be reasonable, even if they are not absolute
Even if Matthew might otherwise have had a reasonable expectation of privacy in the bathroom stall, M.H. contends Matthew “waived that expectation” by “making loud obscene noises” and by “deliberately attracting public attention by making loud masturbation noises.” We disagree. There are degrees and nuances to expectations of privacy. The possibility of being seen or overheard by others in the bathroom does not
The California Supreme Court has held that a person may have a reasonable expectation of privacy against electronic recording, even if the person expects conduct or conversation to be overheard by others. For example, in Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907 (Sanders), the plaintiff was employed as one of many telepsychics who gave readings to customers who telephone the employer‘s 900 number. Each telepsychic took his or her calls in a three-sided cubicle, of which there were about 100 in the large work area. (Id. at pp. 911-912.) The defendant, an investigative reporter with American Broadcasting Company, obtained employment as a telepsychic and secretly video and audiotaped her conversations with coworkers using a small hidden camera and microphone. (Id. at p. 912.) The plaintiff in Sanders sued for violation of privacy. Much like M.H. argues Matthew could have no reasonable expectation of privacy because his groaning could be heard by others in the bathroom, in Sanders the defendant argued there could be no reasonable expectation of privacy because the workplace conversations could be overheard by others in the shared space. (Id. at p. 911.) The court rejected that argument because there is a vast distinction between being overheard, and being surreptitiously recorded.
In finding a reasonable expectation of privacy, the Supreme Court in Sanders explained, “[P]rivacy . . . is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that privacy
The Sanders court held a person may reasonably expect his or her conversations will not be electronically recorded, even though he or she had no reasonable expectation the conversation would not be overheard when it was made. The court concluded, “In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants’ coworkers.” (Sanders, supra, 20 Cal.4th at p. 911.) The court added, “[T]he possibility of being overheard by coworkers does not, as a matter of law, render unreasonable an employee‘s expectation that his or her interactions within a nonpublic workplace will not be videotaped in secret by a journalist.” (Id. at p. 923.) This is because ““‘secret monitoring denies the speaker an important aspect of privacy of communication—the right to control the nature and extent of the firsthand dissemination of his statements.“‘” (Id. at p. 915.)
Applying Sanders, courts have rejected the all-or-nothing approach to privacy that M.H. advocates in this case—and instead have examined the physical area where the act occurred, as well as the nature of the activities commonly performed in such places to determine the contours of a reasonable expectation of privacy. For example, in Hernandez, supra, 47 Cal.4th 272, the Supreme Court considered privacy expectations in a lawsuit where employees sued their employer for installing secret surveillance cameras
In Hernandez, the court was particularly concerned with the “intrusive effect” of “hidden cameras” in “settings that otherwise seem private.” (Hernandez, supra, 47 Cal.4th at p. 291.) The court concluded that such recording “denies the actor a key feature of privacy—the right to control the dissemination of his image and actions. [Citation]. We have made clear that 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.“‘” (Ibid.)
Shulman, supra, 18 Cal.4th 200, is also instructive. There, the Supreme Court held that an accident victim could have a reasonable expectation of privacy at the accident scene and in the interior of a rescue helicopter, even though she lacked complete privacy due to the presence of medical professionals. (Id. at pp. 237-238.) The court stated, “[T]he last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording
Sanders, Shulman, and Hernandez demonstrate that even if Matthew intended a limited number of people to hear and partially see him in the bathroom, he did not waive or forgo the right to expect he would not be secretly recorded in a video distributed over social media. Adolescence was difficult enough before there were smartphones and social media. The last thing a high school student in a bathroom stall should have to worry about is that someone may be secretly recording everything done and uttered there for the possible entertainment of fellow students. (See Shulman, supra, 18 Cal.4th at p. 238.) As the Supreme Court stated in Hernandez, “[T]he ‘unblinking lens’ can be more penetrating than the naked eye with respect to ‘duration, proximity, focus, and vantage point.“” (Hernandez, supra, 47 Cal.4th at p. 291section 647(j)(1) can be violated just by watching with the naked eye, the statute also includes situations like the one here—where privacy intrusions consist of the indignity and embarrassment of being electronically recorded in a bathroom stall. Although anyone present in the bathroom might tell others the sights and sounds observed there, that does not mean Matthew took the risk that what was heard and seen would be disseminated by a recording “in full living color” on social media. (Sanders, supra, 20 Cal.4th at p. 915.)
C. Section 647(j)(1) Does Not Incorporate the Tort of Invasion of Privacy
M.H. contends
However, M.H. not only failed to make this argument in the juvenile court, his attorney actually argued the contrary position there. When the court asked M.H.‘s lawyer whether it was reasonable for a bathroom user to expect not to be videoed, counsel replied, “I think the law of torts cover that, but I don‘t think this statute covers that. I definitely think the law of torts encompasses those issues, but we‘re talking about a crime here of the Penal Code.” At another point in the hearing, M.H.‘s lawyer unequivocally asserted, “This is not a tort case.”
“A fundamental tenet of our system of justice is the well-established principle that a party‘s failure to assert error or otherwise preserve an issue at trial ordinarily will result in forfeiture of an appeal of that issue.” (People v. McKinnon (2011) 52 Cal.4th 610, 636.) These ordinary rules of forfeiture take on added significance here, because M.H. is not only attempting to assert an argument for the first time on appeal, but that new argument is inconsistent with the position he took in the trial court. It is, therefore, particularly inappropriate for M.H. to complain on appeal that the court erred in not adopting tort elements into
In any event, even if we were to consider whether
Contrary to M.H.‘s assertions, the plain language of
Moreover,
Additionally, we have examined the legislative history surrounding the 1994 enactment of
II. FIRST AMENDMENT CLAIM FORFEITED
For the first time on appeal, M.H. contends the finding he violated
We decline to exercise our discretion to consider M.H.‘s new claim of constitutional error in this case because we disagree it raises only a pure question of law. Even M.H.‘s own argument makes a fact-based analysis necessary. For example, M.H. argues his recording of Matthew in the bathroom stall was “a matter of concern to his school community“, a matter of “public interest,” and constituted “news gathering.” He contends Matthew was engaged in an unlawful act. Not surprisingly, the Attorney General contends exactly the opposite, stating the evidence does not show Matthew committed any unlawful act, and M.H.‘s conduct was designed and intended not to report a crime or other newsworthy event, but rather to invade Matthew‘s privacy to ridicule, embarrass, and deprive him of dignity in front of his peers. M.H. never reported the bathroom behavior to school authorities or law enforcement until after Matthew committed suicide. In the absence of a complete factual record made in the trial court on such issues, it would be imprudent to decide constitutional issues for the first time on appeal.
The order is affirmed.
NARES, Acting P. J.
WE CONCUR:
O‘ROURKE, J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
THE COURT:
The opinion in this case filed June 21, 2016, was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), the request pursuant to California Rules of Court, rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c) and
NARES, Acting P. J.
Copies to: All parties