People v. LyonPeople v. Lyon
APPEAL from a judgment of the Superior Court of Sacramento County, Robert M. Twiss, Judge. Affirmed.
* Pursuant to
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Darren K. Indermill, Supervising Deputy Attorney General, John W. Powell, Deputy Attorney General for Plaintiff and Respondent.
This is an invasion of privacy case involving the clandestine videotaping of prostitutes at a private residence. A jury found defendant Michael J. Lyon guilty of six counts of eavesdropping on or recording confidential communications (
Defendant argues on appeal that prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications during sexual encounters at a client‘s residence, and therefore the trial court erred in denying his motion to dismiss on those grounds. He further contends reversal is required due to instructional error, unlawful prosecution under the Williamson rule, and an unlawful probation search.
In the published portion of our opinion, we address and reject all but the final contention, which we reject in the unpublished portion of our opinion. We affirm the judgment.
Factual Summary
In view of the issues raised on appeal, we briefly summarize the pertinent facts underlying defendant‘s convictions. We reference additional details throughout the opinion when necessary.
Defendant is a repeat offender. In March 2011 he pleaded guilty to four counts of eavesdropping on or recording confidential communications. (
In early October 2014 a search of numerous electronic devices seized from defendant‘s residence revealed that, in 2013 and 2014, defendant had engaged in sexual relations with prostitutes at his residence and had secretly videotaped these encounters. The women were not aware that they were being recorded and never gave defendant permission to do so. The women learned about the recordings for the first time after the search. The recordings were played at trial; some of them captured both words and real time images while others only captured real time images.
Procedural Background
In November 2015 the People filed an information charging defendant with 16 counts of eavesdropping on or recording confidential communications. (
A jury trial commenced in March 2018. Following the presentation of evidence, the prosecutor moved to dismiss one
I
Motion to Dismiss
Defendant first contends the trial court erred in denying his motion to dismiss the eavesdropping charges. He argues that reversal is required because prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications during sexual encounters at a client‘s residence. We disagree.
A. Additional Information
In December 2016 defendant filed a motion to dismiss the
After hearing arguments from counsel, the trial court denied defendant‘s motion in June 2017. The court expressly declined to find “that a prostitute is stripped of . . . their right to privacy merely because they are engaging in [prostitution-related] activity.”2 In
January 2018, after the matter was assigned to a different judge for trial, defendant filed a second motion to dismiss the
B. Applicable Legal Principles
“In 1967, the Legislature enacted
A communication is confidential under
Where, as here, the material facts are undisputed, and the question is how to apply statutory language to a given factual context, the reviewing court applies a de novo standard of review. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175; McMillin-BCED/Miramar Ranch North v. County of San Diego (1995) 31 Cal.App.4th 545, 553.) An appellate court is free to draw its own conclusions of law from undisputed facts. (Pueblos Del Rio South v. City of San Diego (1989) 209 Cal.App.3d 893, 899.)
We decline defendant‘s invitation to hold that prostitutes have no objectively reasonable expectation of privacy in their communications during sexual encounters at a client‘s residence, regardless of the particular circumstances of the interaction. The plain text of
We find unavailing defendant‘s reliance on People v. Nazary (2010) 191 Cal.App.4th 7274 and Hernandez v. Hillsides Inc. (2009) 47 Cal.4th 272 (Hernandez). In Nazary the appellate court considered the privacy expectations of a gas station manager with regard to a videotape obtained by hidden cameras in the manager‘s office. (Nazary, at pp. 732, 744.) The Nazary court held that the manager had no reasonable expectation of privacy in a videotaped confrontation between himself and the owners of the gas station, and therefore the communications during that confrontation were not “confidential communications” within the meaning of
including the interior of the minimart, the outside of the premises, and the gas pump islands and outside pay machines. (Id. at pp. 732, 747.) The court further noted that defendant was aware that he was under suspicion of improper conduct, and that cameras had been installed in the manager‘s office. (Id. at p. 747.)
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.)
There is nothing in Nazary or Hernandez that persuades us that prostitutes, as a matter of law, have no reasonable expectation of privacy in their communications during sexual encounters at a client‘s residence. Both Nazary and Hernandez are readily distinguishable from the circumstances presented here. Indeed, Hernandez undermines rather than supports defendant‘s position. Neither case involved the videotaping of sexual relations at a private residence. Generally speaking, a person‘s residence is a private setting and intimate acts that occur in that setting are inherently personal acts, which supports a reasonable expectation of privacy in those acts. This expectation of privacy is not relinquished or forfeited simply because a prostitute is involved.
Finally, we find no merit in defendant‘s attempt to analogize the circumstances of Nazary to the facts of this case. Here, the videotaping involved the
We have reviewed the abundant federal and out-of-state authority cited by defendant. Nothing in those cases persuades us that a different result is required. The cases relied on by defendant are factually distinguishable and inapposite. As one example, defendant claims that his position is supported by a “factually similar” case issued by the Supreme Judicial Court of Maine, State v. Strong (2013) 60 A.3d 1286. But that case involved privacy expectations of individuals who entered and disrobed in various places (a residence, studio, and business office) where a prostitute was known to conduct her business. (Id. at pp. 1287-1288, 1291.) The Strong court concluded that these individuals did not, as matter of law, have an objectively reasonable expectation that they would not be recorded by video surveillance. The court stated: “Places of prostitution and people who knowingly frequent them to engage a prostitute are not sanctioned by society. Accordingly, it is objectively unreasonable for a person who
knowingly enters a place of prostitution for the purpose of engaging a prostitute to expect that society recognizes a right to be safe from surveillance while inside.” (Id. at p. 1291.) Strong is clearly distinguishable from the facts of this case. Further, unlike the California Constitution, the Constitution of Maine does not expressly include the right to privacy as an inalienable right, although it includes each of the other rights listed by California in the two states’ respective opening sections. (
Likewise, defendant‘s reliance on Minnesota v. Carter (1998) 525 U.S. 83 is misplaced. That case involved the question of whether people, who were present at another‘s apartment for the sole purpose of packaging cocaine, had an expectation of privacy in the apartment that the Fourth Amendment protects. (Id. at pp. 85-86, 89-91.) In Carter, a police officer investigating a tip from a confidential informant looked into the window of a ground-floor apartment through a gap in the blinds and observed people putting white powder into bags. (Id. at p. 85.) The defendants, who did not live in the apartment but had come to engage in a narcotics transaction, moved to suppress the evidence derived from the officer‘s observations. (Id. at p. 86.) The United States Supreme Court held that the defendants had no reasonable expectation of privacy in the apartment because (1) they were in the apartment only for a short period of time, (2) they were there solely to conduct a commercial transaction (to divide a quantity of cocaine into bags), and (3) they had no previous connection or relationship with the lessee. (Id. at pp. 90-91.) Contrary to defendant‘s contention, the prostitutes in this case are not “situated identically” to the defendants in Carter with respect to their “lack of any reasonable expectation of privacy.” Unlike Carter, this case does not involve privacy expectations of a homeowner‘s guest under the Fourth Amendment in the context of a
have an objectively reasonable expectation of privacy in their communications during these encounters. On this question, Carter is factually and legally inapposite.
II
Alleged Instructional Error
Defendant contends the trial court erred in failing to instruct the jury on an element of the
A. Additional Background
Prior to trial, the trial court advised the parties that there were no pattern jury instructions for the charged offenses and provided them with draft jury instructions on the elements of the offenses. The court directed the parties to review the draft instructions and invited them to submit proposed instructions related to the elements of the offenses. In response, defendant submitted a number of proposed instructions, including a pinpoint instruction pertaining to the
“As it relates to the issue of expectation of privacy[,]
“The jury must conclude whether or not there is a privacy right[.]
“The fact one is an employee and/or employer does not automatically mean that there is an expectation of privacy.
“Just because the circumstances involve sex doesn‘t mean there automatically is a reasonable expectation of privacy[.]”
“You may consider this [sic] circumstances of the sexual activity in determining whether or not there is an expectation of privacy. For example, you may consider whether or not the sexual activity is between a husband
and wife, boyfriend and girlfriend and/or intimate partners or is the product of a commercial transaction. “These are all factors you may take into consideration when deciding whether or not the parties had a reasonable expectation of privacy.
“What weight, if any, to give those circumstances or facts is for the jury to decide.” (Capitalization omitted.)
At the hearing on jury instructions following the presentation of evidence, the trial court stated that it would not instruct the jury with defendant‘s proposed pinpoint instruction because it was argumentative and duplicative of other instructions.
Thereafter, the jury was instructed on the
“The defendant is charged in counts one, four through nine, eleven, twelve, thirteen, fifteen and sixteen with eavesdropping in violation of
Penal Code § 632(a) .“To prove that the defendant is guilty of this crime, the People must prove that:
“1. The defendant intentionally and without consent of all parties to a communication;
“2. Used an electronic amplifying or recording device;
“3. To eavesdrop upon or record the confidential communication.
“‘Confidential communication’ means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties to the communication, but excludes a communication made in a public gathering or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”
“The jury must determine whether or not the circumstances of the recording reasonably indicate that a party to the communication desired it to be confined to the parties to the communication.”
In a separate instruction, the jury was further instructed on the
“As to Counts 1, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, and 16, which allege violations of Penal Code section 632(a) , if the evidence raises a reasonable doubt as to whether or not the recording occurred under circumstances to reasonably create an expectation that any party to the communication desires it to be confined to the parties to that communication, you must find the defendant not guilty.[¶] . . . [¶]
“With regard to Counts 1, 4, 5, 6, 7, 8, 9, 11, 12, 13, 15, and 16, the contents of a communication need not be of a certain type or subject matter to be considered confidential. The communication can be about anything so long as it occurs under circumstances that reasonably indicate that any party to the communication desires it to be confined to the parties involved in the communication, and can reasonably expect that it is not being overheard or recorded.”6
B. Applicable Legal Principles
“The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense” (People v. Merritt (2017) 2 Cal.5th 819, 824) and all ” ‘general principles of law that are closely and openly connected with the facts before the court and necessary for the jury‘s understanding of the case’ ” (People v. Simon (2016) 1 Cal.5th 98, 143).
” ‘Under appropriate circumstances, “a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case . . . .” ’ ” (People v. Whisenhunt (2008) 44 Cal.4th 174, 220.) Pinpoint instructions ” ‘relate particular facts to a legal issue in the case or “pinpoint” the crux of a defendant‘s case.’ ” (People v. Gutierrez (2009) 45 Cal.4th 789, 824People v. Hughes (2002) 27 Cal.4th 287, 362.) However, a trial court may properly refuse to give a pinpoint instruction that “incorrectly states the law, is argumentative, duplicative, or potentially confusing [citation], or if it is not supported by substantial evidence.” (People v. Moon (2005) 37 Cal.4th 1, 30.)
C. Analysis
Defendant argues the trial court committed instructional error because it failed to inform the jury that “the prosecution must prove and the jury must determine whether the communication was subject to a reasonable expectation of privacy based on the
circumstances of the interaction.” He asserts that “to accurately convey the elements that the jury had to find to support a guilty verdict [on the
” ‘[T]he language of a statute defining a crime . . . is generally an appropriate and desirable basis for an instruction, and is ordinarily sufficient when the defendant fails to request amplification.’ ” (People v. Estrada (1995) 11 Cal.4th 568, 574; People v. Failla (1966) 64 Cal.2d 560, 565.) “[I]f the instruction as given is adequate, the trial court is under no obligation to amplify or explain in the absence of a request that it do so.” (People v. Mayfield (1997) 14 Cal.4th 668, 778, overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) “Even if such an instruction ‘cannot be commended as a full or clear exposition of the meaning of the section of the Code, still it cannot be said that it was error for the court in giving the law to conformed to the language of the Code, and to have omitted what that Code itself omits.’ ” (People v. Reed (1952) 38 Cal.2d 423, 430.) Here, the trial court‘s instruction on the elements of the
communication.” Defendant, for his part, did not request amplification of the instruction on the elements of the
We also reject defendant‘s contention that the trial court erred in failing to instruct the jury with his proposed pinpoint instruction regarding certain factors the jury could consider in deciding whether the prostitutes in this case had a reasonable expectation of privacy in their communications. The jury was adequately instructed on how it should decide whether a communication was confidential for purposes of
specific aspects of the circumstances surrounding the communications at issue. For example, the argumentative portions of the proposed instruction invited the jury to consider other types of relationships, such as “husband and wife, boyfriend and girlfriend and/or intimate partners,” and compare them to this case. (People v. Ledesma (2006) 39 Cal.4th 641, 720 [an instruction
III
Unlawful Prosecution - Williamson Rule
Defendant contends reversal is required because he was unlawfully prosecuted under
A. The Williamson Rule
“Under the Williamson rule, if a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. In effect, the special statute is interpreted as creating an exception to the general statute for conduct that otherwise could be
prosecuted under either statute.” (People v. Murphy (2011) 52 Cal.4th 81, 86; In re Williamson, supra, 43 Cal.2d at p. 654.)
“[T]he Williamson rule applies when (1) ‘each element of the general statute corresponds to an element on the face of the special statute’ or (2) when ‘it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute.’ [Citation.] In its clearest application, the rule is triggered when a violation of a provision of the special statute would inevitably constitute a violation of the general statute.” (People v. Murphy, supra, 52 Cal.4th at p. 86.) If the Williamson rule applies, “the prosecution lacks power to prosecute under the general statute where the alleged facts parallel the acts proscribed by the more specific statute.” (People v. Cockburn (2003) 109 Cal.App.4th 1151, 1158.)
B. Analysis
The disorderly conduct offense that currently appears in
camera or other similar device to secretly record a person in a state of full or partial undress in certain specified locations and other areas where a person has a reasonable expectation of privacy. This provision is intended to protect the visual privacy of persons in various states of undress. (Hernandez, supra, 47 Cal.4th at p. 292.) By contrast, the text of
IV
Probation Search
Defendant contends his Fourth Amendment rights were violated when the electronic devices seized during the probation search of his residence were searched. He argues that no reasonable law enforcement officer could have believed his probation search condition justified the warrantless search of his electronic devices, since the condition makes no mention of electronic devices. We disagree.
A. Additional Information
In March 2011 defendant was placed on probation for a term of five years with various terms and conditions, including that he “submit his person, property and automobile and any object under [his] control to search and seizure . . . by any law
enforcement officer and/or Probation officer, at any time of the day or night, with or without his consent, with or without a warrant.” In early October 2014, probation officers conducted a probation search of his residence after receiving an anonymous tip that he was regularly in contact with prostitutes and his bedroom “contains a lot of illegal activity,” most of which is captured on hidden cameras. During that search, the officers seized numerous electronic devices, including a camcorder, computers, external hard drives, flash drives, cameras, cell phones, and memory cards.
In December 2016 defendant filed a motion to suppress the evidence obtained from his electronic devices. The People opposed the motion, arguing that the search was lawful because it was based on a valid probation condition, was not arbitrary or capricious, and was based on legitimate law enforcement purposes and the rehabilitative and reformative purpose of defendant‘s probation. In reply, defendant argued, among other things, that the warrantless search was unlawful under Riley v. California (2014) 573 U.S. 373, which held that the search incident to arrest exception to the warrant requirement does not apply to searches of a cell phone seized from an arrestee (id. at p. 403). In making this argument, defendant noted that his search condition does not expressly allow searches of electronic devices. Defendant additionally argued that the probation search was unlawful under the California Electronic Communications Privacy Act (
In June 2017 the trial court heard argument and denied defendant‘s motion to suppress. Several weeks later, defendant filed a motion for reconsideration, asking the trial court to reconsider its ruling in light of In re I.V. (2017) 11 Cal.App.5th 249. The
trial court denied the motion, finding that it was procedurally improper and, in any event, failed on the merits.10
B. Applicable Legal Principles
” ‘The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.’ ” (People v. Macabeo (2016) 1 Cal.5th 1206, 1212.) ” ‘In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’ [Citation.] The burden is on the People to establish an exception applies.” (Id. at p. 1213.)
A probation search is one such exception, because a probationer consents to the waiver of his Fourth Amendment rights in exchange for the opportunity to avoid service of a state prison term, as long as the search is not undertaken for harassment or for arbitrary or capricious reasons. (People v. Bravo (1987) 43 Cal.3d 600, 608-610 (Bravo).)
“Generally speaking, conditions of probation ‘are meant to assure that the probation serves as a period of genuine rehabilitation and that the community is not harmed by the probationer‘s being at large. [Citation.] These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.’ [Citation.] For example, probation conditions authorizing searches ‘aid in deterring further offenses . . . and in monitoring compliance with the terms of probation.’ [Citations.] By allowing close supervision of probationers, probation search conditions serve to promote rehabilitation and reduce recidivism while helping to protect the community from potential harm by probationers.’ ” (People v. Olguin (2008) 45 Cal.4th 375, 380.)
When considering a trial court‘s ruling on a motion to suppress, we defer to the trial court‘s factual findings, express and implied, that are supported by substantial evidence. We independently apply the law based on those facts. (People v. Suff (2014) 58 Cal.4th 1013, 1053Bravo, supra, 43 Cal.3d at pp. 606-607.) “A search conducted pursuant to a valid consent does not violate the Fourth Amendment unless the search exceeds the scope of the consent.” (Id. at p. 605.)
C. Analysis
We conclude the trial court properly denied defendant‘s motion to suppress. At the time of the challenged search, a reasonable, objective, person would have understood that a search of defendant‘s electronic devices fell within the scope of his general search condition given the nature of defendant‘s prior convictions. Defendant was placed on probation in 2011 after pleading guilty to eavesdropping on or recording confidential communications based on the secret videotaping of prostitutes at his residence. As a condition of his probation, he agreed to a general search term, which subjected him to warrantless searches of his “person, property and automobile.” The electronic devices that were searched in this case were seized from defendant‘s residence in October 2014 after the probation department received an anonymous tip suggesting that he was, again, secretly videotaping prostitutes at his residence. On this record, the probation condition under which defendant agreed to “submit” his “property” to “search and seizure” by probation officers “with or without his consent, with or without a warrant” included the electronic devices seized from his residence.
Our conclusion is supported by People v. Sandee (2017) 15 Cal.App.5th 294 (Sandee). In that case, a prosecution for a drug offense committed while on probation, a law enforcement officer stopped the defendant after she left a house under surveillance
for drug activity. After confirming with dispatch that she was on searchable probation, the officer searched her cell phone and found text messages possibly related to narcotics sales. (Id. at p. 298.) The appellate court upheld the trial court‘s denial of the defendant‘s motion to suppress the text messages, rejecting her argument that the general probation search condition allowing authorities to search her “property” and “personal effects” did not extend to cell phone data. (Ibid.) In doing so, the court applied the objective test of Bravo, supra, 43 Cal.3d at pages 606-607 and found that at the time the search was conducted, a “reasonable, objective person” would have understood that a search of the phone fell within the scope of the general search condition in the defendant‘s probation orders. (Sandee, at pp. 301-302Id. at p. 302.)
The timing of the search was essential to the result in Sandee. (Sandee, supra, 15 Cal.App.5th at p. 301.) The Sandee court rejected the contention that the cell phone evidence should have been suppressed under the ECPA, which went into effect after the search but prior to the suppression hearing, and prevents a government entity from accessing ” ‘electronic device information by means of physical interaction or electronic communication with the electronic device’ ” absent certain enumerated statutory exceptions, including the specific consent of the owner of the device or ” ‘if the device is seized from an authorized possessor of the device who is subject to an electronic device search as a clear and unambiguous condition of probation, mandatory supervision, or pretrial release.’ ” (Id. at pp. 304-306 probation orders.” (Id. at p. 305.) Therefore, the court concluded that, although it may have been reasonable “after the ECPA became effective[] for a law enforcement officer conducting a search to interpret a general probation search condition authorizing a warrantless search of the probationer‘s property as excluding searches of the probationer‘s electronic device information, such as cell phone data, we see no basis for a reasonable person to have reached that conclusion prior to the ECPA.” (Ibid.) The Sandee court rejected the defendant‘s reliance on United States v. Lara (9th Cir. 2016) 815 F.3d 605, which held that a probation condition authorizing search of ” ‘person and property, including any residence, premises, container or vehicle under [his] control’ ” did not include cell phone data (id. at p. 610). (Sandee, supra, 15 Cal.App.5th at pp. 302-303Lara was not persuasive because the Ninth Circuit “did not follow the approach normally employed by the California Supreme Court in assessing the validity of a search conducted pursuant to a probation search condition, under which the probationer is understood to have consented to all searches within the scope of the probation search condition, as interpreted on an objective basis” (Sandee, at p. 302) as long as they are not “undertaken in a harassing or unreasonable manner” (id. at p. 303, fn. 6). The Sandee court acknowledged Riley but concluded there was nothing in that case to suggest that cell phones “should not be understood as a type of personal property” within the scope of a probation search. (Id. at p. 302, fn. 5.)11 Finally, the Sandee court declined to follow I.V., which held that a general probation condition authorizing searches of “property,” reasonably construed, applied only to tangible property, not electronic data. The court found I.V. distinguishable because the search condition in that case was imposed after the ECPA took effect. (Sandee, supra, 15 Cal.App.5th at p. 306; see In re I.V., supra, 11 Cal.App.5th at p. 262 [search condition authorized warrantless searches of I.V.‘s ” ‘person, property, [and] vehicle’ “].) The Sandee decision supports our conclusion that at the time of the challenged search, a reasonable, objective person would have understood that a search of defendant‘s electronic devices fell within the scope of his general search condition. Accordingly, we find no error in the trial court‘s denial of defendant‘s motion to suppress. DISPOSITION The judgment is affirmed. /s/ Duarte, J. We concur: /s/ Mauro, Acting P. J. /s/ Murray, J.
Notes
“As to counts 2, 3 and 10, which allege violations of
Penal Code section 647(j)(3)(A) , if the evidence raises a reasonable doubt as to whether or not the complaining witness had a reasonable expectation of privacy, you must find the defendant not guilty.[¶] . . . [¶]
“With regard to counts 2, 3 and 10, a person does not forfeit their reasonable expectation of privacy based solely on the fact that they engaged in an act of prostitution, nor do they automatically have an expectation of privacy when they engage in an act of prostitution.”