In what the California Court of Appeals called a “case of
extreme stalking”, Jose Moreno was convicted of “19 felonies and two
misdemeanors, . . . sentenced to 19
years four months in prison and required to register as a sex offender
under [California] Penal Code section 290.006.” People
v. Moreno, 2014 WL 6809702 (2014).
He appealed, arguing, among other things, that “there was insufficient
evidence of two counts of wiretapping (counts 14 and 15)”. The court begins its opinion by explaining that Tomasa
Duenas met Moreno through
the social network My Space.
They became a couple in April 2007; she lived in Sacramento and [Moreno] was in
Berkeley. In May 2009, [he] moved to New York to complete a master's degree at
Columbia University. Duenas broke up with [Moreno] in January 2010 because she
could not see the relationship going anywhere. They stayed in touch
and had a cordial relationship.
Around February or March, she decided
to give [Moreno] another chance. He came to visit her at her residence in
March. During that visit, without her knowledge, he installed two spyware
programs on her computer. The first, Spector Pro, recorded computer activity
such as e-mail, chats, instant messaging, and websites visited. The second,
eBlaster, e-mailed the records of the computer activity to a designated
address. The activity reports were e-mailed to [Moreno].
In April, [he] insisted on coming out
to help Duenas move. He gave her a gift, a wireless Internet router. He set it
up, providing the router name, East Oakland, and the password. Duenas had
Internet service through Comcast; the wireless router connected to the modem by
cable. [Moreno] graduated in May and returned to Sacramento. He stayed with
Duenas a few days a week; the rest of the time he stayed with his family in
Watsonville. On July 16, they argued and broke up.
On July 23, Duenas noticed her tickets
to a concert were missing from her apartment, and thought [Moreno] had taken
them. She sent him a text message, asking if he had a way to get in her
apartment. She replaced the tickets and went to the concert. [He was at the
concert, and texted her with a specific dedication before a particular song.
The police later found a photograph of Duenas's calendar, taken July 23, in [his]
possession.
A few days later, Duenas returned home
from work early and found [Moreno] in her bedroom. She asked him to leave and
he did. On July 31, Duenas met Victor Garcia. The next day Garcia gave her a
note and a music CD. She put the note in a shoe box with other keepsakes, but
later noticed the note was missing.
On approximately August 1, Duenas went
to [Moreno]'s new apartment and made dinner for him. She spent the night and
they were intimate. The next day, [he] went to Duenas's and tried to initiate
sex. She said no and told him the night before had been a mistake. [Moreno]
persisted and Duenas gave in. On August 3, Duenas came home and found [him] by
her bed. At first, he refused to leave, . . . but he eventually left. She found
his water bottle in the closet and texted him, asking how long he had been in
her closet. He asked if he could come get the bottle.
Although she said no, [Moreno] showed
up and pushed his way into her apartment. [He] followed her into the bedroom
and kept saying `get naked’ in Spanish. He tried to pull her shorts down. She
began to cry and [Moreno] kept pulling at her shorts until he got them off. . .
. She kept telling him to leave and [Moreno] responded that if she forced him
to leave he would publish nude pictures he had of her. She said she would sue
him and he replied he had nothing to lose. Duenas spent 30 minutes in the
bathroom crying. . . . Eventually [Moreno]
began a `rant’ about how he was sorry and his jealousy was due to his
insecurities. He finally left after she told him he had lost her forever.
People v. Moreno,
supra.
Duenas then had her apartment manager change
her apartment's locks. She found the
eBlaster software on her computer and had an Apple computer technician remove
it. She also changed the password on her computer. On August 6, . . . Duenas
reported defendant to the police, but did not ask to have charges filed.
The stalking continued. On August 24,
Duenas could not log in to her computer because of password difficulties and
discovered the eBlaster software was back on her computer. She also noticed her
stuffed animals were rearranged and a box of mementos was missing. Also missing
were a letter requesting to be let out of her lease and the police report she
filed. A photograph of a wedding invitation on her refrigerator, taken that
day, was later found in [Moreno’s] possession.
On August 27, Duenas found two cameras,
one hidden under her stuffed animals and the other under the dresser. These
cameras had recorded video with sound. Duenas contacted the police, who
suggested she call [Moreno] and ask him about the cameras. He said that was `a
loaded question,’ but did not deny he put them in her apartment.
People v. Moreno, supra.
Duenas “went to stay with a friend” but the “friend heard
noises at night and asked [her[ to leave due to concerns about safety.” People v. Moreno, supra. She moved to a
house
“in Folsom and then to a house on Castro Way that had an
alarm system” and did not tell her friends where she was living; she also got a
restraining order against Moreno. People
v. Moreno, supra. Then she began having problems with the alarm; she could
not set it. She called the alarm company and a technician “told her the alarm
had been tampered with and the sensors had been removed.” People v. Moreno, supra.
On October 2, Duenas went out with Garcia to celebrate his
birthday. While she was out, the alarm was triggered, police responded and
asked Duenas to come home. People v.
Moreno, supra. Duenas and Garcia returned to the house and she gave the
police a key. People v. Moreno, supra.
A “canine unit entered the house and [Moreno] came out . . . and was arrested.”
People v. Moreno, supra.
Police conducted two searches of Moreno’s residence,
including his computer, which
revealed a wealth of evidence. [He] had
a computer file he had labeled `stalking.’ Inside were photographs of items in
Duenas's apartment establishing on what dates [he] had entered the apartment. [Moreno]
had e-mailed himself detailing Duenas's sexual activities with Garcia and
indicating that [he] had telephoned her residence once while she and Garcia
were having sex and had (somehow) observed their activity in response to his
call. The police found jewelry and other items taken from Duenas's apartment,
as well as a lock-picking kit.
[Moreno] had accessed the hidden
cameras and received videos from them over the Internet more than 40 times.
There were numerous intercepted e-mails and chats. Defendant had monitored and
documented Duenas's menstrual cycle. In one document, defendant had written, `I'm
proud/pleased that she is so scared for her safety that she avoids being home
especially by herself.’
People v. Moreno,
supra.
Moreno later admitted that he
installed the spyware and cameras,
photographed Duenas, broke into her apartment on several occasions, and took
some items. His defense was that he never wanted to scare her; he just wanted
to `[k]eep her company without her knowing it.’
People v. Moreno,
supra.
That brings us to the wiretapping: Moreno was convicted of three counts of
California Penal Code § 631, subd. (a).
The first count related to the installation of the eBlaster software in March.
The second two, counts 14 and 15, related to the cameras installed in late
August. [Moreno] contends there is insufficient evidence to sustain the
convictions on counts 14 and 15 because he did not intercept a communication
sent over a wire. He concedes his conduct may have violated the eavesdropping
statute -- section 632 or section 647, subdivision (j) -- which proscribes
secretly videotaping someone in certain circumstances. He contends, however,
that we cannot modify the judgment to reflect violations of these statutes
because they are lesser related, not lesser included, offenses.
People v. Moreno,
supra.
The Court of Appeals began its analysis of Moreno’s argument
by explaining that
`Subdivision (a) of section 631
prescribes criminal penalties for three distinct and mutually independent
patterns of conduct: intentional wiretapping, willfully attempting to learn the
contents or meaning of a communication in transit over a wire, and attempting
to use or communicate information obtained as a result of engaging in either of
the previous two activities.’ (Tavernetti v. Superior Court (1978)
22 Cal.3d 187 (California Supreme Court) `In enacting this statute, the
Legislature declared . . . its intent “to protect the right of privacy of the
people of this state” from what it perceived as “a serious threat to the free
exercise of personal liberties [that] cannot be tolerated in a free and
civilized society.”’ (California Penal (Code, § 630.) This philosophy appears
to lie at the heart of . . . the decisions construing the Privacy Act. (Ribas
v. Clark (1985) 38 Cal.3d 355 (California Supreme Court)).
People v. Moreno,
supra.
The Court of Appeals went on to explain that what was at
issue was the
second pattern of conduct—willfully
attempting to learn the contents or meaning of a communication in transit over
a wire. Section 631, subdivision (a) punishes anyone `who willfully and without
the consent of all parties to the communication, or in any unauthorized manner,
reads, or attempts to read, or to learn the contents or meaning of any message,
report, or communication while the same is in transit or passing over any wire,
line, or cable, or is being sent from, or received at any place within this
state.’
We recognize that in the usual
wiretapping case, the private communication is being transmitted by one of the
parties to the communication. Such was the case in the wiretapping count
involving the eBlaster software where [Moreno] intercepted Duenas's e-mail and
chats. Here it was [Moreno] who transmitted the pictures taken by the cameras
he secretly installed. But the statute . . . does not require that the victim
actually transmit, only that the defendant intercept the
communication `without the consent of all parties’ or `in any
unauthorized manner.’ (§ 631, subd. (a).) We acknowledge `the broad wording and
purpose of the statute.’ (Ribas, supra.)
People v. Moreno,
supra (emphasis in the original).
It then applied these standards to this case, explaining
that Richard Guilleland,
a computer expert and reserve police
officer, testified about the operation of the cameras [Moreno] installed in
Duenas's apartment. [He] bought two Sharx cameras, web-based security cameras,
designed to be accessed through the Internet by a router. Duenas's wireless
router was able to accommodate multiple devices including cameras. A port would
be designated for each camera. Guilleland opined the setup for the East Oakland
router at ports 8150 and 8151 was consistent with the setup for similar Sharx
cameras. The camera would have to be set up within 100 feet of the router. [Moreno’s]
laptop computer had a bookmark named `net cam’ with an IP address identical to
that of the first camera.
[Moreno] had contacted Sharx customer
service for help in setting up the cameras. Sharx suggested using port 8150 and
port 8151 on the IP address for the East Oakland router (Duenas's wireless router)
to access the cameras remotely. [He] told Sharx he was able to access the
cameras.
People v. Moreno,
supra.
The court went on to explain that Moreno’s laptop had
software for monitoring cameras;
several cameras could be viewed at once. Among his `favorite’ links were to `bed
cam’ and `floor cam’ which were linked to ports 8150 and 8151. These sites were
accessed multiple times August 24 through August 30. Each camera had a memory
card that contained video files. A series of these videos was played to the
jury.
Duenas had Internet service through
Comcast. Her computer was connected wirelessly to the router, which in turn was
connected by a cable to the Comcast service provider box. Thus, anything
transmitted by Duenas's router over the Internet was transmitted over a `wire,
line or cable.’ [Moreno] made unauthorized use of Duenas's router to learn the
contents of the communications he unlawfully captured using the hidden cameras.
The cameras captured both words and real time images, thus they captured
`communications,’ as [Moreno] conceded at oral argument. (See People v.
Drennan (2000) 84
Cal.App.4th 1349 (California Court of Appeals) [eavesdropping statute (§
632) addresses the interception and recording of sound-based or symbol-based
communications, not still, timed photographs without sound]; People v.
Gibbons (1989) 215 Cal.App.3d 1204 (California Court of Appeals) [communication
under eavesdropping statute covers communication by conduct].)
In his reply brief, [Moreno] contends
that when he used the router, the camera had already recorded and stored the
images and sounds on a memory card. He contends the wiretapping
statute does not apply to stored communication or stored content, citing to
section 629.51, subdivision (b). That provision states: `This chapter applies
to the interceptions of wire and electronic communications. It does not apply
to stored communications or stored content.’ This provision, however, does not
apply to the wiretapping statute. The chapter referred to is Chapter 1.4,
Interception of Wire, Electronic Digital Pager, or Electronic Cellular
Telephone Communications. (§§ 629.50–629.96.) The wiretapping statute, section
631, is in Chapter 1.5, Invasion of Privacy. (§§ 630–638.)
[Moreno’s] installing of hidden
cameras, surreptitiously recording Duenas's conversations and activity, transmitting
those recordings over the Internet through the unauthorized use of Duenas's
router, and viewing those videos on his own computer encompassed more illegal
acts than simply wiretapping. But his unauthorized transmission and viewing of
those videos constituted wiretapping. There was substantial evidence to support
his convictions for wiretapping in counts 14 and 15.
People v. Moreno,
supra. For these and other reasons,
the Court of Appeals affirmed Moreno’s conviction. People
v. Moreno, supra.
No comments:
Post a Comment