Stalking, Spyware and Wiretapping

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.