This post examines an opinion from the California Court of Appeal – Fourth District: In re M.H., 2016 WL 3541185 (2016). As courts usually do, the opinion begins by explaining how, and why, the case arose:
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.’
The San Diego County District Attorney's Office filed a juvenile delinquency petition under Welfare and Institutions Code section 602 alleging M.H. engaged in an unauthorized invasion of privacy by means of a cell phone camera in violation of PenalCode section 647, subdivision (j)(1) (hereafter section 647(j)(1)), a misdemeanor.
Following a contested adjudication hearing, the court found true the allegation that M.H. violated section 647(j)(1). The court sentenced M.H. to probation on numerous conditions, including several restricting his use of social media. Addressing M.H., the court stated, `We are going to come back in 60 days. I'm going to see how you are doing. If I have any more problems with you, you are going into custody.’
In re M.H., supra.
The Court of Appeals goes on to explain that
[o]n 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 section 647(j)(1). Specifically, M.H. contends Matthew had no reasonable expectation of privacy in the bathroom stall because Matthew's distinctive shoes were visible under the stall's wall and Matthew was audibly moaning, which anyone in the bathroom could have heard. Second, for the first time on appeal, M.H. also contends section 647(j)(1) incorporates by reference the elements of the tort of invasion of privacy, and assuming that to be true, he asserts there is a `newsworthy’ defense that immunizes him from criminal liability in this case. Third, and also for the first time on appeal, M.H. contends that, as applied here, section 647(j)(1) violates his First Amendment rights.
In re M.H., supra.
In the opinion, the court explains, initially, that
[w]e 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. (California Supreme Court 1998) 18 Cal.4th 200) 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. (California Supreme Court 2009) 47 Cal.4th 272, 291 (Hernandez ).)
M.H.'s contention that section 647(j)(1) incorporates the tort elements of invasion of privacy is forfeited because his attorney took the exact opposite position in the juvenile court, asserting, `This is not a tort case. This is a crime.’ In any event, even if not forfeited, the argument is unavailing because neither the text nor the legislative history of section 647(j)(1) supports M.H.'s argument.
We also conclude M.H. forfeited his claim that section 647(j)(1) violates his First Amendment rights because M.H. did not raise this constitutional issue in the juvenile court. (People v. Ervine (California Supreme Court 2009) 47 Cal.4th 745, 783 [constitutional claim forfeited because appellant did not properly raise it below]; People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [First Amendment claim forfeited by failure to raise it below].)
In re M.H., supra.
It goes on to describe the “factual background” of the case in some detail:
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 make any noise or say anything to indicate he was there, and made no attempt to get anyone's permission to take the video.
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.
In re M.H., supra.
The Court of Appeals goes on to explain that,
[a]fter 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 also recognized his own shoes in the video in the adjacent stall, and Erik told M.H. that Matthew was the person in the other stall.
Three days later on Monday, Ezekiel told Matthew, “`here'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.
In re M.H., supra.
It also explains that
[i]t 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.’
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.
In re M.H., supra.
And, finally, the opinion sums up what happened next:
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 issue of M.H.'s threat. After that issue was apparently resolved and Ezekiel left the room, M.H. confessed he recorded and uploaded the video. M.H. said he made and uploaded the video because he thought it was funny that someone in the stall seemed to be masturbating. M.H. told police `he felt terrible for what had happened,’ never intended the video to cause harm, and did not know who was in the stall when he took the video.
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.
In re M.H., supra.
The Court of Appeals began its analysis of the legal issues in the case by noting that “M.H. first contends that insufficient evidence supports the juvenile court's finding that he violated section 647(j)(1).” In re M.H., supra. It went on to analyze that argument, explaining that
[a] violation of section 647(j)(1) occurs only if the actor has the specific intent `to invade the privacy’ of someone in a statutorily enumerated place, including a bathroom. M.H. contends no substantial evidence supports the court's finding he violated section 647(j)(1) because M.H. only recorded what Matthew exposed to public view—his feet through the gap between the stall wall and the floor, and the sounds Matthew was making. Citing Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.4th 1 (Tily B.), M.H. contends there is no right to privacy in what may be observed from common areas in public restrooms.
To begin with, article I, section1 of the California Constitution explicitly deems privacy an inalienable right by stating, `All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.’
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 (California Supreme 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 could peer through vents to see two men having sex in the toilet stalls below. Although the stalls were enclosed by partitions and a door, the enclosures stopped approximately 12 inches from the floor. (Id. at p. 471.) The Supreme Court held the covert surveillance violated privacy rights, stating, `Man's constitutionally protected right of personal privacy not only abides with him while he is the householder within his own castle but cloaks him when as a member of the public he is temporarily occupying a room—including a toilet stall —to the extent that it is offered to the public for private, however transient, individual use.’ (Id. at p. 472, italics added.)
In re M.H., supra.
The court went on to explain that the California Supreme Court’s
subsequent decision in People v. Triggs (1973) 8 Cal.3d 884 (Triggs ) . . . 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. . . . 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.’
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 exists `even if the interior of the stall might have been open to view from areas accessible to the public.’ (Triggs, supra, 8 Cal.3d at p. 892.). . .
In re M.H., supra (emphasis in the original).
The Court of Appeals then took up another argument M.H. made on appeal:
M.H. contends section 647(j)(1) requires `specific intent to commit an invasion of privacy.’ From this premise, he argues that section 647(j)(1) incorporates the elements of the tort of invasion of privacy, and therefore he claims there is a `newsworthy’ defense built into the law. M.H.'s attorney asserts that as a matter of law, M.H. cannot have violated section 647(j)(1) because recording a high school student masturbating, or pretending to masturbate, in a school restroom stall is a newsworthy event of legitimate public interest.
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 (California Supreme Court 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 section 647(j)(1), when M.H.'s lawyer conceded on the record the issue he now disputes.
In any event, even if we were to consider whether section 647(j)(1) incorporates the tort of invasion of privacy, we would reject such a contention.
In re M.H., supra.
Finally, the Court of Appeals noted that M.H. argued,
[f]or the first time on appeal, M.H. contends the finding he violated section 647(j)(1) should be vacated because, as applied, the statute violates his right to freedom of expression under the First Amendment of the United States Constitution. However, the Attorney General notes, and M.H. does not dispute, he failed to raise a constitutional challenge to this statute in the juvenile court. `All issues, even those involving an alleged constitutional violation, are subject to the rule of forfeiture, and a defendant's failure to raise the issue before the trial court will generally result in the appellate court's refusal to consider it.’ (People v. Navarro (2013) 212 Cal.App.4th 1336, 1347, fn. 9.). . . .
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.
In re M.H., supra.
For these and other reasons, the Court of Appeals affirmed the juvenile court judge’s ruling on the juvenile delinquency petition. In re M.H., supra.