Filed 6/21/16 Certified for Publication 7/18/16 (order attached)

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re M.H., a Person Coming Under the Juvenile Court Law.

D067616

THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J235668)

v.

M.H.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Kenneth K.

So and Roderick Ward Shelton, Judges. Affirmed.

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 General, Eric A. Swenson, Scott C. Taylor and Junichi P. Semitsu, Deputy Attorneys

General, for Plaintiff and Respondent.

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 Welfare and Institutions Code section 602 alleging M.H. engaged in an

1 Matthew's suicide note also states, "P.S. I've been planning this for months now." The causal relationship, if any, between M.H.'s video and Matthew's suicide is not before us and we express no opinion on that issue.

2 unauthorized invasion of privacy by means of a cell phone camera in violation of Penal

Code2 section 647, subdivision (j)(1) (hereafter section 647(j)(1)), a misdemeanor.3

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."

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 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

2 All statutory references are to the Penal Code unless otherwise specified.

3 Section 647(j)(1) defines disorderly conduct as occurring when a person commits the following acts: "Any person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, or mobile phone, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision shall not apply to those areas of a private business used to count currency or other negotiable instruments." 3 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.

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 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 (2009) 47 Cal.4th 745, 783

[constitutional claim forfeited because appellant did not properly raise it below]; People

4 v. Clayburg (2012) 211 Cal.App.4th 86, 93 [First Amendment claim forfeited by failure

to raise it below].)

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

5 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.

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

6 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, "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

4 Matthew's mother addressed the court only at the dispositional hearing. She did not testify at the adjudication hearing and her statement quoted in the text is therefore not evidence, but is merely provided here as background context. 7 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.

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 section 647(j)(1). We reject this contention.

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

8 the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses.

(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

B. Matthew's Expectation of Privacy

1. Reasonable expectation of privacy in a public restroom stall

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, section 1 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 (1962) 58 Cal.2d 469 (Britt), a police

officer stationed himself above the ceiling of a department store's men's room, where he

9 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.)

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

10 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 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

5 M.H.'s reply brief also cites United States v. Billings (10th Cir. 1988) 858 F.2d 617, but that case is distinguishable because there police followed a drug courier into an airport restroom, and, once inside the restroom, the officer, standing a few feet away from the stall, saw a drug parcel taped to the courier's leg. (Id. at pp. 617-618.) M.H. did not observe Matthew enter the bathroom, and Matthew's conduct in no way resembles that of the drug courier in Billings.

6 In describing those "specified activities," the court in Tily B. only stated, "They are just what you would imagine." (Tily B., supra, 69 Cal.App.4th at p. 21, fn. 17.) 11 ordinance violated patrons' right of privacy, the court in Tily B. stated, "Whatever

individual sensibilities, there is no constitutional right of privacy in the restrooms of a

place of public accommodation . . . ." (Id. at p. 24.) However, that passage, when read in

context, refers to a hypothetical right of patrons to be alone in a public restroom to

conduct illegal activities, and did not address the very distinct issue here, involving the

right to not have one's solitary activity within a bathroom stall surreptitiously recorded

and then disseminated on social media.

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

12 render unreasonable a student's expectation that his conduct in a bathroom stall will not

be secretly recorded and uploaded to social media.

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

13 one expects in a given setting is not complete or absolute does not render the expectation

unreasonable as a matter of law." (Sanders, supra, 20 Cal.4th at p. 916.)

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

14 in offices to monitor unauthorized computer use. Addressing the range of potential

intrusions on privacy, the Court noted that at one end of the spectrum are places

"conducted in an open and accessible space, within the sight and hearing not only of

coworkers and supervisors, but also of customers, visitors, and the general public." (Id.

at p. 290.) Meanwhile, at the other end of the spectrum where employees maintain

privacy interests "are areas in the workplace subject to restricted access and limited view,

and reserved exclusively for performing bodily functions or other inherently personal

acts." (Ibid.)

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

15 everything she says to medical personnel for the possible edification and entertainment of

casual television viewers." (Id. at p. 238.)

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. 291.) Thus, while section 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 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

16 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 (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.

17 "[T]he proper goal of statutory construction 'is to ascertain and effectuate

legislative intent, giving the words of the statute their usual and ordinary meaning. When

the statutory language is clear, we need go no further. If, however, the language supports

more than one reasonable interpretation, we look to a variety of extrinsic aids, including

the objects to be achieved, the evils to be remedied, legislative history, the statutory

scheme of which the statute is a part, contemporaneous administrative construction, and

questions of public policy.'" (People v. Ramirez (2009) 45 Cal.4th 980, 987.)

Contrary to M.H.'s assertions, the plain language of section 647(j)(1) does not

incorporate by reference the elements of privacy torts. The statute provides that criminal

liability does not attach unless the defendant acted "with the intent to invade the privacy

of a person or persons inside." Nothing in those words incorporates by reference an

entire body of civil tort law into the criminal statute. As the Attorney General correctly

notes, the phrase "invade the privacy" does not connote the tort of invasion of privacy,

and many courts have used that phrase when addressing Fourth Amendment claims

without ever discussing privacy tort law. (See, e.g., Blair v. Pitchess (1971) 5 Cal.3d

258, 273 ["'[i]f the Sheriff cannot invade the privacy of a home without a warrant when

the state interest is to prevent crime'"], superseded by statute as explained in Simms v.

NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 242; People v. Rogers (1986) 187

Cal.App.3d 1001, 1009 ["The extent of invasion of privacy is not unreasonable in the

circumstances."].)

Moreover, section 647(j)(1) cannot reasonably be construed to incorporate the

specific intent to commit the tort of invasion of privacy because that tort is actually an

18 umbrella term for four different common law privacy torts: "(1) intrusion into private

matters; (2) public disclosure of private facts; (3) publicity placing a person in a false

light; and (4) misappropriation of a person's name or likeness." (Hill v. National

Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 24; see 5 Witkin, Summary of Cal. Law

(10th ed. 2005) Torts, §§ 658-659, pp. 963-967, §§ 664-665, pp. 973-974, §§ 673-675,

pp. 987-992, § 676, pp. 993-994.) If the Legislature intended the phrase "intent to invade

the privacy" to be code for incorporating by reference the various elements and defenses

of four common law privacy torts, it could not have chosen a more obscure and obtuse

way of doing so.

Additionally, we have examined the legislative history surrounding the 1994

enactment of section 647(j)(1) pursuant to a request for judicial notice the Attorney

General filed and M.H. did not oppose.7 The bill that led to the enactment of section

647(j)(1) was introduced "to correct a problem in San Diego where a person was caught

peeking into the woman's bathroom through a hole in the wall" at the airport and "the

case could not be prosecuted because no law outlawed this activity." (Sen. Com. on

Judiciary, Analysis of Assem. Bill 116X (1993-1994 Reg. Sess.) as amended June 28,

1994.) The phrase "with the intent to invade the privacy" (ibid.) was inserted in the

assembly bill after the American Civil Liberties Union and the California Attorneys for

Criminal Justice objected to an earlier version that criminalized the act of loitering "in

public areas where people have a right to be . . . ." (Assem. Com. on Public Safety,

7 On March 22, 2016, we granted the Attorney General's request for judicial notice. 19 Analysis of Assem. Bill 116X (1993-1994 Reg. Sess.) as amended May 9, 1994; Assem.

Amends. to Assem Bill No. 116 (1993-1994 1st Ex. Sess.) May 9, 1994 & June 28,

1994.) There is nothing in the legislative history provided suggesting "with the intent to

invade the privacy" was also added to incorporate civil tort privacy defenses into the

statute. Despite the discussion of this legislative history in the Attorney General's brief,

M.H.'s opening and reply briefs do not dispute any of these assertions or cite any contrary

authority.8

II. FIRST AMENDMENT CLAIM FORFEITED

For 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.9 "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.)

Considering an issue for the first time on appeal is often unfair to the trial court, unjust to

8 Having rejected M.H.'s assertion that section 647(j)(1) incorporates civil tort law, it is unnecessary to consider his related argument that his video of Matthew in the bathroom stall was newsworthy or of public interest.

9 M.H.'s reply brief does not address the Attorney General's argument that the constitutional issue is forfeited. His 31-page reply brief devotes only two short paragraphs to the constitutional issue, in which he "stands on the arguments" made in his opening brief. 20 the opposing party, and contrary to judicial economy because it encourages the

embedding of reversible error through silence in the trial court. Nevertheless, courts may

exercise discretion to consider constitutional challenges to penal statutes for the first time

on appeal where the arguments are legal, based on undisputed facts, and involve review

of abstract and generalized legal concepts. (Ibid.)

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.

21

DISPOSITION

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 article VI, section 6 of the California Constitution. 22 Filed 7/18/16

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re M.H., a Person Coming Under the Juvenile Court Law.

D067616

THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J235668)

v.

ORDER GRANTING PUBLICATION

M.H.,

Defendant and Appellant.

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 ORDERED that the words "Not to Be Published in the Official Reports" appearing

on page 1 of said opinion be deleted and the opinion herein be published in the Official

Reports.

NARES, Acting P. J.

Copies to: All parties

24