Gibbons

I disagree with the majority’s strained construction of Penal Code section 632, 1 and therefore dissent.

*1212 Construing a penal statute so that it fails to give an ordinary person fair notice of the act or acts punished violates due process. (People v. Keeler (1970) 2 Cal.3d 619, 633-639 [ 87 Cal.Rptr. 481 , 470 P.2d 617 , 40 A.L.R.3d 420 ] [“human being” in § 187 does not give fair warning that killing a fetus is murder].) Fair notice that a particular act violates a statute is deemed to have been given to a particular defendant by the words of the statute, the legislative intent, or cases construing the statute. (See id. at pp. 635 [“section 187 bears a plain, common sense meaning, well settled in the common law and fortified by its legislative history”], 636-639 [discussing case law].) A construction which does not comport with statutory language, legislative intent, or case law also violates the foundational constitutional principle of the separation of powers, except when the construing court overrules a previous judicial construction. (See, id. at pp. 624-633 [discussing language, legislative intent and case law and concluding that to construe § 187 to include feticide…

Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the Appellate Department of the Riverside Superior Court. In this appeal, we are asked for the first time to decide whether the surreptitious videotaping of sexual activity violates California’s privacy statutes, Penal Code sections 630 and 632. The trial court overruled defendant’s demurrer and a jury convicted defendant. Defendant appeals arguing the conduct in question is not prohibited by these sections. We agree with the trial court’s determination and affirm.

Facts

On three different occasions, defendant invited young women to his residence. In the bedroom, with the door closed and window curtains drawn, defendant and the three women engaged in sexual activity including sexual intercourse. Without obtaining the consent of the women, defendant videotaped these encounters utilizing a video camera which he had hidden in the closet. The women were never advised of the existence of the camera until being subsequently informed by police who recovered the videotapes.

*1207 Discussion

1. Videotaping May Violate the Right of Privacy.

Penal Code sections 630 and 632 define…