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People v. Gibbons

Court of Appeal of California, Fourth Appellate District, Division Two

November 17, 1989

No. E006489


 [*1206]  [**906]   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 [***2]  and affirm.


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 [**907]  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 the purpose of the privacy act and its proscriptions. 1 Neither side has provided controlling authority dealing  [*1208]  directly with videotaping; however, as we discuss, the language of the statute and cases makes it clear that the Legislature intended to control the activity underlying this case.

 [***3]  The purpose of the statutes is clear and unambiguous. Initially, in Penal Code section 630, the Legislature recognized that technology had advanced to the extent that privacy could be imperiled unless the Legislature intervened. The privacy statutes were enacted after a series of hodgepodge regulations dealing with privacy in communications had been amended and reamended. It was out of recognition that the entire privacy area needed overhaul that the privacy statutes were adopted. (Van Boven, Electronic Surveillance in California: A Study in State Legislative Control  (1969) 57 Cal.L.Rev. 1182, 1189-1190.) We note in the text [**908]  of section 630, no reference is made to a specific device or instrument for eavesdropping. Rather, the prohibition is based on the purpose for which the device or instrument is used. In Penal Code section 632, the statute provides against the use of "any electronic amplifying or recording device" for the purpose of eavesdropping or recording private communications.

CA(1)(1)  We find that ] a video recorder is an instrument which, if used in the manner proscribed under section 632, is [***4]  a recording device for purposes of the privacy act.

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215 Cal. App. 3d 1204 *; 263 Cal. Rptr. 905 **; 1989 Cal. App. LEXIS 1186 ***

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL FRANCIS GIBBONS, Defendant and Appellant

Subsequent History:  [***1]  Appellant's petition for review by the Supreme Court was denied March 15, 1990.

Prior History: Municipal Court for the Mt. San Jacinto Judicial District of Riverside County, No. 87-1615-B, Richard G. Van Frank, Judge.

Disposition: Judgment is affirmed.


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