COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE

PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent,

CASE NO. D067863
SAN DIEGO COUNTY
SUPERIOR COURT NO.
SCD252338

v.
KEVIN CHRISTOPHER BOLLAERT,
Defendant and Appellant.

APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY
(HONORABLE DAVID M. GILL, JUDGE)
APPELLANT’S REPLY BRIEF

Patrick J. Hennessey, Jr.
Attorney At Law (047993)
2356 Moore Street, Suite 201
San Diego, CA 92110
(619) 298-7802
Attorney for Appellant
By Appointment of the Court of Appeal Under the Appellate
Defenders Independent Case System.

 TABLE OF CONTENTS
ARGUMENT I ............................................. 1
APPELLANT’S CONVICTIONS FOR IDENTITY THEFT UNDER PENAL
CODE SECTION 530.5(a) MUST BE SET ASIDE AS HE WAS NOT
AN INFORMATION OR INTERNET CONTENT PROVIDER AND
THEREFORE COULD NOT BE PROSECUTED UNDER THAT STATUTE.
THERE WAS NO POSSESSION OF THE IDENTIFYING INFORMATION
OF ANOTHER WITH THE INTENT TO COMMIT FRAUD.. . . . . 1
A. Appellant’s Opening Brief. ...................... 1
B. Respondent’s Brief .............................. 2
C. Discussion ...................................... 4
ARGUMENT II ........................................... 19
APPELLANT’S EXTORTION CONVICTIONS ARE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE AND MUST BE REVERSED. .......... 19
A. Appellant’s Opening Brief ...................... 19
B. Respondent’s Brief ............................. 20
C. Discussion ..................................... 21
ARGUMENT III .......................................... 28
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY WITH CACI
CIVIL LITIGATION INSTRUCTIONS THAT ALLOWED THE JURY TO
ELEVATE A POSSIBLE CIVIL WRONG INTO AN ELEMENT OF A
CRIMINAL OFFENSE OF UNAUTHORIZED USE OF PERSONAL
IDENTIFYING INFORMATION BASED ON PENAL CODE SECTION
653m, SUBDIVISION (a) ............................... 28
A. Appellant’s Opening Brief ...................... 28
B. Respondent’s Brief ............................. 29
C. Discussion ..................................... 30
CONCLUSION ............................................ 32
CERTIFICATION OF WORD COUNT ........................... 33
PROOF OF SERVICE BY MAIL/ELECTRONIC SERVICE SUBMISSION 34

i

 TABLE OF AUTHORITIES
Cases
Califano v. Metrosplash.com Inc. (9th Cir.2003) 339 F.3d
1119 ............................................. 11, 13
Chan v. Lund (2010) 188 Cal.App. 4th 1159, 1171........ 22
Cross v. Cooper (2011) 197 Cal.App. 4th 357, 387-388... 26
Fair Housing Council of San Fernando Valley v.
roomates.com LLC (9th cir. 2008) 525 F.3d 1157 ..... 3, 8
Four Navy Seals v. Associated Press (2005) 413 F.Supp.
1136, 1143 ........................................... 17
Green v. America Online (3d Cir.2003) 318 F.3d 465, 470471 .................................................. 15
In Re Rolando S. (2011) 197 Cal.App. 4th 936........... 14
Jones v. Dirty World Entertainment Recordings, LLC (6th
Cir.2014) 755 F.3d 398 ............................... 11
Levitt v. Yelp! Inc. (9th Cir. 2014) 765 F.3d 1123.. 4, 6,
22, 27
Nemet Chevrolet, Ltd., v. Consumeraffairs.com, Inc. (4th
Cir.2009) 591 F.3d 250, 254 .......................... 13
Partach v. Banning (1967) 251 Cal.App. 3d 278, 286..... 31
People v. Hesslink (198) 167 Cal.App. 3d 781, 788...... 25
People v. Peniston (1966) 242 Cal.App. 2d 719.......... 26
People v. Peniston, supra, 242 Cal.App. 2d at p. 722... 26
People v. Sedeno (1974) 10 Cal.3d 703, 715-716......... 32
Reno v. American Civil Liberties Union (1997) 521 U.S.
844, 885 ............................................. 12
United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173.. 17

ii

 Universal Communications Systems Inc. v. Lycos, Inc. (1st
Cir. 2007) 478 F.3d 413, 419 .......................... 9
Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d
327, 330 ...................................... 5, 12, 13
Zeran v. America Online, Inc., supra, 129 F.3d at p. 330
............................................... 8, 9, 10
Statutes
Penal Code section 519................................. 21
Penal Code section 530.5(a)............................. 2
Penal Code section 530.5, subdivision (f)........... 6, 13
Penal Code section 653(m)........................... 2, 15
Penal Code section 653m, subdivision (a)............... 29
Penal Code sections 519 and 520........................ 24
section 230..................................... 5, 12, 13

iii

 COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT, DIVISION ONE
CASE NO. D067863

PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent,

SAN DIEGO COUNTY
SUPERIOR COURT NO.
SCD252338

v.
KEVIN CHRISTOPHER BOLLAERT,
Defendant and Appellant.

APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY
(HONORABLE DAVID M. GILL, JUDGE)
APPELLANT’S REPLY BRIEF
ARGUMENT I
APPELLANT’S
CODE SECTION
INFORMATION
COULD NOT BE
POSSESSION OF
A.

CONVICTIONS FOR IDENTITY THEFT UNDER PENAL
530.5(a) MUST BE SET ASIDE AS HE WAS NOT AN
OR INTERNET CONTENT PROVIDER AND THEREFORE
PROSECUTED UNDER THAT STATUTE. THERE WAS NO
THE IDENTIFYING INFORMATION OF ANOTHER WITH
THE INTENT TO COMMIT FRAUD.

Appellant’s Opening Brief.
In his opening brief appellant established that the

People’s case could not be sustained on any of the three

1

 theories under which they believed appellant’s actions
fell within the purview of Penal Code section 530.5(a),
identity theft.

The People had proceeded on three

separate theories upon which they believed liability was
based:

(1) violation of Penal Code section 653(m); (2)

public disclosure of private facts; and (3) intrusion
into a person’s private affairs.
Appellant argued that none of the three theories
were supported by the evidence.

More specifically,

appellant argued that under the Communications Decency
Act appellant was immune from prosecution as he was not
an internet content provider under any reasonable
interpretation of the term.

Additionally, appellant

argued that he could not be guilty of identity theft
because he did not obtain, distribute or otherwise misuse
the personal identification information of any individual
for an unlawful purpose.

Finally, appellant argued that

Section 530.5(a) does not apply to individuals engaged in
the business of operating a website.
B.

Respondent’s Brief.
Respondent argues that appellant was an information

content provider and therefore not immune under Section
530.5(a).

Additionally, respondent argues that, if not,

2

 appellant acted with the intent to defraud and for that
reason is not immune.

Respondent claims that appellant

designed the site in such a way that posters to the site
were required to provide victim’s personal identifying
information which was then inserted into the postings.
Respondent argues that the information was retained and
used in such a way as to defraud the victims into using
“Changemyreputation.com” to remove the posted photos.
(Respondent’s Brief p. 20, 24.)

Respondent relies on

Fair Housing Council of San Fernando Valley v.
Roomates.com LLC (9th cir. 2008) 525 F.3d 1157 to support
their argument that appellant was an information content
provider and that appellant, being engaged in a facially
illegal act, is not to benefit from immunity under the
Act.

(Respondent’s Brief pp. 24-25.)
Respondent also argues the information was obtained,

retained, and distributed for purposes of defrauding the
victims.

This unlawful use makes his conduct fall within

a purview of the statute.

(Respondent’s Brief p. 35.)

Finally, respondent argues that the disclosure of private
facts forms an additional basis for the verdicts.
(Respondent’s Brief p. 40.)

3

 C.

Discussion.
Respondent basically reiterates the arguments made

below and relies on the same authorities.

Respondent,

for the most part, fails to discuss many of the cases
cited by appellant clearly articulating why his conduct
did not make him an internet content provider such as to
remove him from the immunity protection.

These cases

support the conclusion appellant did not obtain, possess
or distribute (disclose) private information of the
victims.
It was not claimed below or by respondent at this
level that appellant created the content of the website.
Appellant received submissions from third parties and
posted some of those submissions on the website along
with other information that was largely available to
anyone with access to a computer.

Information as to an

individual’s Facebook address, residence and other
information is readily available.

Respondent has not

successfully been able to distinguish appellant from the
others who have engaged in virtually identical conduct
that the courts have deemed protected.

(See Levitt v.

Yelp! Inc. (9th Cir. 2014) 765 F.3d 1123.)

4

 1.

Communications Decency Act.
Congress passed section 230 of the Communications

Decency Act (“CDA 230”) in 1991.

The Act took the

deliberate, affirmative step to protect speech online by
broadly shielding internet service providers from
responsibility for materials supplied by their users.
Congress recognized that immunizing interactive computer
services from liability for hosting diverse content in
turn encouraged the development and availability of
innovative online services that foster free speech.
Because it encourages both large and small intermediaries
to open forums for discussion, section 230 has been
critical in protecting and expanding the internet as a
forum for free speech embodied in the First Amendment.
The CDA was enacted by Congress specifically to
prevent actions against internet service providers that
would constitute intrusive regulation of free speech.
(Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d
327, 330.)

As occurred in appellant’s case, the law

applies to acts such as his where interactive computer
services and access software providers display content
created by or originated by third parties.

In

appellant’s case, respondent has never disputed the fact

5

 that the content displayed on appellant’s website was
either created by or originated by third parties.

The

CDA specifically precludes enforcement of state actions
that are inconsistent with the Act.

(47 U.S.C. Section

320, subdivision (a)(1)(3).)
Here, the People claimed the statute’s protection
did not apply to appellant because he administered the
“Yougotposted” website and retained the authority to pick
and choose which information was posted.
make him a content provider.

This does not

Those actions of appellant

are no different than those found by the courts to be
protected under the statute.

(See e.g. Levitt v. Yelp!,

Inc., supra, 765 F.3d 1123.)

The People’s argument must

fail because accepting their arguments would eviscerate
protections provided by the statute, jeopardizing service
providers and undermining free speech in the process.
2.

Penal Code section 530.5.
Penal Code section 530.5, subdivision (f) immunizes

an interactive computer service or access software
provider from liability unless the service or provider
acquires, transfers, sells, conveys or retains possession
of personal information with the intent to defraud.
Obviously, absent intent to defraud, Penal Code section

6

 350.5 would have no applicability to appellant over and
above the fact he is protected under the Act.

Appellant

is not liable under Penal Code section 530.5 because he
is (1) an interactive computer service provider, (2) an
access software provider as defined in the CDA and, (3)
there was no fraud.
Here, the People produced no evidence in support of
their belated claim that appellant possessed personal
identification information with the intent to commit
fraud.

CALCRIM 2401 describes fraud as having deceived

another person in order to cause a loss of money or
something of value or damage to a legal, financial or
property right.

The People belatedly raised the claim

that payments made through “changemyreputation.com” were
obtained by fraud because the victims were not aware that
appellant managed both websites.
argument.

Problems arise with the

First, the link to “changemyreputation.com”

was visible on “Yougotposted.com.”

There was no evidence

suggesting appellant was trying to hide the fact that the
sites were connected.

A number of the victims stated it

was “obvious” that the same person was behind both sites.
(4RT pp. 305-306.)

Additionally, the People’s argument

must fail because the victims clearly believe the payment

7

 was to have the photos removed, not because they were
“deceived”.
As noted in Appellant’s Opening Brief (“AOB” pp. 2728) appellant falls within the protections of the
Communications Decency Act as either an interactive
computer service provider or an access software provider.
Evidence presented at trial showed appellant to be both.
He performed all of the functions described in the CDA
including his right to filter, screen, and allow or
disallow content.

He was also, under the Act, permitted

to pick, choose, analyze or digest contents as well as
transmit, receive and display that content.

(Subdivision

(f)(4).)
The case relied on by respondent, Fair Housing
Council of San Fernando Valley v. Roommates.com, LLC
(Roommates) also recognizes that CDA 230 provides a safe
haven for interactive computer service providers by
removing them from the traditional liabilities attached
to speakers and publishers.

(Roommates, supra, 521 F.3d

at p. 1179; see also Zeran v. America Online, Inc.,
supra, 129 F.3d at p. 330.)
On the facts of this case it cannot be credibly
argued appellant was an information content provider.

8

 The CDA makes it clear that the person or entity be
“responsible, in whole or in part, for the creation or
development of information provided through the Internet
or any other interactive computer service.”
(f)(3).)

(Subdivision

Appellant’s acts consisted entirely of receipt

of potential content and images submitted by third
parties.

He merely engaged in a decision as to whether

or not to post some or all of the third party submissions
to the website.

The courts have consistently held that

engaging in this type of a selection process does not
render a party an information content provider.

(See

Universal Communications Systems Inc. v. Lycos, Inc. (1st
Cir. 2007) 478 F.3d 413, 419.)
The Fourth Circuit has also made it clear that one
may not hold the service provider liable for its exercise
of a publisher’s traditional editorial functions such as
deciding whether to publish, withdraw, postpone or alter
content.

(Zeran v. America Online Inc., supra, 129 F.3d

at p. 330.)
The information accepted by appellant for purposes
of posting was neither private nor did it remove him from
his protections under the CDA.

None of the information

received by appellant was illegal and in fact, it was not

9

 necessarily private.

The People never argued that any

posting was per se illegal.

Most of the information

requested, including Facebook page information is often
readily obtainable to anyone comfortable with a computer
as many Facebook pages are not blocked and are readily
viewable.
Under Section 530.5, requesting this information and
possession of the information, publishing the information
or disclosing it is not prohibited, absent the requisite
criminal intent to defraud.

In Roommates, the solicited

information such as questions as to sexual orientation
etc. was facially prohibited under various fair housing
laws.

Listing of the information was not prohibited.

It

is also worth noting that in Zeran v. America Online, the
message board posted the plaintiff’s home phone number
which, as in this case, resulted in a number of telephone
calls the victim deemed abusive.

The Court held America

Online was not liable under The Communications Decency
Act, even though they were put on notice about the
contents of the posts and deliberately took no action to
remove them from the message board.

(Id. at p. 329.)

Respondent’s claim that appellant’s posting of the
photos and his request for information removed him from

10

 the protections of the CDA has been rejected by the 9th
Circuit.

In Califano v. Metrosplash.com Inc. (9th

Cir.2003) 339 F.3d 1119, the court specifically rejected
the contention that the dating website was a content
provider because it had required its users to answer prepopulated questions which appear to have included home
addresses, e-mail addresses and telephone numbers.
at p. 1124.)

(Id.

Similarly, in Jones v. Dirty World

Entertainment Recordings, LLC (6th Cir.2014) 755 F.3d
398, the website posted disparaging and defamatory
photos, videos and comments about other people.

The

plaintiff in the case sued the site because it posted
third-party submissions suggesting she had engaged in
sexual acts with the entire Cincinnati Bengals football
team and that she had numerous sexually transmitted
diseases.

The post listed the high school where she

taught among other information.

The Sixth Circuit Court

of Appeal found the Communications Decency Act applied
and provided protection, finding “The Dirty” was not an
information content provider.

(Id. at p. 414.)

In Jones, supra, the Court found that the fact the
website encouraged and solicited actionable material and
the fact the website’s operator ratified and adopted the

11

 actionable material by adding his own commentary did not
make the website operator a content provider.

In that

case the third-party user or provider was specifically
instructed to provide specific information.

(Id. at p.

430.)
It is the policy of the United States to minimize
internet regulation.

This policy of regulatory

forbearance applies to any liability imposed based upon
the exercise of traditional editorial functions such as
to publish or withdraw third-party content.

Any such

liability was “for Congress simply another form of
intrusive Government regulation of speech.”
supra, 129 F.3d at 330.)

(Zeran,

Congress has recognized in

Section 230 what the United States Supreme Court later
confirmed in extending the highest level of First
Amendment protection to the internet.
“governmental regulation of the content of speech is
more likely to interfere with the free exchange of
ideas then to encourage it.” (Reno v. American
Civil Liberties Union (1997) 521 U.S. 844, 885.) It
is clear that Congress intended to encourage the
unfettered and unregulated development of free
speech on the Internet and to promote the
development of the E-commerce.”
Congress was rightfully concerned that imposition of
liability on providers who host thousands and possibly
millions of messages may necessarily lead to overreaching
12

 moderation or outright censorship.

By its express terms

Section 230 creates a Federal immunity as to any cause of
action that would make a service provider liable for
information originating with third-party users of the
service.

(Zeran, supra, 129 F.3d at p. 330.)

The courts

have consistently applied this immunity broadly, and not
sparingly, to encourage free speech on the Internet.
(See e.g. Nemet Chevrolet, Ltd., v. Consumeraffairs.com,
Inc. (4th Cir.2009) 591 F.3d 250, 254.)

Section 230

precludes any cause of action brought against a person
under any state or local law that is inconsistent with
that section.

(See Carofano v. Metrosplash.com, Inc.

(9th Cir. 2003) 339 F.3d 1119, 1125.)
Both the Communications Decency Act and Penal Code
section 530.5, subdivision (f) protect appellant from
prosecution as he was only an interactive computer
service provider.
3.
The Finding of Guilt of Identify Theft is not
Established on this Record.
The People argued appellant was guilty of identity
theft under Section 530.5(a) because he obtained the
personal identifying information of another and used that
information for an unlawful purpose without the consent
of the person whose information was provided by the third
13

 party or publicly disclosed private facts. Respondent’s
Brief pp. 41-42.)

Contrary to respondent’s claim,

appellant has throughout this case disputed he publicly
disclosed private facts, a separate tort, or that he
obtained or possessed the “private facts” for an unlawful
purpose.

The facts were not private, as discussed, and

had been place in the public domain by the victims
themselves or the third-party providers.
The evidence does not support a finding appellant
willfully obtained, used or publicly disclosed any
personal identifying information of the alleged victims
for an illegal purpose.

In this case the individuals who

supplied the material were ex-boyfriends and/or personal
friends who provided the information to the website.
They would be similar to the third-party defendant in In
Re Rolando S. (2011) 197 Cal.App. 4th 936.

Appellant

however, only provided the opportunity for third parties
to post the information of their choice.

The laws have

not been used to prosecute a website host operator for
crimes based on the actions of third parties.
Respondent appears to argue that appellant exercised
his editorial discretion regarding the placement of
information that was allegedly the personal identifying

14

 information of another person to be used for an unlawful
purpose.

However, the record fails to disclose any such

unlawful purpose.

The protections of the CDA apply

categorically and without any inquiry relative to the
motivations or mental state of the provider in making his
editorial decisions.

(See e.g. Green v. America Online

(3d Cir.2003) 318 F.3d 465, 470-471.)1
Identity theft requires the possession or use of the
personal identifying information of another person for an
unlawful purpose such as fraud or harassment in violation
of Penal Code section 653(m) as argued by the People
below.

However, in this case there was no evidence

appellant contacted any of the alleged victims as is
anticipated by section 653.

He directed no obscene

language to them nor did he harass them in any manner.
These actions were undertaken by third parties unknown to
appellant.

Section 653 applies to third parties who seek

out the website of their own free will, then decide to
take the information on the website and make additional
choices to direct obscene messages to particular people.

1

As noted in Appellant’s Opening Brief it appears that
recently enacted Penal Code section 647, subdivision
(j)(4) could possibly create misdemeanor liability on the
third party providers in this case.
15

 Here, there was no contact by the website operator,
appellant.

The evidence does not support any finding

that appellant possessed, used, distributed or otherwise
illegally dealt with the identifying information of
another person for an unlawful purpose.
Additionally, appellant did not use the personal
identifying information for the purpose of invading the
victim’s privacy or other fraudulent purpose.

California

law as to the civil tort of invasion of privacy requires:
(1) The plaintiff had a reasonable expectation of
privacy and specific information,
(2) The defendant intentionally intruded into that
matter,
(3) The defendant’s intrusion would be highly
offensive to a reasonable person,
(4) The plaintiff was harmed and
(5) The defendant’s contact was a substantial factor
in causing the harm.
The unlawful purpose as to invasion of privacy may
be attributed to the third parties who submitted the
photographs to appellant’s website, but not to appellant.
Appellant did not know any of the alleged victims.

These

third parties sought out his website and chose to use it
to post the photos without permission.

These third

parties acted of their own free will.

Appellant was

unable to tell from these submissions whether the people
16

 submitting the photos were submitting photos of
themselves or of other people without their permission.
A question exists as to whether each of the persons
who had photos submitted had a reasonable expectation of
privacy in the photos.

Most, if not all, of the alleged

victims admitted they knowingly took or allowed to be
taken the photos which they then in turn shared on line
with other people.

Transmissions over the internet are

not reasonably expected to be private.

(See United

States v. Lifshitz (2d Cir. 2004) 369 F.3d 173; Four Navy
Seals v. Associated Press (2005) 413 F.Supp. 1136, 1143.)
As is generally known by any individual even minimally
educated as to the use of computers, smart phones, etc.,
pushing the “Send” button places that message and content
out there for everyone.

Any expectation of privacy then

vanishes.
The evidence fails to establish appellant falls
outside the protections of the Communications Decency Act
or that the identifying information of the individual’s
was possessed, distributed or in any way used for an
unlawful purpose that is not otherwise protected by the
statutes.

There is no good faith requirement written

into the blanket protections of the law.

17

Appellant’s use

 of information provided by the third parties is not
actionable.

Appellant’s convictions under Penal Code

section 530.5(a) must be reversed.

18

 ARGUMENT II
APPELLANT’S EXTORTION CONVICTIONS ARE NOT SUPPORTED BY
SUBSTANTIAL EVIDENCE AND MUST BE REVERSED.
A.

Appellant’s Opening Brief.
The prosecution below argued appellant used the

posting of the photographs on the website to illegally
obtain money from those whose photos were posted.

This

illegality allegedly was his solicitation of a fee to
have the photos removed from the “Yougotposted” website
via the “changemyreputation.com” website.

The argument

below was that appellant threatened to injure the victims
or “expose their secrets” by publishing the images on the
website.
Appellant noted in his opening brief that the
Communications Decency Act provides that internet active
computer service providers and access software providers
are under no legal obligation to remove any postings
submitted to their website by third parties, even those
postings that are negative in nature.

Appellant was,

therefore, under no obligation to remove the negative
content from his website.

He merely offered a service to

remove the photos and, by offering such a service, he was
engaging in a standard legal business practice and not
extortion.
19

 B.

Respondent’s Brief.
Respondent argues this case is not about incidental

harms caused by a “free market economy run amok”.

It is

suggested appellant is a criminal who harmed many people
and not a legitimate business operator.

The respondent

argues that the “threat” of continued exposure of the
photographs was wrongfully used by appellant to extort
money from the victims.

Respondent also argues that the

website contained the victim’s personal information and
therefore appellant was obligated to remove the content
because he was not providing a service he otherwise had a
legal right to perform.

(Respondent’s Brief pp. 42-43.)

Respondent suggests appellant induced fear by threat
to expose a secret because he posted the victim’s private
photographs and their accompanying personal identifying
information.

Respondent claims appellant “implicitly”

threatened to keep posting those images on line until the
victims paid.

Respondent argues the mere posting of the

photos and various indicia of identification such as name
and city as a “threat” to the victim.
Brief p. 45.)

20

(Respondent’s

 C.

Discussion.
Penal Code section 519 describes fear used to extort

and includes threats to:
1.

Do an unlawful injury to the person or property

of the individual threatened or of a third person.
2.

To accuse the individual threatened or any

relative of his, or member of his family, of any crime.
3.

To expose or to impute to him or them any

deformity, disgrace or crime, and
4.

To expose any secret affecting him or them.

As argued in appellant’s case, to be guilty of the
crime of extortion it must be established the person (1)
threatened to unlawfully injure another person or
threatened to expose a secret about another person or to
expose them to disgrace and (2) when making the threat,
the defendant intended to use the fear engendered by that
threat to obtain the person’s consent to give the
defendant money and (3) as a result of the threat the
other person gave the defendant money.

(Penal Code

sections 519, 520.)
In order to establish extortion, the wrongful use of
force or fear must be the operating or controlling cause
compelling the victim’s consent to surrender money to the

21

 extortionist.

(See Chan v. Lund (2010) 188 Cal.App. 4th

1159, 1171.)
In appellant’s case the People proceeded on the
theory the third-party postings constituted exposure of a
secret affecting the persons portrayed in the photos.
The posting done by appellant on the website of this
information provided solely by third parties does not
constitute a threat to expose any secret as to the other
persons because the alleged secret (the photos) was
already in the public domain and had been provided by the
third parties unaccompanied by any demand for payment.
Appellant merely provided a service whereby, for payment
of a fee, the information legally posted on the website
could be removed.
Respondent’s attempts to distinguish Levitt v.
Yelp!, Inc., supra, are not persuasive.

There the Ninth

Circuit found that Yelp!, Inc., a website allowing the
public to post reviews of businesses, was not engaging in
extortion by calling those businesses and asking them to
pay for advertising in exchange for more favorably placed
good reviews, fewer negative reviews and overall higher
ratings.

In Yelp!, business owners had claimed they

received less than favorable reviews from customers that

22

 in turn were posted on Yelp!.

The owners would later be

contacted by representatives of Yelp! asking them to pay
for advertising with assurances that the result would be
more positive reviews, fewer negative reviews and/or the
listing of reviews in such an order as to place some more
favorable reviews on top.2
A number of the plaintiffs in Yelp! claimed that if
they rejected the solicitation for advertising, positive
reviews would be totally removed and negative reviews
elevated.

It was also alleged that Yelp! was fabricating

negative reviews that made disparaging and untrue claims
about the businesses.

There were claims that Yelp!

manipulated the rating system to give the non-advertising
companies poor ratings.

In many ways, Yelp’s conduct

could be deemed more egregious than appellant’s.

In

Yelp!, not only was the advertising fee solicited with
the implied promise of positive reviews placed in a more
prominent spot, but, where the solicitation to advertise
was rejected, Yelp! posted additional negative reviews

2

The San Diego Reader (10/7/15) printed an article where
local business owners similarly claimed negative reviews
accentuated when they failed to pay the advertising fee
but that some false reviews were posted.
23

 and/or intentionally re-adjusted the reviews so that the
negative ones were then prominently displayed.

In this

case appellant merely posted the removal information.

At

no time was it shown that he modified or added to any
posting when payment was not made.

In fact, a number of

postings were removed by appellant without any payment
being made.
In Yelp!, the Court discussed the Hobbs Act (a civil
extortion statute) and California Penal Code sections 519
and 520, those charged here.

The court concluded the

statutes were virtually identical.

The Court concluded

that Yelp!, as an internet service provider, was not
engaging in extortion.

The court stated:

In sum, to state a claim of economic extortion under
both Federal and California law, the litigant must
demonstrate either that he had a pre-existing right
to be free from the threatened harm, or that the
defendant had no right to seek payment for the
service offered. Any less stringent standard would
transform a wide variety of legally acceptable
business dealings into extortion.
Yelp! was simply offering a service when it offered to
remove negative reviews from its web page.

The offering

of that service in exchange for money amounted to a
legitimate business practice.

(Id.)

Respondent appears to seek expansion of the criminal
statutes and/or dilution of the Communications Decency
24

 Act because respondent finds appellant’s posting of the
photos so morally reprehensible.

Neither the nature of

the postings nor the posting by appellant warrants the
evisceration of the Congressional protections approved in
such cases as Yelp!.

Though respondent finds appellant’s

conduct to be reprehensible, his conduct was nonetheless
protected by law.

It did not amount to extortion under

prevailing legal principles.
Extortion is a specific intent crime.
Hesslink (198) 167 Cal.App. 3d 781, 788.)

(People v.
In this case,

there was no evidence that appellant threatened to expose
a secret or disgrace any alleged victim.

He personally

did not threaten any victim and there could be no threat
to expose a secret or disgrace when that very secret or
disgrace had already been exposed.
threats, direct or implied.

Appellant made no

He never sought out or

contacted any of the victims and took no action by word
or mouth to threaten them.

Information that is publicly

available on websites to anyone interested in knowing
about it does not constitute a secret for purposes of
extortion.

(Cross v. Cooper (2011) 197 Cal.App. 4th 357,

387-388.)
The fact that some other person may be unaware of

25

 the existence of the “secret” is not controlling.

Cross

undermines respondent’s reliance on People v. Peniston
(1966) 242 Cal.App. 2d 719.

In Peniston, the Court of

Appeal concluded that a threat to expose nude photographs
of the victim to her husband and parents constituted
sufficient evidence of extortion, even though the same
photographs were widely circulated.

(People v. Peniston,

supra, 242 Cal.App. 2d at p. 722.)
Peniston is distinguishable in several important
areas.

First, in Peniston the person threatening to

expose the photographs was in actual possession of those
photographs.

Here, the photographs were provided to

appellant through third parties who had been given access
to the photographs by the victims.

Further, Peniston was

a 1966 case and did not deal with publication through the
Internet.

The court could therefore not have discussed

the voluminous recent legislation providing protection to
internet site operators such as appellant who received
the photos or information from third parties.

Peniston

simply does not apply.
Respondent’s suggestion that because there may be
one person on the planet who is not aware of the photos,
the information is still “secret” does not ring true

26

 here.

For the victims, once those photographs were sent

over the Internet, they can reasonably be presumed to
have known it would be viewed or shared by other persons.
Here, no demands were made of the victim before the
photos were posted on the website.

Appellant merely

provided a service whereby the photos could be removed.
While reprehensible, this was not illegal.
supra, 765 F. 3d at p. 1127.)

(Yelp!,

The fact appellant

provided a means by which already exposed information
could be removed does not support the charge of
extortion.

27

 ARGUMENT III
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY WITH CACI
CIVIL LITIGATION INSTRUCTIONS THAT ALLOWED THE JURY TO
ELEVATE A POSSIBLE CIVIL WRONG INTO AN ELEMENT OF THE
CRIMINAL OFFENSE OF UNAUTHORIZED USE OF PERSONAL
IDENTIFYING INFORMATION BASED ON PENAL CODE SECTION 653m,
SUBDIVISION (a).
A.

Appellant’s Opening Brief.
The trial court had instructed the jury that an

unlawful purpose required for the unauthorized use of
personal identifying information as charged in various
counts could be shown based upon a violation of Penal
Code section 653m, subdivision (a).

The court instructed

the jury with two civil instructions, CACI 1800 and 1801,
intrusion into private affairs and public disclosure of
private facts, respectively.

(2CT pp. 387-388.)

Appellant argued that each of the instructions was
based upon civil liability and actions arising from
obligations under civil law.

The trial court, by giving

the instructions, elevated these alleged possible civil
wrongs into an unlawful “criminal” purpose such as to
become crucial elements of establishing a violation of
Penal Code section 653m, subdivision (a).

In turn, these

“elements” of the crime could be found based on a civil
law theory and establish the use of personal identifying
information for an “unlawful” purpose.
28

 Appellant argued that giving the instruction was
error as the standard applied to a civil wrong is lower
than beyond a reasonable doubt.

The trial court wrongly

allowed the use of some civil wrong to be elevated by the
jury into a criminal wrong supporting a required unlawful
purpose.

The error here was prejudicial, particularly in

light of the inability to determine whether jurors relied
on this theory to support their convictions for identify
theft.
B.

Respondent’s Brief.
Respondent argues that any error in giving the

instructions was invited by appellant’s counsel and that,
if construed as a whole, the jurors were more than able
to determine every element beyond a reasonable doubt.
Respondent argues that since defense counsel sought
the instructions, any error in giving them was invited by
defense counsel.

Further, respondent argues that, given

the totality of the instructions given to the jury, the
jury would have concluded appellant was guilty of all
elements of the charged offenses beyond a reasonable
doubt.

(Respondent’s Brief pp. 57-59.)

29

 C.

Discussion.
It appears from the record that while respondent is

technically correct that appellant’s counsel requested
the CACI instructions, it was only in response to the
court’s expressed intention to instruct the jury under
other civil instructions contained in BAJI.
995.)

(7RT p.

It is reasonable to infer that since the court was

going to give some type of a civil instruction as to the
violation of section 653m, defense counsel proposed their
own.
Appellant’s issue with the instructions was that it
was not made clear to the jury that the instructions
encompassed what is basically a civil wrong and how that
civil wrong could somehow be used to support a violation
of Penal Code section 653m.

Appellant believes that the

trial court, having determined to give civil instructions
as to elements needed to be proved under the People’s
theory under Penal Code section 653m, was then under an
obligation to clarify that the civil instructions do not
fall under a lesser standard.

In other words, that the

burden of proof is not lessened for the People by the
giving of these instructions.

(See Partach v. Banning

(1967) 251 Cal.App. 3d 278, 286.)

30

 The court instructed the jury they could use either
intrusion into private affairs as described under civil
law or public disclosure of private facts, also as
described in civil law, to be equivalent to an unlawful
(criminal) purpose required to establish elements of the
crime of identity theft.

These theories were strongly

argued by the People in support of the identify theft
counts.

Here the court should have instructed on the

general principle that the civil wrongs must be proved
beyond a reasonable doubt in order to make a finding in
support of an identity theft criminal charge.

(See

People v. Sedeno (1974) 10 Cal.3d 703, 715-716.)

Since

it cannot be determined the jury applied the correct
standard, the error requires reversal of appellant’s
convictions.

31

 CONCLUSION
For the foregoing reasons appellant requests that
his convictions be reversed.

Respectfully submitted,

/s/PATRICK J. HENNESSEY, JR.
PATRICK J. HENNESSEY, JR.
Attorney for Defendant

32

 CERTIFICATION OF WORD COUNT
People v. Bollaert
I, Patrick J. Hennessey, Jr., hereby certify that
according to the computer program used to prepare this
document, Appellant’s Reply Brief contains 5,323 words.
I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and
correct.

Executed this 19th of February, 2016, in San

Diego, California.

/s/PATRICK J. HENNESSEY, JR.
PATRICK J. HENNESSEY, JR.
Attorney for Defendant

33

 PROOF OF SERVICE BY MAIL/ELECTRONIC SERVICE SUBMISSION
I, the undersigned, declare that: I am over the age of eighteen years and not a
party to the action; I am employed in the County of San Diego, California, within
which county the subject mailing occurred; my business address is 2356 Moore
Street, Suite 201, San Diego, California; I am familiar with this firm's practice for
collection and processing correspondence for mailing with the United States Postal
Service pursuant to which practice all correspondence will be deposited with the
United States Postal Service the same day in the ordinary course of business. I
served the following document(s):
Appellant's Reply Brief
by placing a copy thereof for each addressee named hereafter, addressed to each
such addressee, in a separate envelope, postage prepaid, sealed and deposited at
this firm's mailstation on 2/22/16 .
Kevin Bollaert
Booking #15707263
446 Alta Road, Ste. 5300
San Diego, CA 92158

PROOF OF SERVICE BY ELECTRONIC SERVICE/SUBMISSION
CAL.RULES OF COURT, RULES 2.251(i)(I)(A)-(D) and 8.71(f)(1)(A)-(D)
I server declare I electronically served from my service address the same
referenced above document on:

Attorney General
ADIEService@doj.ca.gov

Appellate Defenders Inc.
eservice-criminal@adi-sandiego.com

SanDiegoSuperiorCourt
Appeals.central@sdcourts.ca.gov

District Attorney
Da.appellate@sdcda.org

I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on 2/22/16.
/s/PATRICK J. HENNESSEY, JR.
PATRICK J. HENNESSEY, JR.

34