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

THE PEOPLE OF THE STATE OF CALIFORNIA,
Plaintiff and Respondent,

Case No. D067863

v.
KEVIN CHRISTOPHER BOLLAERT,
Defendant and Appellant.

San Diego County Superior Court, Case No. SCD252338
The Honorable David M. Gill, Judge
RESPONDENT’S BRIEF
KAMALA D. HARRIS
Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
JULIE L. GARLAND
Senior Assistant Attorney General
ERIC A. SWENSON
Supervising Deputy Attorney General
JUNICHI P. SEMITSU
Deputy Attorney General
GARRETT A. GORLITSKY
Deputy Attorney General
STEVE OETTING
Deputy Solicitor General
State Bar No. 142868
600 West Broadway, Suite 1800
San Diego, CA 92101
P.O. Box 85266
San Diego, CA 92186-5266
Telephone: (619) 645-2206
Fax: (619) 645-2012
E-mail: Steve.Oetting@doj.ca.gov
Attorneys for Plaintiff and Respondent

 TABLE OF CONTENTS
Page
Introduction ...............................................................................................1
Statement of the Case.................................................................................3
Statement of Facts......................................................................................4
Argument ................................................................................................. 20
I.

Appellant was an “information content provider,” or
alternatively acted with an intent to defraud, and
therefore he was not immune to prosecution for
identity theft; further, substantial evidence supports his
convictions .........................................................................20
A.

Applicable law .........................................................21

B.

Appellant was an information content provider
and therefore fell outside the exclusion of Penal
Code section 530.5, subdivision (f) ..........................25

C.

Appellant retained possession of personal
identifying information with the intent to
defraud the victims ..................................................32

D.

There was no First Amendment violation.................34

E.

Appellant willfully obtained personal
identifying information ............................................ 34

F.

Appellant used the personal identifying
information for an unlawful purpose ........................ 35
1.

Section 653m ................................................35

2.

Intrusion into private affairs ..........................37

3.

Public disclosure of private facts ...................41

4.

Any error was harmless .................................42

II.

Substantial evidence supports appellant’s convictions
for extortion........................................................................42

III.

Appellant invited any error regarding the CACI
instructions he requested; in any event, the
instructions, when construed as a whole, required the
jury to determine every element beyond a reasonable
doubt ..................................................................................53

Conclusion ...............................................................................................61

i

 TABLE OF AUTHORITIES
Page
CASES
Barnes v. Yahoo! Inc.
(9th Cir. 2009) 570 F.3d 1096.............................................................. 28
Barrett v. Rosenthal
(2006) 40 Cal.4th 33 ............................................................................ 22
Batzel v. Smith
(9th Cir. 2003) 333 F.3d 1018........................................................ 26, 28
Boyde v. California
(1990) 494 U.S. 370 ............................................................................ 55
Brown v. Payton
(2005) 544 U.S. 133 ............................................................................ 55
Carafano v. Metrosplach.com, Inc.
(9th Cir. 2003) 339 F.3d 1119............................................ 26, 27, 28, 31
Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc.
v. Craigslist, Inc.
(7th Cir. 2008) 519 F.3d 666 ............................................................... 22
Cross v. Cooper
(2011) 197 Cal.App.4th 357 .................................................... 44, 48, 49
Diaz v. Oakland Tribune, Inc.
(1983) 139 Cal.App.3d 118 ................................................................. 41
Dietemann v. Time, Inc.
(9th Cir. 1971) 449 F.2d 245 ............................................................... 40
Doe II v. MySpace Inc.
(2009) 175 Cal.App.4th 561 ................................................................ 28
Doe v. GTE Corp.
(7th Cir. 2003) 347 F.3d 655 ............................................................... 22

ii

 TABLE OF AUTHORITIES
(continued)
Page
F.T.C. v. Accusearch Inc.
(10th Cir. 2009) 570 F.3d 1187...................................................... 23, 30
Fair Housing Council of San Fernando Valley v.
Roommates.Com, LLC
(9th Cir. 2008) 521 F.3d 1157.......................................................passim
Flatley v. Mauro
(2006) 39 Cal.4th 299 .................................................................... 34, 52
Four Navy SEALs v. Associated Press
(S.D. Cal. 2005) 413 F.Supp.2d 1136 ............................................ 40, 41
Giboney v. Empire Storage & Ice Co.
(1949) 336 U.S. 490 ............................................................................ 34
Howard Contracting, Inc. v. G.A. MacDonald
Construction Co.
(1998) 71 Cal.App.4th 38 .................................................................... 52
In re Rolando S.
(2011) 197 Cal.App.4th 936 .............................................. 35, 37, 59, 60
Jackson v. Virginia
(1979) 443 U.S. 307 ............................................................................ 21
Jones v. Dirty World Entertainment Recordings, LLC
(6th Cir. 2014) 755 F.3d 398 ......................................................... 29, 30
Korea Supply Co. v. Lockheed Martin Corp.
(2003) 29 Cal.4th 1134 ........................................................................ 59
Leser v. Penido
(2009) 879 N.Y.S.2d 107 ..................................................................... 45
Levitt v. Yelp! Inc.
(9th Cir. 2014) 765 F.3d 1123 (Yelp!) ................................ 50, 51, 52, 53
Melvin v. Reid
(1931) 112 Cal.App. 285 ............................................................... 42, 49
iii

 TABLE OF AUTHORITIES
(continued)
Page
People v. Barba
(2012) 211 Cal.App.4th 214 ..................................................................2
People v. Booth
(1996) 48 Cal.App.4th 1247 ................................................................ 32
People v. Cain
(1995) 10 Cal.4th 1 .............................................................................. 55
People v. Castillo
(1997) 16 Cal.4th 1009 ........................................................................ 55
People v. Choynski
(1892) 95 Cal. 640 ............................................................................... 44
People v. Crittenden
(1994) 9 Cal.4th 83.............................................................................. 52
People v. Gionis
(1995) 9 Cal.4th 1196 .......................................................................... 34
People v. Guiton
(1993) 4 Cal.4th 1116 .................................................................... 42, 53
People v. Jenkins
(1994) 29 Cal.App.4th 287 .................................................................. 55
People v. Kelly
(1992) 1 Cal.4th 495 ............................................................................ 55
People v. Kraft
(2000) 23 Cal.4th 978 .................................................................... 21, 49
People v. Lavine
(1931) 115 Cal.App. 289 ..................................................................... 47
People v. Lucero
(2000) 23 Cal.4th 692 .......................................................................... 54

iv

 TABLE OF AUTHORITIES
(continued)
Page
People v. Massengale
(1968) 261 Cal.App.2d 758 ........................................................... 44, 45
People v. Mills
(1991) 1 Cal.App.4th 898 .................................................................... 55
People v. Oppenheimer
(1962) 209 Cal.App.2d 413 ..................................................... 44, 45, 49
People v. Peniston
(1966) 242 Cal.App.2d 719 ............................................... 47, 48, 51, 52
People v. Price
(1991) 1 Cal.4th 324 ............................................................................ 55
People v. Reed
(1961) 190 Cal.App.2d 344 ................................................................. 33
People v. Seaton
(2001) 26 Cal.4th 598 .......................................................................... 54
People v. Snow
(2003) 30 Cal.4th 43 ............................................................................ 21
People v. Turner
(2004) 34 Cal.4th 406 .......................................................................... 54
People v. Van Winkle
(1999) 75 Cal.App.4th 133 .................................................................. 55
People v. Weaver
(2001) 26 Cal.4th 876 .......................................................................... 54
Philippine Export & Foreign Loan Guarantee Corp.
v. Chuidian
(1990) 218 Cal.App.3d 1058 ............................................................... 52
R.A.V. v. City of St. Paul
(1992) 505 U.S. 377 ............................................................................ 34

v

 TABLE OF AUTHORITIES
(continued)
Page
Rejent v. Liberation Publications, Inc.
(1994) 611 N.Y.S.2d 866 ..................................................................... 45
Sanders v. American Broadcasting Cos.
(1999) 20 Cal.4th 907 (Sanders) ........................................ 39, 40, 41, 59
Shulman v. Group W Productions, Inc.
(1998) 18 Cal.4th 200 .................................................................... 38, 41
United States v. Lifshitz
(2d Cir. 2004) 369 F.3d 173................................................................. 40
United States v. Quinn
(5th Cir. 1975) 514 F.2d 1250.............................................................. 34
Universal Communication Systems, Inc. v. Lycos, Inc.
(1st Cir. 2007) 478 F.3d 413 ................................................................ 28
Zeran v. America Online, Inc.
(4th Cir. 1997) 129 F.3d 327 ......................................................... 24, 28
STATUTES
United States Code, Title 47
§ 230(b)(5) .......................................................................................... 24
§ 230(c) ............................................................................................... 24
§ 230(c)(1)........................................................................................... 23
§ 230(d)(1) .......................................................................................... 24
§ 230(d)(3) .......................................................................................... 24
§ 230(f) .................................................................................................2
§ 230(f)(2) ........................................................................................... 22
§ 230(f)(3) ..................................................................................... 23, 26
Code of Civil Procedure
§ 425.16 .............................................................................................. 48
Communications Decency Act (CDA) ...............................................passim
Digital Millennium Copyright Act (DMCA),
17 U.S.C. § 512(c) ............................................................... 9, 15, 16, 17
vi

 TABLE OF AUTHORITIES
(continued)
Page
Hobbs Act
(18 U.S.C. § 1951(b)(2))...................................................................... 51
Penal Code
§ 7, subd. (1)........................................................................................ 35
§ 123 ................................................................................................... 43
§ 182, subd. (a)(1) .................................................................................3
§ 518 ............................................................................................. 43, 51
§ 519 ....................................................................................... 43, 45, 51
§ 519, subd. (1).............................................................................. 50, 51
§ 519, subd. (3)........................................................................ 45, 49, 51
§ 519, subd. (4).............................................................................. 45, 51
§ 520 ................................................................................................. 2, 3
§ 523 ................................................................................................... 45
§ 530.5 .........................................................................................passim
§ 530.5, subd. (a) ..........................................................................passim
§ 530.5, subd. (f) ..........................................................................passim
§ 530.55 .............................................................................................. 52
§ 530.55, subd. (b) ......................................................................... 21, 28
§ 653m .........................................................................................passim
§ 653m, subd. (a) ........................................................................... 35, 36
§ 654 .....................................................................................................4
§ 1118.1 ................................................................................................3
§ 1170, subd. (h) ....................................................................................4
CONSTITUTIONAL PROVISIONS
United States Constitution
First Amendment ................................................................................. 34
OTHER AUTHORITIES
5 Witkin Summary of California Law,
Torts, § 658 p. 963............................................................................... 38

vii

 INTRODUCTION
Appellant Kevin Bollaert operated a website called
“UGotPosted.com,” which encouraged users to post private, intimate
photographs of others. As the very name of appellant’s website—
UGotPosted—suggests, it was intended to notify victims that someone else
had posted pictures of them without the victims’ consent. In order to post
such pictures, the website required the poster to include personal
identifying information of the person depicted, including that person’s full
name, city of residence, and Facebook profile link. Typically, the posters
were scorned lovers who obtained the photographs before the relationship
soured and then posted them on appellant’s website without the victims’
consent; in other cases photographs were taken of victims while they were
unaware or incapacitated, and sometimes the photos were stolen from the
victims. Appellant relied on other Internet users to see the postings and
contact the victims using the victims’ posted identifying information. For
many of the victims, the results were disastrous. Some of the victims
received hundreds of unwanted and sometimes threatening contacts,
resulting in humiliation, social ostracization, and even loss of employment.
Many victims understandably suffered deep depression, and at lease one
even attempted to take her own life.
Appellant’s intent in operating the website was to extort money from
the victims in exchange for removing the damaging photos and identifying
information. Shamed, harassed and embarrassed, the victims would
invariably seek to have the photographs taken down. When the victims
appealed to appellant’s website to remove the photos, they were often
directed to another website appellant operated called
“ChangeMyReputation.com.” On that website, appellant would agree to
remove the photographs in exchange for a payment via PayPal or Amazon
gift card. And many desperate victims paid.

1

 Appellant was convicted of multiple counts of unauthorized use of
personal identifying information (Pen. Code, § 530.5, subd. (a))1—
commonly referred to as “identity theft”2—and extortion (§ 520). The crime
of identity theft requires use of personal identifying information for an
unlawful purpose. The prosecution proceeded on three separate theories to
establish appellant’s unlawful purpose, based on violations of section 653m
(contact by electronic communication with intent to annoy), public
disclosure of private facts, and intrusion into private affairs. The jury
returned special findings demonstrating which of the theories they relied
upon for each count.
Appellant now appeals, claiming there was insufficient evidence to
support his conviction under section 530.5 because he fell within an
exception under the Communications Decency Act (CDA), 47 United
States Code section 230(f), for “interactive service providers” or “access
software providers,” and he was not an “information content provider.” But
appellant is mistaken. By requiring users to post personal identifying
information, appellant became an “information content provider” because
he was responsible as a developer and provider of the content he required;
thus, he was no longer a mere “interactive service provider” or “access
software provider”. In any event, because he intended to defraud victims by
concealing his true identity as the operator of both websites, the exception
appellant relies on would not apply. Further, there was more than ample
evidence that appellant willfully committed identity theft by possessing the
victims’ personal identifying information for a variety of unlawful reasons.
1

noted.

All further references are to the Penal Code, unless otherwise

2

Although commonly referred to as “identity theft,” as this Court
has pointed out, nothing in section 530.5 refers to that term. (People v.
Barba (2012) 211 Cal.App.4th 214, 226.)

2

 Appellant also challenges the sufficiency of the evidence to support
the extortion charges. According to appellant, he did nothing more than
engage in “standard business practice.” But the evidence demonstrates he
committed extortion by threatening the continued exposure of the victims’
naked photos unless they paid to have those photos removed.
Finally, appellant argues that the trial court’s instructions that allowed
the jury to convict him of an unlawful purpose to commit identity theft
based on a tortious invasion of the right to privacy lowered the burden of
proof to a civil preponderance of the evidence standard. Appellant is
incorrect. The court’s instructions, which appellant requested,
unambiguously required proof beyond a reasonable doubt. While the
instructions correctly noted that tortious invasions of the right to privacy
could constitute an unlawful purpose, that intent to commit a tortious act
still had to be proved beyond a reasonable doubt. Accordingly, the
judgment should be affirmed.
STATEMENT OF THE CASE
The California Attorney General’s Office filed an amended
information in the San Diego County Superior Court charging appellant
with one count of conspiracy to commit identity theft (§§ 182, subd. (a)(1),
530.5, subd. (a)), nine counts of extortion (§ 520), and 26 counts of identity
theft. (1CT 164-175.)
Appellant pleaded not guilty and proceeded to trial by jury. (1RT 8.)
At the conclusion of the People’s case-in-chief, the trial court granted
appellant’s motion to dismiss four counts of identity theft and three counts
of extortion, and renumbered the remaining counts. (1CT 164-175.) The
court otherwise denied appellant’s motion to dismiss the remaining counts
under section 1118.1. (7RT 906-950.)
The jury found appellant guilty of 6 counts of extortion and 21 counts
of identity theft. (3CT 724-771.) The jury deadlocked as to the conspiracy

3

 charge (count 1) and one count of identity theft (count 25), and the court
declared a mistrial as to those counts. (3CT 772.) The prosecution
proceeded on three separate theories of identity theft and the jury was
asked, to the extent it was unanimous, to make special findings as to which
of these theories was true. As to renumbered counts 2, 4-6, 8-15, 19, 23,
and 26, the jury found that appellant committed an unlawful act of invasion
of privacy by disclosure of private facts. (3CT 724-725, 727-732, 735-750,
755-756, 762-763, 766-767.) For counts 7, 17, 20, 22, 24, and 28 the jury
did not return any special finding. (3CT 733-734, 752-753, 757-758, 760761, 764-765, 769-770.)
The court initially sentenced appellant on April 3, 2015, to a total
term of 18 years in jail, comprised of a middle 3-year term for count 3 and
one-third the midterm (i.e., 8 months for the identity theft counts and 1 year
for the extortion counts) consecutive for each of the remaining counts, with
the exception of counts 2, 15, 17, 26, 28, which the court stayed under
section 654. (9RT 1644-1653; 3CT 773-777.)
Appellant filed a notice of appeal from the judgment on April 13,
2015. (3CT 646.)
However, the court recalled the sentence and resentenced appellant on
September 21, 2015. At that time, the trial court again imposed an 18-year
term, but determined the sentence would be “split” under section 1170,
subdivision (h), to provide for eight years of local confinement followed by
ten years of mandatory supervision. (9/21/15 RT at 91.)

4

 STATEMENT OF FACTS3
The California Attorney General’s Office became aware of the
UGotPosted.com website around October 2012, and opened an
investigation. (7RT 857-858.) The site contained naked photos of men and
women, as well as an opportunity for commentators to post remarks about
the photos. (7RT 859.) Many, but not all, of the persons depicted in the
photos were from California. (7RT 858.) The UGotPosted site was
configured with a banner at the top of the page; beneath this was a
disclaimer; the photos for a particular individual came next; and finally,
under the photos were the specific comments for that individual. On the
right hand side of the page was a navigation bar; on the bottom was a link
to contact the administrator. (5RT 448-449.) The administrator, who had
the ability to select photos that were posted, create descriptive content and
text, and moderate comments, had to approve comments before they were
published. (5RT 488.) The site could be searched based on name or
geographic location of the persons who were posted. (5RT 456; 7RT 864.)
As designed, the UGotPosted site required posters to provide information in
several fields before they could submit anything. These required fields
included the following: 1. The email address of the submitter; 2. The full
name of the person posted; 3. The location of the person posted, including
the city, county and state; 4. The age of the person posted (who was
nominally required to be over 18); 5. Facebook links to the posted person’s
page; 6. The poster’s agreement to the conditions of use; and 7. Photos.
(5RT 452-454, 509-510, 525.)4
3

This Statement of Facts omits testimony relating to the counts on
which the jury hung, as well as testimony regarding an additional
uncharged offense.
4
Appellant asserts that the site “asked for, but did not demand,
Facebook information.” (AOB 17.) That is incorrect. Providing a
(continued…)

5

 After determining that appellant was the registered owner of
UGotPosted.com and that he operated the site in San Diego, Special Agent
Brian Cardwell of the Department of Justice eCrimes Unit arranged a
meeting with him at a hotel lobby on September 18, 2013. (6RT 782, 785,
790-791; ex. 1.) During the meeting, which Special Agent Cardwell
surreptitiously recorded (exs. 1, 3), appellant admitted owning and
designing the site, which required users to post a full name, date of birth,
location and Facebook link.5 (2CT 289.) According to appellant, he created
the site because it was “fun and entertaining.” (2CT 292.) He started the
site roughly a year earlier with Eric Chanson; Chanson declined to
participate after December 2012 and so he agreed to transfer the ownership
rights to appellant. (2CT 292, 297, 299.) During the year of its operation,
appellant received approximately 10,000 posts, and he personally examined
each one. (2CT 299-300.)6 Appellant would not post submissions that did
not include nude photos, and he would place a proprietary watermark on all
photos to prevent theft by another website. (2CT 298-299.) Appellant
denied making any significant money from the site. (2CT 290.) Although
the site provided his sole source of employment, according to appellant he
received only $900 a month from advertising. (2CT 303.) Ultimately,
appellant decided to take the site down because it was too much “stress,”
and was “ruining [his] life.” (2CT 287, 292.) At the end of the interview,

(…continued)
Facebook link was a required field; other additional information, such as a
Tumblr or Twitter account was optional. (5RT 493-494.)
5
Appellant maintained that a poster could provide a fake name and
Facebook link. (2CT 289.) However, appellant apparently verified the
postee’s identity, going onto victims’ Facebook pages to view photographs
on 2,300 separate occasions. (5RT 493-494.)
6
Exhibit 14 contains one page from the list of 10,000 victims. (5RT
390.)

6

 appellant provided the encryption codes for several of his laptops so that
Agent Cardwell could copy the hard drives. (6RT 818.) A subsequent
examination of appellant’s email accounts revealed that the majority of
2,500 emails sent to appellant consisted of requests to have images
removed from his site. (6RT 841.)
Forensic computer expert Mark Kelly conducted a forensic
examination of appellant’s primary computer. (5RT 380-381.) Kelly
determined that appellant was the website administrator, or the person in
control over the website, and he had the only user account on the computer.
(5RT 394-395, 422.) The administrator had to review and approve each
submission before it could be posted. (5RT 396, 526.)7 Appellant’s online
moniker was “Vindictive2786”. (5RT 433.) Some of the documents
captured from his computer included conversations between appellant and
Chanson regarding the design of the website. (5RT 433, 436.) In one such
exchange, appellant stated that he was in control of the website and he
made the decisions. (5RT 436; ex. 46.) They also discussed removing
photos only in exchange for payment. (5RT 438.) When someone would
send appellant a request to have images removed, appellant would direct
that person to a separate website he set up, ChangeMyReputation.com, to
pay; once the person paid, the information was removed. (5RT 439; ex. 79
[examples of emails in which this occurred].)
A forensic audit revealed that the website received over $30,000 in
payments via PayPal. (7RT 894; ex. 87.) The Attorney General’s Office
used the contact information on the website to reach out to victims. (7RT
859.)
7

At one point the Attorney General’s Office attempted to submit
photos of cats, rather than naked humans, to determine whether the website
administrator was actively reviewing the photos before they were posted;
the photos of the cats were never posted. (7RT 860-861.)

7

 Counts 2 and 3: Identity theft and extortion of Rebecca.
Rebecca awoke one morning in March 2013 to find that she had six
missed calls from her manager and had received roughly 300 Facebook
messages from strangers. (6RT 627, 629; exs. 41, 62.) She discovered that
intimate, naked photos of herself and her ex-fiancée were posted on the
UGotPosted site, along with her full name, work location, Facebook link
and age. (6RT 629.) Her fiancée had taken the pictures about a year earlier,
before they broke up. (6RT 637.) Someone had contacted her manager at
work and let him know that Rebecca was doing “suspicious activity on the
Internet.” (6RT 627.) Hurt and embarrassed, Rebecca felt that she had
become an involuntary “pornography star” and she was afraid that her
seven-year-old son would learn of the postings. (6RT 638.)
Rebecca emailed the website, demanding that the photos be taken
down, but she did not receive a response. (6RT 632-633, 636.) Based on a
link she found on the UGotPosted site, she also emailed
ChangeMyReputation.com. She received a response from the latter email
within a few minutes, directing her to pay $249.99 via PayPal. (6RT 633636.) Rebecca paid the money because she felt the pictures were disgusting,
and also because the nude photos were the first images that appeared when
she Googled her name. (6RT 635-636.) Although she knew some people
had already seen the images, she paid so that other people would not. (6RT
639.)
Count 4: Identity theft of Brianna
In October 2013, strangers began contacting Brianna on Facebook,
informing her that her photographs had been posted on UGotPosted.com.
(4RT 268; ex. 76.) Some of the strangers solicited her for sex, others
generally harassed her. (4RT 273.) Some people called her work and tried
to get her fired. (4RT 273.) Brianna went on the website and saw naked
photos of herself, which were taken without her knowledge by a former

8

 boyfriend and were posted without her consent. (4RT 270-273, 275.) Other
clothed photos that she had posted on Facebook were also on the
UGotPosted site, again without her consent. (4RT 270.) Brianna sank into
depression as a result of the experience and did not want to see anyone or
go anywhere. (4RT 273.) She contacted the website, asking to have the
photos removed, but no one responded to her emails. (4RT 272, 276.)
Count 5: Identity theft of Jane Doe
In May 2013, Jane Doe began receiving explicit and vulgar messages
from men. (5RT 605.) She found her images were posted on several
websites, including UGotPosted. (5RT 606; ex. 1, 18.) That website
included many photos of her, as well as the name of the law school she was
attending, her Facebook page, telephone number, and Instagram and
Twitter accounts. (5RT 606, 511.) Jane had sent the pictures to her
boyfriend, who in turn posted them without her consent. (5RT 608.)
Some of the comments discussed plans to rape Jane; other comments
addressed her promiscuity. (5RT 609.) Because one of the comments
suggested that she was sleeping with her professors, she was ultimately
contacted by school administrators and was forced to endure an honor
board investigation and hearing. (5RT 606-607.)
Jane worked with an FBI agent, but was unsuccessful in having her
photos removed. She hired an attorney, who contacted UGotPosted and was
able to have the photos removed after another two weeks, but only after
Jane had her photos copyrighted and filed a complaint under the Digital
Millennium Copyright Act (DMCA), 17 U.S.C. § 512(c). (5RT 610, 614.)
The subject of the photos came up frequently when Jane interviewed
for employment with various law firms; she did not receive any offers.
(5RT 607-608.) Jane spent her days crying; at night, she would fall asleep
holding a can of pepper spray. (5RT 606.) Afraid that she would be raped,

9

 Jane did not leave her house unless absolutely necessary. (5RT 609.)
Eventually, she went to therapy. (5RT 606.)
Count 6: Identity theft of V.
In July 2013, V. became aware that photos of her had been posted on
UGotPosted when she began receiving “nonstop” text messages and
“hundreds” of Facebook comments from strangers. (6RT 771-772, 774775.) She discovered that naked photos of her were published on the site,
along with her full name, and Facebook and Twitter links. (6RT 773; ex.
77.) Commentators on the site made racist and vulgar remarks. (6RT 774.)
She presumed that her former boyfriend must have taken the pictures while
she was unaware; she did not consent to have them taken or posted. (6RT
771.) V. was forced to have her phone disconnected, and she either shut
down her social media or changed the privacy settings. (6RT 772.) When
her friends found out about the photos, she became withdrawn and isolated.
(6RT 773-774.) At the time, she was looking for a job, and so she was
forced to give up her search, knowing that any future employer would
likely Google her name, which is unique. (6RT 773.) She wrote three to
five emails to the website and eventually the photos were removed. (6RT
775.)
Count 7: Identity theft of Alice
While at a party in August 2013, someone drugged Alice’s drink. She
woke up the next morning without any memory of what had occurred. (4RT
277-278.) A few days later, Alice began receiving messages from strangers
saying she had been “posted.” (4RT 278.) She went on the UGotPosted
website and saw naked pictures of herself, taken while she was
incapacitated and placed in compromising positions, as well as her address.
(4RT 280, 282; ex. 75.) Other pictures depicted her clothed and were taken
from her Facebook site. (4RT 281.) Comments on the website frightened
her. (4RT 283.) She did not give anyone permission to post any of her

10

 photos. (4RT 281.) Alice sent an email to the website asking to have the
photos removed, but the response said she would have to pay. (4RT 283.)
As a result of the posting, she lost friends; someone notified her employer;
and she received harassing messages telling her to kill herself. (4RT 284.)
Count 8: Identity theft of Nina
In August 2013, Nina’s father, a police officer, notified her that
photos of her had been posted on UGotPosted.com. (5RT 399.) She
discovered that naked pictures of her had been posted along with her full
name, Facebook page, city and state. (5RT 400, 403; ex. 78.) A profile
picture had also been “stolen” from her Facebook page. (5RT 402.) She had
originally sent the naked photos to a friend from high school, and later
asked him to delete them. (5RT 404-405.) Nina emailed the website, asking
it to remove the pictures, and giving notice that the photos were posted
without her consent and that a police report had been filed, but she received
no response. (5RT 404.) The website led her to ChangeMyReputation.com,
which promised to remove the photos for $500, but Nina decided not to
pay. (5RT 404.) As a result of the posting, Nina received lewd messages
from strangers. She felt violated and threatened. (5RT 405-406.) Her
children and other family members learned of the pictures, causing further
embarrassment. (5RT 407.)
Count 9: Identity theft of Kaye
In August 2013, Kaye received roughly 50 messages indicating that
her photos were on UGotPosted. (6RT 679.) When she checked the
website, she discovered that in addition to her photos, the site also had her
Twitter account, her Facebook link, her full name, and her town. (6RT 680,
ex. 61.) She had sent the photos to a boy who took her to the prom, making
it clear that they were intended to be kept confidential. (6RT 687.) He later
threatened to put the photos up on the Internet when Kaye refused to speak
with him. (6RT 690.)

11

 In the website’s comments section, posters discussed her bodily
attributes. (6RT 680.) Kaye was frightened because her location was
posted. She felt that she could not use social media. (6RT 681.) She notified
the website that she was underage at the time the photos were taken, and
demanded that they be taken down. (6RT 684.) A detective also contacted
the website, but the images were never removed. (6RT 686.)
Count 10: Identity theft of Nicole C.
In May 2013, Nicole C.’s Facebook page was bombarded with
hundreds of lewd messages from strangers. (4RT 290.) She discovered that
naked photos, which she had taken of herself for her fiancée, had been
posted without her consent along with her Facebook address, home address
and telephone number. (4RT 291, 293; ex. 60.) She went to the police, and
the photos were temporarily taken down, but then were later reposted. (4RT
293.) As a result of the postings, she tried to take her life and eventually
wound up in a psychiatric hospital. (4RT 294.)
Count 11: Identity theft of Sarah
In May 2013, Sarah received roughly 30 Facebook messages
indicating that naked photos of her had been posted online. (5RT 537-538.)
She went to the UGotPosted website and saw naked photos of herself,
along with her Facebook link, her full name and her city. (5RT 538-539; ex.
64.) She had taken the photos of herself with a webcam, but she had not
sent them to anyone and believed that her computer had been hacked. (5RT
544, 546.)8 Commentators on the site discussed her weight, suggesting she
ate out of a trough or stating, “suey, pig, pig, pig.” (5RT 539.) Sarah
emailed the site administrator and asked that her photos be removed.

8

Sarah had previously told an investigator with the Attorney
General’s Office that she had sent the photos to her ex-boyfriend plus ten
others. 8RT 1046.)

12

 Although the photos were removed, a different set of photos was later reposted. (5RT 538, 543, 548.) The results of the posting were “devastating,”
damaging Sarah’s self-esteem and making her paranoid of others. (5RT
539.) Because she lived in a small town, she lived in fear that someone
would find out about the site. (5RT 540, 544, 550.) She blocked her privacy
settings in the hope that her family would not find out. (5RT 548-549.)
However, she felt that she was not able to apply for any job because any
Google search of her name would reveal the photos. (5RT 545.)
Count 12: Identity theft of Brittany B.
One morning in July 2013, Brittany awoke to nearly 300 Facebook
messages. (4RT 349.) She discovered naked photos of herself, along with
her age and a link to her Facebook profile, posted without her consent on
the UGotPosted site. (4RT 350, 352; ex. 5.) She had sent the naked pictures
to a former boyfriend, who was deployed in Iraq at the time. (4RT 351.)
Some of the comments she received were racist, others discussed the fact
that she had subsequently become pregnant and speculated as to the
circumstances. (4RT 354.) Brittany sent five or six emails to the website
requesting that the photos be removed, but she received no response. (4RT
354, 356.) Brittany was humiliated, and was forced to explain the
circumstances behind the photos to both her husband and her husband’s
family. (4RT 349, 356.)
Count 13: Identity theft of Megan B.
In January 2013, Megan took some selfies of herself while naked, and
sent them to her boyfriend and a long-time friend. (4RT 318-319.)
Sometime after that, she began receiving vulgar messages on Facebook
indicating that she had been posted. (4RT 319; ex. 48.) She discovered that
the naked photos of herself had been posted on the UGotPosted site without
her consent. (4RT 319.) Comments on the site referred to her as a “nasty,”
“tattooed,” “mixed breed.” (4RT 324.) Scared, angry and frightened,

13

 Megan went on the UGotPosted website and asked that the pictures be
taken down. (4RT 320, 322.) She communicated with someone who
referred to himself as “James Smith,” not realizing it was really appellant.
(4RT 324-325.) He told her that to have the pictures removed, she would
have to provide two forms of identification, and take a picture while
holding a sign. (4RT 325; ex. 49.) Megan did as required, but the photos
were still not removed. (4RT 325.)
Count 14: Identity theft of Christina
In 2013, someone with a fake profile sent Christina a message on her
Facebook page, threatening to expose nude pictures of her if she did not
send him money. (6RT 644.) At some later point, she received a message
with a link to the UGotPosted website. When she clicked on the link, she
saw graphic photos of herself. (6RT 645-646; ex. 52.) She had previously
taken the photos of herself, and they were on her phone when it was stolen.
(6RT 648.) Her name, hometown, and Facebook profile were also listed on
the website. (6RT 646.) She believed it was the thief who posted both her
photos and her information. (6RT 650.) She emailed UGotPosted and
informed the site that she was only 17 at the time the photos were taken.
(6RT 647.) Christina also contacted the police, but she never heard of any
follow-up. (6RT 651.)
The exposure “ruined [her] life.” (6RT 646.) Christina’s family no
longer accepted her, and she lost friends. (6RT 646, 648.) Believing
Christina had brought shame on the family, her mother even tried to beat
her up. (6RT 647.) She was kicked out of her family’s house and became
homeless. With her reputation in disgrace, it was hard to find a job.
Although she finally found a job a few weeks before she testified, she was
not sure how long it would last. (6RT 647.) Because she lived in a small
town, it was hard for her to even walk around in public. (6RT 648.)

14

 Counts 15 and 16: Identity theft and extortion of Jennifer
In late 2012 or early 2013, Jennifer received a dozen or more
Facebook messages indicating that photos of her were posted on the
UGotPosted site, or otherwise discussing her body parts. (5RT 594.) Afraid
that she was being stalked, she went to the website. There, she discovered
both naked and clothed pictures of herself, as well as her full name,
Facebook link, email address, location and employer. (5RT 595-596; ex.
36.) She had sent the naked pictures to her then-boyfriend (5RT 600); the
clothed pictures came from her Facebook page (5RT 596). She did not give
anyone permission to use any of the photos. (5RT 596, 601.) Commentators
made racial slurs, picked apart her body, and discussed how disgusting she
was. (5RT 596.) It made her feel “horrible,” “dirty,” and “terrified.” (5RT
596.) Jennifer emailed the website and asked that her photos be taken
down. (5RT 598.) She was directed to ChangeMyReputation.com, which in
turn required her to pay $249.99 to have the photos removed. (5RT 600.)
That website informed her that if she did not pay, the photos would remain
up. (5RT 602.) Jennifer made the payment as required, and the photos were
removed. (5RT 601.) She decided to pay the money because the postings
were affecting her work and social life, and she did not want anyone else to
see the photos. (5RT 603.)
Counts 17 and 18: Identity theft and extortion of Alaina
In May 2013, Alaina received a call at work from a stranger who
notified her that she had been posted. Checking the UGotPosted site, she
discovered naked pictures of herself that she had originally posted on her
own personal blog. (4RT 299; ex. 54.) Her blog did not use her actual name
or identifying information. (4RT 205.) However, the UGotPosted website
included not only her full name, age, and city, but also the school from
which she had graduated. (4RT 303.) She notified the UGotPosted website
that her photos were copyright-protected under the DMCA, but she

15

 received no response. Alaina also falsely told the website that she was
under 18 when the photos were taken, but again she received no response.
(4RT 298.) Finally, she decided to pay a $350 “blackmail fee” to
“ChangeMyReputation.com” because it was linked to the website and it
represented it would take the photos down with payment. (4RT 298, 302.)
As a result of the posting, Alaina suffered psychological trauma. She was
afraid she was being stalked and so dyed her hair to change her appearance.
(4RT 302.)
Count 19: Identity theft of Barbara
In June 2013, Barbara received a text message from a stranger
notifying her that her pictures were displayed on UGotPosted. (5RT 552.)
Barbara went to the site and discovered naked photographs that she had
sent to her husband; she did not know how they became posted. (5RT 553554; ex. 33.) In the comments on the website, someone who was
impersonating her was flirting with other commentators. (5RT 557.)
Another commentator provided her home address, stating, “for a good time,
you can find her here.” (5RT 558.) Barbara posted her own comment,
pleading for someone to tell her how to remove the pictures. (5RT 557.)
The website administrator allowed the comment that gave her home address
to remain, but removed her plea. (5RT 559.) Barbara contacted
ChangeMyReputation.com, and engaged in an online chat with someone
who purported to be a woman and who offered to remove her pictures for
$5,000. (5RT 560-562.)9 After contacting the police, Barbara filed a
DMCA notice. (5RT 563-564.) The pictures were removed, but her
personal information remained. (5RT 563.) Afraid that someone would
9

The parties stipulated that UGotPosted.com did not interact
through either a live chat or phone calls; consequently, if a website asked
for $5,000, whether by means of a phone call or live chat, it was not
UGotPosted. (8RT 1046.)

16

 stalk her, Barbara was unable to sleep at night and so installed a home
security system. (5RT 560, 563.) She felt “raped” and afraid. (5RT 556557.)
Counts 20 and 21: Identity theft and extortion of Brian
In March or April 2013, Brian began receiving unusual friend requests
from strangers. (6RT 706.) When someone directed him to the UGotPosted
website, he discovered his full name and town, along with links to Tumblr
and his Facebook page, and both naked and clothed photos of himself had
been posted without his consent. (6RT 708, 712; ex. 58.) He had taken the
naked photos of himself and sent them to several people in confidence.
(6RT 716, 718.) The clothed photos had been copied from his Facebook
page. (6RT 717.)
Brian was embarrassed and concerned that his parents and employer
would see the site. (6RT 708-709.) He contacted the website and
unsuccessfully sought to have the images removed by filing a DMCA
complaint. (6RT 712.) At some point, he contacted
ChangeMyReputation.com and was told that if he paid $250, the photos
would be removed. (6RT 714.) Although he had reservations whether the
pictures would be taken down because the web administrators for
UGotPosted and ChangeMyReputation were the same, Brian paid the
required sum, so that no one else would see the photos. (6RT 716-717, 721722.) The photos were later removed. (6RT 716.)
Count 22: Identity theft of Kristina B.
Kristina was notified by a friend that she had been posted on
UGotPosted.com. (4RT 339; ex. 74.) She discovered one picture of herself
clothed, which had been taken from her Facebook page, and other naked
photos, which she had originally sent to her boyfriend. The naked photos
were intended to be private and were posted without her consent. (4RT
344.) Kristina received disgusting and vulgar messages on her Facebook

17

 page. (4RT 341-342.) She felt embarrassed and threatened. (4RT 340-341.)
She sent an email and a letter to the website, demanding that it take down
the photos, but she received no reply. (4RT 344, 346.) As a result of the
postings, Kristina still struggles with being able to trust anyone. (4RT 345.)
Count 23: Identity theft of Jocelyn
Jocelyn learned that pictures of her had been posted on the
UGotPosted website. She discovered clothed pictures of herself, as well as
pictures of body parts that purported to be hers, but were not. (4RT 309; ex.
67.) The photos were posted without her consent. (4RT 310.) The comment
section listed her personal information, including the city she lived in and
her cell phone number, and also included nasty and vulgar comments. (4RT
310, 316.) Some of the posters said they knew her. (4RT 311.) She received
unwanted contact from strangers, and some of her co-workers also saw the
website. (4RT 310, 312.) Angry, sad, threatened, and upset, she felt as if
people were looking at her and judging her, even if they were not. (4RT
311-312.)
Count 24: Identity theft of Ashley
In July 2013, Ashley learned through Facebook that private photos
she had sent to her boyfriend had been posted without her consent on
UGotPosted.com. (4RT 330, 332; ex. 68.) Over a hundred people contacted
her, harassing her sexually. (4RT 331.) Ashley contacted the website, but
she never received a response. (4RT 332.) Ashley lived in a small town,
and eventually the entire town came to learn of the postings. (4RT 331.) As
a result, she suffered psychological, financial, and emotional trauma, and
found it necessary to relocate, but even this did not help. (4RT 330-331.)
Counts 26 and 27: Identity theft and extortion of Manuel
In April 2013, Manuel began receiving Facebook messages informing
him that his photos were on UGotPosted. (6RT 692.) Manuel went to the
website and saw the photos, along with his Facebook link, full name, and

18

 hometown. (6RT 698.) He had originally taken the selfies and sent them in
confidence to someone he met on a dating site. (6RT 693, 700; ex. 4.)
When the relationship soured, that person had threatened to post his photos
if Manuel did not send additional nude photos. (6RT 700.) He tried
changing his Facebook URL, but then discovered that the UGotPosted cite
updated the change as well. (6RT 698.) Manuel followed a link on the
website to ChangeMyReputation.com, which instructed him to take a photo
of himself along with his driver’s license to verify his identity, and then pay
$250 to have the photos removed. (6RT 693-695.) Manuel paid, and the
photos were removed. (6RT 693.) However, even after the pictures were
removed, searches on Google Images continued to return results for the
website, although those results were linked to a person named “Ramon.”
(6RT 702.) Eventually, Manuel was successful in having Google remove
the results. (6RT 703.)
The photos were “shocking” and it was upsetting to see them. (6RT
692-693.) Manuel, who is gay, had not yet come out when the photos were
seen by his friends and family. (6RT 693.) He had to delete his Facebook
account. After several months, he tried to go back on Facebook, but people
found him because his private information was still on the Internet. (6RT
699.)
Counts 28 and 29: Identity theft and extortion of Jasmine
In June 2013, Jasmine received notice from a stranger that her photos
had been posted. (5RT 583.) She went to the UGotPosted site and
discovered nude pictures of herself that she had sent to a former boyfriend,
as well as her full name and social media links. (5RT 583, 585; ex. 586.) A
few days later, her employer, Nordstrom’s, informed her that unless she had
the pictures removed, she would be fired. (5RT 583-584.) Jasmine followed
a link on the UGotPosted site and after paying $249, the photos were taken
down. However, the photos popped up on other sites, and Jasmine

19

 convinced her former boyfriend, who had posted the pictures, to pay
another $249 to ChangeMyReputation.com have those images removed as
well. (5RT 585, 591, 592.) The experience left Jasmine feeling frightened,
embarrassed and ashamed. (5RT 586-587.)
ARGUMENT
I.

APPELLANT WAS AN “INFORMATION CONTENT PROVIDER,”
OR ALTERNATIVELY ACTED WITH AN INTENT TO DEFRAUD,
AND THEREFORE HE WAS NOT IMMUNE TO PROSECUTION
FOR IDENTITY THEFT; FURTHER, SUBSTANTIAL EVIDENCE
SUPPORTS HIS CONVICTIONS
Appellant initially maintains his actions were protected under the

CDA. (AOB 21.) He is mistaken. Contrary to appellant’s assertions, he did
much more than simply choose which information to post—editorial
functions that typically would be immune under the CDA. Instead,
appellant designed the website so that posters had to provide the victims’
personal identifying information (PII). Based on the website design,
appellant became responsible as a developer and provider of the content
that was posted, and not merely for his editorial choices, and he thereby lost
any “immunity” under the CDA. Alternatively, regardless of whether
appellant was culpable for the postings themselves, he retained possession
of the victims’ PII for the purpose of defrauding them into utilizing his
separate website, ChangeMyReputation.com, and paying money to have
their images removed.
Appellant also claims there was insufficient evidence to demonstrate
that he willfully and unlawfully possessed the victims’ PII under section
530.5. (AOB 38-44.) Here, again, appellant is incorrect. Appellant required
posters to include the victims’ PII and therefore he willfully received that
information when the posters did what was required of them. Moreover,
appellant used that information for the purpose of committing three

20

 separate unlawful acts: violation of section 653m, intrusion into private
affairs, and public disclosure of private facts.
A.

Applicable Law

As with any claim of insufficient evidence, a reviewing court’s role
on appeal is a limited one: “In addressing a challenge to the sufficiency of
the evidence supporting a conviction, the reviewing court must examine the
whole record in the light most favorable to the judgment to determine
whether it discloses substantial 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. Kraft (2000) 23 Cal.4th 978,
1053-1054; Jackson v. Virginia (1979) 443 U.S. 307, 319.) An appellate
court must presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence. (People v. Kraft,
supra, 23 Cal.4th at p. 1053.) The same standard applies when the
conviction rests primarily on circumstantial evidence. (People v. Snow
(2003) 30 Cal.4th 43, 66.) “‘Although it is the duty of the jury to acquit a
defendant if it finds the circumstantial evidence susceptible of two
reasonable interpretations, one of which suggests guilt and the other
innocence, it is the jury, not the appellate court that must be convinced of
the defendant’s guilt beyond a reasonable doubt.’” (Ibid.) “‘“If the
circumstances reasonably justify the trier of fact’s findings, the opinion of
the reviewing court that the circumstances might also reasonably be
reconciled with a contrary finding does not warrant a reversal of the
judgment.”’” (People v. Kraft, supra, 23 Cal.4th at p. 1054.)
Section 530.5, subdivision (a), provides in relevant part that “Every
person who willfully obtains personal identifying information . . . of
another person, and uses that information for any unlawful purpose” is
guilty of a public offense. “Personal identifying information” is defined in
section 530.55, subdivision (b), which sets forth a lengthy list of the types

21

 of information included within the term, such as “any name, address,
telephone number” as well as “date of birth, unique biometric data
including fingerprint, facial scan identifiers, voiceprint, retina or iris image
or other unique physical representation” and “unique electronic data
including information identification number assigned to the person, address
or routing code, telecommunication identifying information or access
device.”
Section 530.5 includes a limited exception for certain persons or
entities involved with the Internet. Namely, an “interactive computer
service” or an “access software provider” as defined by the CDA are not
liable unless that service or provider “acquires, transfers, sells, conveys, or
retains possession of personal information with the intent to defraud.” (§
530.5, subd. (f).)
The CDA provides tort immunity for neutral intermediaries who allow
third parties to post content on their websites. (See generally Barrett v.
Rosenthal (2006) 40 Cal.4th 33, 39-40, 62.)10 It provides: “No provider or
user of an interactive computer service

11

shall be treated as the publisher

or speaker of any information provided by another information content
10

At least one federal circuit court has questioned whether the CDA
should be characterized as a defense rather than as an imunity from
liability. (Doe v. GTE Corp. (7th Cir. 2003) 347 F.3d 655, 660; Chicago
Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc. (7th
Cir. 2008) 519 F.3d 666, 670.) Respondent notes this is an open issue that
need not be resolved in the present case. Respondent’s references to
“immunity” should not be interpreted as suggesting that the CDA is
anything more than a defense or prohibition from liability.
11
The CDA defines “interactive computer service” as: “any
information service, system, or access software provider that provides or
enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet and such
systems operated or services offered by libraries or educational
institutions.” (47 U.S.C. § 230(f)(2).)

22

 provider

12

.” (47 U.S.C. § 230(c)(1).) This grant of immunity applies

only if the interactive computer service provider is not also an “information
content provider,” which is defined as someone who is “responsible, in
whole or in part, for the creation or development of” the offending content.
(Id. § 230(f)(3); Fair Housing Council of San Fernando Valley v.
Roommates.Com (“Roommate”) (9th Cir. 2008) 521 F.3d 1157, 1162.) “[A]
service provider is ‘responsible’ for the development of offensive content
only if it in some way specifically encourages development of what is
offensive about the content.” (F.T.C. v. Accusearch Inc. (10th Cir. 2009)
570 F.3d 1187, 1199.) A website operator can be both a service provider
and a content provider. (Roommate, supra, 521 F.3d at p. 1162.) Namely, if
the operator passively displays content created by third parties, then it is
only a service provider with respect to that content. “But as to content that
it creates itself, or is ‘responsible, in whole or in part’ for creating or
developing, the website is also a content provider.” (Ibid.)
“The prototypical service qualifying for this statutory immunity is an
online messaging board (or bulletin board) on which Internet subscribers
post comments and respond to comments posted by others.” (F.T.C. v.
Accusearch, Inc., supra, 570 F.3d at p. 1195.) The Fourth Circuit has
determined that Congress’ intent in enacting the CDA was to prevent
censorship of the Internet:
Congress’ purpose in providing the § 230 immunity was thus
evident. Interactive computer services have millions of users.
[Citation.] The amount of information communicated via
interactive computer services is therefore staggering. The
specter of tort liability in an area of such prolific speech would
12

The CDA defines “information content provider” as: “any person
or entity that is responsible, in whole or in part, for the creation or
development of information provided through the Internet or any other
interactive computer service.” (47 U.S.C. § 230(f)(3).)

23

 have an obvious chilling effect. It would be impossible for
service providers to screen each of their millions of postings for
possible problems. Faced with potential liability for each
message republished by their services, interactive computer
service providers might choose to severely restrict the number
and type of messages posted. Congress considered the weight of
the speech interests implicated and chose to immunize service
providers to avoid any such restrictive effect
(Zeran v. America Online, Inc. (4th Cir. 1997) 129 F.3d 327, 331
Nonetheless, in enacting these protections Congress was equally clear
that it intended “to ensure vigorous enforcement of Federal criminal laws to
deter and punish trafficking in obscenity, stalking, and harassment by
means of computer.” (47 U.S.C. § 230(b)(5).) To effectuate this policy, the
CDA specifically provides that nothing in that Act is intended to impair the
enforcement of any federal criminal statute (47 U.S.C. § 230(d)(1)), and
likewise nothing in the Act “shall be construed to prevent any State from
enforcing any State law that is consistent with [that] section.” (47 U.S.C. §
230(d)(3)).
Thus, the CDA does not protect those who intentionally commit
crimes on the Internet. “When Congress passed section 230 it didn’t intend
to prevent the enforcement of all laws online; rather, it sought to encourage
interactive computer services that provide users neutral tools to post
content online to police that content without fear that through their ‘good
samaritan [sic]. . . screening of offensive material,’ 47 U.S.C. § 230(c), they
would become liable for every single message posted by third parties on
their website.” (Roommate, supra, 521 F.3d at p. 1175 [emphasis in
original].) If a website operator’s conduct is “unlawful when [conducted]
face-to-face or by telephone, [it doesn’t] magically become lawful when
[conducted] electronically online.” (Id. at p. 1164.)
Appellant does not fall within the exception under section 530.5,
subdivision (f), both because he was an “information content provider” as

24

 to the relevant content, and, in any event, he retained possession of the
victims’ personal information with the intent to defraud.
B.

Appellant Was an Information Content Provider and
Therefore Fell Outside the Exclusion of Penal Code
Section 530.5, Subdivision (f)

Appellant is not entitled to immunity under the CDA because he went
well beyond the role of a mere editor. He was responsible for the content of
the site by virtue of his design of the site’s required fields, which made
users post the victims’ private information as a condition of use.
Appellant briefly mentions the Ninth Circuit’s decision in Roommate
(AOB 29), but does not otherwise discuss that decision, even though it
featured prominently in the court below. In Roommate, the Ninth Circuit
held that the CDA did not immunize a website when it engaged in unlawful
housing discrimination. (Roommate, supra, 521 F.3d at p. 1175.) There, the
website “Roommates.com” was designed to match people renting out spare
rooms with those looking to rent. (Id. at p. 1161.) As conditions of use, the
website required subscribers to disclose their sex, sexual orientation, and
whether they would bring children to the household, and also required
subscribers to select their preferences with respect to the same three
criteria. (Ibid.) The Fair Housing Councils of San Fernando Valley and San
Diego sued the website for violating federal and state housing
discrimination laws. The Ninth Circuit, sitting en banc, rejected
Roommate’s assertion that it was protected by the CDA, holding: “The
CDA does not grant immunity for inducing third parties to express illegal
preferences. Roommate’s own acts—posting the questionnaire and
requiring answers to it—are entirely its doing and thus section 230 of the
CDA does not apply to them. Roommate is entitled to no immunity.” (Id. at
p. 1165.) As the Ninth Circuit reasoned, “Here, the part of the profile that is
alleged to offend the Fair Housing Act and state housing discrimination

25

 laws—the information about sex, family status and sexual orientation—is
provided by subscribers in response to Roommate’s questions, which they
cannot refuse to answer if they want to use defendant’s services.” (Id. at p.
1166.) More succinctly, “Unlawful questions solicit (a.k.a. ‘develop’)
unlawful answers.” (Ibid.)
In addressing the separate question of whether Roommate was entitled
to immunity for its search engine, which allowed users to search by the
same discriminatory factors, the Ninth Circuit proposed a “material
contribution” test to determine whether a person is responsible “in whole or
in part” (47 U.S.C. § 230(f)(3)) as a developer of the illegal content. (Id. at
p. 1168.) By way of example, the court observed that a dating website that
required users to provide their sex, race, religion and marital status, and
allowed searches based on those responses, would not constitute a material
contribution to any alleged illegality because there is nothing illegal with
discriminating along these lines in the context of dating. (Id. at p. 1169 &
fn. 23.) Applying these principles, the court concluded that Roommate’s
connection to the discriminatory filtering process was “direct and
palpable.” (Id. at p. 1169.) Based on the design of the website, the Ninth
Circuit distinguished cases in which an editor simply decides whether to
exclude material that a third party seeks to post, or a website simply
provides a forum where others choose to post illegal content. (Id. at pp.
1170-1171 [distinguishing Batzel v. Smith (9th Cir. 2003) 333 F.3d 1018,
and Carafano v. Metrosplach.com, Inc. (9th Cir. 2003) 339 F.3d 1119].) In
contrast to these situations, Roommate both elicited the allegedly illegal
content and made “aggressive use of it” in conducting its business. (Id. at p.
1172.)
While holding Roommate liable for the required fields and website
design, the Ninth Circuit reached a different conclusion regarding an open
comments section in which users were able to enter additional remarks

26

 regarding the type of roommate they were seeking. Although some of these
additional comments expressed discriminatory preferences, the mere fact
that Roommate encouraged users to provide “something” was not enough
to render it a developer of content: “. . . Roommate does not tell subscribers
what kind of information they should or must include as ‘Additional
Comments,’ and certainly does not encourage or enhance any
discriminatory content created by users.” (Id. at p. 1174.) Such a “generic
text prompt,” as would commonly occur with a typical search engine,
would be immune from liability where there is “no direct encouragement to
perform illegal searches or to publish illegal content.” (Id. at p. 1175.)
Here, similar to the situation in Roommate, appellant willfully
obtained individuals’ personal identifying information by soliciting it from
submitters, who were required to include the victims’ full name, location
(“city, state, country”), age, and a link to the victims’ Facebook profile
page in order to submit photographs. As in Roommate, appellant became
responsible for the illegal content of the postings because the illegal content
(i.e., the non-consensual use of someone’s personal identifying information,
including their private photos) was a condition of use. Appellant then used
that information to harass and annoy victims because he knew—with
absolute certainty—that by posting the information, the victims would be
contacted by numerous strangers whom the victims would find threatening.
Appellant also used the information for the unlawful purpose of unlawfully
obtaining money from them by demanding payment in exchange for
removing his posts. This conduct does not magically become lawful
because appellant did it online, or because he recruited third parties to help
him inflict harm on a mass scale.
Rather than address Roommate, appellant instead discusses cases
holding that a service provider is not liable for the exercise of a publisher’s
traditional editorial functions, such as deciding whether to publish or edit

27

 content. (AOB 30; see Barnes v. Yahoo! Inc. (9th Cir. 2009) 570 F.3d 1096,
1102; Carafano v. Metrosplash.com, Inc., supra, 339 F.3d 1119; Batzel v.
Smith, supra, 333 F.3d 1018; Zeron v. America Online, Inc., supra,129 F.3d
327.) But this argument is nothing more than a strawman. Appellant is
culpable, and he is not immune under the CDA, because his website design
required the unlawful content, not because he exercised editorial
discretion.13 Appellant’s suggestion that he simply asked for “statistical
information” with which there is nothing “inherently wrong” (AOB 33-34)
is palpably incorrect. First, this case does not involve mere “statistical
information.” In order to submit photographs, a submitter had to include the
victim’s first and last name, location (including city, state, and country),
age, and a link to the victim’s Facebook page. These were all required
fields, as were the photos themselves (5RT 452-454), and they fell squarely
within the definition of PII under section 530.55, subdivision (b). Second,
the information was obtained for an unlawful purpose, as the jury
necessarily found. As Roommate underscored, the present case is not like a
dating website, in which it is permissible to request information regarding a
user’s sex or sexual orientation, because there is nothing illegal with such
information in that context. Here, as discussed further below, appellant
obtained the information for the unlawful purposes of invading the victims’
rights of privacy, committing extortion, and violating section 653m. (Cf.
Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 575 [distinguishing

13

To be sure, appellant’s editorial choices provided useful evidence
of his scheme and intent, but they are not the reason that he fell outside of
the CDA’s immunity. Nor is it sufficient that appellant was on notice of the
unlawful nature of the information posted on his website (Universal
Communication Systems, Inc. v. Lycos, Inc. (1st Cir. 2007) 478 F.3d 413,
420), although here again the nature of that information is relevant to
demonstrating appellant’s purpose and motive.

28

 Roommate, court noted there was no allegation that MySpace’s profile
questions are “discriminatory or otherwise illegal”].)
Unlike the cases on which he relies (AOB 30-33), appellant did not
simply operate an otherwise content-neutral search engine or online bulletin
board, which a third party used to publish disparaging or defamatory
material. In such cases, an operator’s ability to edit or screen postings is
insufficient to render the defendant civilly liable. Here, in contrast,
appellant was responsible for the content that his website required users to
provide, not merely his editing choices.
For similar reasons, appellant’s reliance (AOB 34-35) on Jones v.
Dirty World Entertainment Recordings, LLC (6th Cir. 2014) 755 F.3d 398
(“Dirty World”) is also misplaced. There, defendant Nik Richie operated a
website, TheDirty.com, which relied on anonymous third parties to supply
“dirt” or gossip on any subject. The website staff would review the
submissions and choose which were appropriate for publication, and the
defendant would typically add a short one-line humorous comment. (Id. at
p. 403.) The website ran a series of submissions impugning the sexual
reputation of a professional cheerleader, who sued Richie as operator of the
site for defamation. (Id. at p. 401.) Based on these facts, the Sixth Circuit
held that Richie and the website had immunity under the CDA because he
did not materially contribute to the creation or development of the
offending material and, therefore, was not an information content provider.
(Id. at pp. 415-416.) In reaching this holding, the court distinguished the
Ninth Circuit’s Roommate decision on the grounds, inter alia, that the
website there required subscribers to disclose illegal or actionable content
about “protected characteristics” as a condition of use. (Id. at pp. 411, 416.)
The Sixth Circuit further pointed out that the name of the website,
“TheDirty.com,” did not suggest that only illegal or actionable content
would be published. (Id. at p. 416.) Finally, although Richie acted as an

29

 information content provider when he added his absurd, one-line
comments, those comments did not materially contribute to the defamatory
content of the challenged postings. (Ibid.)
The present case is like Roommate and unlike Dirty World.
Appellant’s extortion scheme would not have worked without the victims’
personal identifying information. In order not to be just another online
pornography site with photos of anonymous people, appellant had to link
the photos to specific individuals who could then be contacted. Hence,
unlike Dirty World, appellant’s website required users to post illegal or
actionable content as a condition of use. Appellant’s own acts in designing
the site to require submitters to provide not only graphic photographs, but
also other personal identifying information, and then posting that
information with intent to cause harm to victims and extort them, place him
outside the scope of CDA’s immunity provisions. As the name of the
website “UGotPosted.com” itself revealed, it was intended to notify victims
that someone else had posted their private information online. (Cf. Dirty
World, supra, 755 F.3d at p. 416 [“Nor does the name of the website,
www.TheDirty.com, suggest that only illegal or actionable content will be
published”].) Appellant knew the information was furnished without the
victims’ consent because the very purpose of his website was to shame
victims into paying him money. As in Roommate, appellant’s creation and
design of the website registration process made him an information content
provider as to the answers he solicited. He knowingly sought to transform
virtually unknown information—the victims’ graphic photographs and
personal identifying information—into a commodity which he could use to
extort victims. (Cf. F.T.C. v. Accusearch Inc., supra, 570 F.3d at p. 1199
[In denying CDA immunity, court held, “Accusearch solicited requests for
such confidential information and then paid researchers to obtain it. It
knowingly sought to transform virtually unknown information into a

30

 publicly available commodity. And as the district court found and the
record shows, Accusearch knew that its researchers were obtaining the
information through fraud or other illegality”]
In the court below, appellant attempted to distinguish Roommate on
the basis that the website there was designed to require users to select from
pre-populated answers, whereas appellant’s website required posters to
input original information. (7RT 944.) Appellant apparently no longer
pursues that argument here, and properly so. Whether a poster uses a pull
down menu or provides his own data, the results are the same in a case such
as this where the poster was required to provide illegal content consisting of
the victims’ PII and private photos. Appellant cites Carafano v.
Metrosplash.com, Inc., supra, 339 F.3d 1119, where the Ninth Circuit held
that a computer matchmaking service was immune under the CDA when an
unknown person created a false dating profile for a well-known actress.
Although some of the content in the profile was based on responses to the
site’s questionnaire, which included multiple choice answers, the Ninth
Circuit concluded that “the selection of the content was left exclusively to
the user,” and therefore the site could not be considered an information
content provider. (Id. at p. 1124.) But the dating website in Carafano did
not require users to provide illegal content; indeed, most of the customers
presumably provided legitimate information in the hope of meeting a
match. In Roommate, the Ninth Circuit specifically distinguished Carafano
on this basis:
By contrast, Roommate both elicits the allegedly illegal content
and makes aggressive use of it in conducting its business.
Roommate does not merely provide a framework that could be
utilized for proper or improper purposes; rather, Roommate’s
work in developing the discriminatory questions, discriminatory
answers and discriminatory search mechanism is directly related
to the alleged illegality of the site

31

 (Roommate, 521 F.3d at p. 1172.) The same is equally true of appellant’s
site.
The only purpose of appellant’s website was to harass, annoy, extort,
and otherwise harm victims. Appellant did not maintain a neutral bulletin
board that merely refrained from removing offensive content. Rather, he
only allowed content that harmed victims by disclosing their personal
identifying information along with their private graphic photographs.
Consequently, because he was responsible for developing the content of the
site, he was an information content provider and he was not immune from
prosecution under the CDA.
C.

Appellant Retained Possession of Personal Identifying
Information with the Intent to Defraud the Victims

Alternatively, even if appellant were not an information content
provider, he did not fall within the exception of section 530.5, subdivision
(f), because he retained the victims’ personal identifying information with
the intent to defraud. Specifically, appellant operated the
ChangeMyReputation.com website with the intent to deceive victims into
believing that it was separate from the UGotPosted.com site on which their
pictures were posted.
“ ‘ “Intent to defraud is an intent to commit a fraud.” [Citation.]
‘ “Fraud” ’ and ‘dishonesty’ are closely synonymous. Fraud is defined as ‘a
dishonest stratagem.’ [Citation .] It ‘may consist in the misrepresentation or
the concealment of material facts’ [citation], or a statement of fact made
with ‘conscious[ness] of [its] falsity.’ [Citation.]” [Citation.]’ ” (People v.
Booth (1996) 48 Cal.App.4th 1247, 1253.)
Here, the evidence amply demonstrated appellant’s intent to defraud.
When victims asked to have the offending photos removed, they were
either referred to the website “ChangeMyReputation.com,” or they
followed the link to that site. (E.g., 5RT 600.) This extra step was wholly

32

 unnecessary. Appellant could have removed the photos by demanding the
money directly from the victims as part of the UGotPosted website. But
appellant presumably realized that the victims would be less inclined to pay
money to the very person responsible for posting their pictures. By creating
a separate website, appellant hoped to deceive the victims into believing
that they were receiving the legitimate services of a neutral third party who
would restore their reputation, and that they were not simply paying
blackmail to an extortionist who was the source of their misery.
Appellant maintains that he made no attempt to hide the fact that the
sites were related, and points out that he included a link to the
ChangeMyReputation.com site on the UGotPosted webpage, and also that
the connection between the sites was obvious to some of the victims. (AOB
27.) But intent to defraud does not require actual reliance by the person
intended to be defrauded as in the case of a completed fraud. (People v.
Reed (1961) 190 Cal.App.2d 344, 353.) Victims repeatedly testified that
they received no response when they contacted the UGotPosted website
directly (e.g., 4RT 272, 276, 354, 356; 5RT 404); appellant would,
however, respond to inquires sent to ChangeMyReputation.com. (e.g., 5RT
599-600; 6RT 633-636). A reasonable jury could well conclude that
appellant went to the effort to distinguish these two websites in order to
portray the fees charged on ChangeMyReputation.com as a legitimate
reputation cleansing service. Although appellant may have found it useful
to link that website so that victims would be able to find it, it does not mean
he did not intend to defraud them into believing the site belonged to a
separate business. In the same way that appellant represented himself as
“James Smith” to one victim (4RT 324-325), he also endeavored to conceal
the true identities of his businesses. Whether his intent was successful is a
wholly separate matter; section 530.5, subdivision (f), does not require that
anyone actually be defrauded.

33

 D.

There Was No First Amendment Violation

Although appellant at times references the First Amendment (e.g.,
AOB 38), he cites neither authority nor reason to suggest a constitutional
violation in the present case. Accordingly, he has not properly presented
any such issue for appeal. (See, e.g., People v. Gionis (1995) 9 Cal.4th
1196, 1214, fn. 11 [matters perfunctorily asserted without argument or
authorities in support not properly raised on appeal].)
In any event, there was no violation of the First Amendment. As the
United States Supreme Court has long observed, “it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct
illegal merely because the conduct was in part initiated, evidenced, or
carried out by means of language, either spoken, written, or printed.”
(Giboney v. Empire Storage & Ice Co. (1949) 336 U.S. 490, 502.)
“Extortion is not a constitutionally protected form of speech.” (Flatley v.
Mauro (2006) 39 Cal.4th 299, 328; see also R.A.V. v. City of St. Paul
(1992) 505 U.S. 377, 420 (conc. opn. of Stevens, J.) [“Although the First
Amendment broadly protects ‘speech,’ it does not protect the right to ...
‘extort’ ”]; United States v. Quinn (5th Cir. 1975) 514 F.2d 1250, 1268 [“It
may categorically be stated that extortionate speech has no more
constitutional protection than that uttered by a robber while ordering his
victim to hand over the money, which is no protection at all”].) To the
extent that appellant has preserved a First Amendment challenge, he has not
shown a violation of the Constitution.
E.

Appellant Willfully Obtained Personal Identifying
Information

Appellant maintains there was insufficient evidence that he willfully
obtained the victims’ personal identifying information. (AOB 38-39.) His
claim is meritless. Section 530.5, subdivision (a), requires, among other
things, that the defendant “willfully” obtained someone else’s personal

34

 identifying information. (2CT 381; CALCRIM No. 2040.) “The word
‘willfully,’ when applied to the intent with which an act is done or omitted,
implies simply a purpose or willingness to commit the act, or make the
omission referred to. It does not require any intent to violate law, or to
injure another, or to acquire any advantage.” (§ 7, subd. (1).) Here,
appellant specifically solicited personal identifying information on his
website; he therefore willfully received it when third parties answered his
call and submitted the information to be posted. Appellant’s point that he
received the information from third parties and not the owner of the
information (AOB 39-40) is immaterial. There is no requirement under
section 530.5 that a defendant receive the information directly from the
owner, rather than from an intermediary. Nor would any such requirement
make any sense; it would simply encourage criminals such as appellant to
launder personal identifying information through shills and shell entities in
order to avoid liability.
F.

Appellant Used the Personal Identifying Information
for an Unlawful Purpose

Appellant also maintains there was insufficient evidence that he used
the PII for an unlawful purpose. (AOB 41-44.) Contrary to his argument,
there was ample evidence that appellant committed three separate unlawful
acts: violation of section 653m, intrusion into private affairs, and public
disclosure of private facts. Even if there were insufficient evidence to
support one of these three theories, the convictions may stand based on the
other two.
1.

Section 653m

An unlawful purpose, under section 530.5, subdivision (a), includes
facilitating the crime of contact by electronic communication device with
intent to annoy or harass under section 653m, subdivision (a). (In re
Rolando S. (2011) 197 Cal.App.4th 936, 947 [holding that harassing and

35

 annoying under section 653m, subd. (a), constitutes an unlawful purpose].)
Section 653m, subdivision (a), provides:
Every person who, with intent to annoy, telephones or makes
contact by means of an electronic communication device with
another and addresses to or about the other person any obscene
language or addresses to the other person any threat to inflict
injury to the person or property of the person addressed or any
member of his or her family, is guilty of a misdemeanor.
Nothing in this subdivision shall apply to telephone calls or
electronic contacts made in good faith.
Appellant contends that this provision does not apply to him because
there was no evidence that he personally made contact with any of the
victims. (AOB 42.) But the language of the 653m is very precise: it does
not say that the defendant must personally contact the victim. That
language provides that the defendant either “telephones or makes contact
by means of an electronic communication device with another.” (Italics
added.) The verb “telephones” arguably requires action by the defendant
himself. But “makes contact” is deliberately more vague. It is possible to
make contact without directly contacting the victim, for instance by use of a
third party. Had the Legislature intended to require that the defendant
personally and directly “contact” the victim, it would not have inserted the
word “makes” and would simply have used the word “contacts.” Here,
appellant made contact by relying on the posters and other persons viewing
the site to notify the victims. Notably, all the victims in the charged counts
were made aware of the postings, as appellant knew they would be.
Appellant required the posters to include the victims’ names, ages,
addresses, and social media information so that they would be immediately
contacted and harassed. The postings actually included the links, i.e., the
victim’s “unique electronic data,” that would take a viewer of the website
directly to the victim’s social media address so that they could easily harass
the victim. There is no question the victims were indeed harassed. If not,

36

 the scheme would not have worked. The unsolicited contacts terrified the
victims. They received hundreds of unwanted disparaging and vulgar
contacts, some even threatening rape. Thus, appellant “ma[d]e[] contact”
with the victims. It is irrelevant he did not personally contact them; indeed,
the use of third parties increased the harassment of and threats to the
victims.
Moreover, the evidence suggested that appellant did personally
contact many of the victims. When victims inevitably reached out to
ChangeMyReputation.com, appellant would typically return the contact and
inform them how much they would have to pay. (E.g., 4RT 283; 5RT 404,
600, 602; 6RT 633-636, 714.) Other times appellant would respond that the
victims needed to provide additional pictures or identification. (E.g., 4RT
325; 6RT 693-695.) That these contacts may have been in response to
initial inquiries by the victims is immaterial; under the language of the
statute, appellant still “ma[d]e[ ] contact.”
Finally, as discussed in greater detail below in the context of the
extortion counts (see Argument II, infra), the intent behind these contacts,
and indeed behind the website itself, was to convey the threat that unless
the victims paid money, their PII and photos would remain posted.
Accordingly, there was substantial evidence of a threat to inflict injury to
the person or property.
2.

Intrusion into private affairs

An unlawful purpose may also be based on the commission of an
intentional tort. (In re Rolando S., supra, 197 Cal.App.4th at p. 946.)
Appellant maintains there was insufficient evidence he committed the tort
of intrusion into private affairs, both because the photos were submitted by
third parties and because the victims lacked reasonable expectations of
privacy. (AOB 42-44.) Both assertions lack merit.

37

 The common law tort of intrusion into private affairs requires an
intentional intrusion into the private affairs of another in a manner that
would be highly offensive to a reasonable person. (5 Witkin Summary of
California Law, Torts, § 658 p. 963; 2CT 387 [CACI 1800].) The victim
must have “an objectively reasonable expectation of seclusion or solitude in
the place, conversation or data source.” (Shulman v. Group W Productions,
Inc. (1998) 18 Cal.4th 200, 232.)
Without elaboration, appellant suggests that he did not commit the tort
because he did not know any of the victims and instead third parties sought
out his website in order to post the photos “on their own free will.” He
maintains that he could not even tell “from the submissions” whether the
posters were submitting photos of themselves, or someone else. (AOB 43.)
But the mere fact that appellant relied on other persons to provide the
photos and PII does not somehow absolve him of responsibility. He still
publicly intruded into the private affairs of another even if he worked in
tandem with others and even if the person who submitted the photos was
authorized to see or possess them at one time. (Shulman v. Group W
Productions, Inc., supra, 18 Cal.4th at p. 232 [“To prove actionable
intrusion, the plaintiff must show the defendant penetrated some zone of
physical or sensory privacy surrounding, or obtained unwanted access to
data about, the plaintiff”] (italics added).)
Further, his assertion that he did not know whether the posters were
the persons depicted in the photos is demonstrably incorrect. The site was
designed to require both the email of the submitter and the full name of the
person posted. (5RT 452-453.) On over 2,300 occasions, appellant used the
submitted links to Facebook to compare those photos to the photos of the
people posted in order to verify their identities. (5RT 493-494.) Appellant
acknowledged to Special Agent Nichol that the site was generally used by
people trying to ridicule others, but he also recognized knowing that some

38

 posters submitted pictures of themselves because they were exhibitionists.
(2CT 302.) Clearly, appellant made it his business to know exactly who it
was who “got posted.”
Next, appellant maintains that the victims did not have a reasonable
expectation of privacy in the photos because “most” of the victims
knowingly allowed the photos to be taken, and they shared them with
others. (AOB 43.) Of course, not all of the victims willingly took the
photos. Some of the victims were drugged or had the photos taken without
their knowledge; others willingly took the photos of themselves, but had the
photos stolen; and others had been photo-shopped. (See, e.g., 4RT 277-281,
309; 5RT 544, 546; 6RT 648, 771.) More importantly, even as to those
victims who knowingly and willingly took “selfies,” the mere act of sharing
those photos with others did not extinguish all reasonable expectations of
privacy. Namely, a victim need not have an expectation of complete
privacy in order to state a cause of action for intrusion into private affairs.
(Sanders v. American Broadcasting Cos. (1999) 20 Cal.4th 907, 915
(Sanders).) In Sanders, for instance, an undercover television reporter
obtained employment as a “telepsychic” and covertly videotaped
conversations among co-workers. Although the co-workers recognized that
their conversations might be overheard by other employees in their
cubicles, they did not anticipate that their discussions would be broadcast
on television for the world to hear. The court held that, “where the other
elements of the intrusion tort are proven, the cause of action is not defeated
as a matter of law simply because the events or conversations upon which
the defendant allegedly intruded were not completely private from all other
eyes and ears.” (Id. at p. 911.) “Privacy for purposes of the intrusion tort
must be evaluated with respect to the identity of the alleged intruder and the
nature of the intrusion.” (Id. at p. 918; see also p. 920 [“the reasonableness
of a person’s expectation of visual and aural privacy depends not only on

39

 who might have been able to observe the subject interaction, but on the
identity of the claimed intruder and the means of intrusion”].)
Consequently, a victim may have a legitimate expectation in limited
privacy; the court eschewed the notion that an expectation of privacy “is
nonexistent if not complete.” (Id. at p. 919; cf. Dietemann v. Time, Inc. (9th
Cir. 1971) 449 F.2d 245, 249 [“One who invites another to his home or
office takes a risk that the visitor may not be what he seems, and that the
visitor may repeat all he hears and observes when he leaves. But he does
not and should not be required to take the risk that what is heard and seen
will be transmitted by photograph or recording, or in our modern world, in
full living color and hi-fi to the public at large or to any segment of it that
the visitor may select”].)
As Sanders instructs, simply because a victim exchanges photographs
with a limited number of people, it does not follow that the victim does not
retain a reasonable expectation of privacy that the photographs will not be
distributed to the world at large. Appellant does not discuss Sanders, and
instead cites two federal decisions for the general proposition that
“transmissions over the Internet are not reasonably expected to be private.”
(AOB 43-44, citing United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173
and Four Navy SEALs v. Associated Press (S.D. Cal. 2005) 413 F.Supp.2d
1136, 1143.) Neither of those cases supports the surprising proposition that
a person loses all expectations of privacy in a communication by sending it
over the Internet. Lifshitz arose in the decidedly distinct context of the
expectations of privacy of convicted sex offenders when their computers
are monitored by the government as a condition of probation, and it
discussed transmissions intended for publication or public posting. (United
States v. Lifshitz, supra, 369 F.3d at p. 190.)
In Four Navy SEALs, on the other hand, the plaintiffs were “active
duty military members conducting wartime operations in full uniform who

40

 chose to allow their activities to be photographed and placed on the
Internet.” (Four Navy SEALs v. Associated Press, supra, 413 F.Supp.2d at
p. 1143.) A reporter discovered the photographs on an Internet website and
republished them in connection with a story regarding abuses by the
military during the Iraq war. Under these facts, the court held that the
plaintiffs could not state a claim for invasion of the state constitutional right
to privacy. (Ibid.) This holding makes sense, because the SEALs did not
have an expectation of privacy at the time the photos were taken of them
while dressed in full uniform and conducting military operations, and
therefore they did not have an expectation of privacy when those photos
were later posted on-line. Obviously, those facts are not present here. Here,
the victims may have consented (in some instances) to have their private
photos shared with specific individuals, but like the private conversations in
Sanders, they did not anticipate that those photos would then be published
worldwide. Further, information collection techniques may well be socially
acceptable when conducted by a journalist in pursuit of a socially or
politically important story (such a story about military abuses during war),
but highly offensive “when done for socially unprotected reasons—for
purposes of harassment, blackmail or prurient curiosity for example.”
(Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 237.)
Appellant’s actions fall squarely within the latter examples.
3.

Public disclosure of private facts

Finally, appellant does not mention the separate unlawful tort of
public disclosure of private facts, and thus he apparently does not contest
that there was sufficient evidence that he committed that unlawful tort.
(See AOB 42-43.) This tort requires a public disclosure of a private fact
that is objectionable to a reasonable person and that is not of legitimate
public concern. (Witkin, supra, at p. 974, citing Diaz v. Oakland Tribune
(1983) 139 Cal.App.3d 118, 126; 2CT 388 [CACI 1801].) Here, any

41

 reasonable person would object to the private facts disclosed on the
website. Moreover, these facts were not the subject of legitimate public
concern. (See generally Melvin v. Reid (1931) 112 Cal.App. 285 [cause of
action stated where the defendant made a film that he advertised as the true
story of the named plaintiff, and the plaintiff sued on the grounds that she
had given up her former life and that the film had subjected her to
ridicule]
4.

Any error was harmless

Even if there were insufficient evidence to support any one of the
three separate theories of unlawful conduct, any error was harmless. First,
as to renumbered counts 2, 4-6, 8-15, 19, 23, and 26 the jury returned
special findings that appellant committed public disclosure of private facts.
As noted above, appellant does not contest that theory. Second, even as to
the counts in which the jury did not unanimously agree as to at least one
theory (i.e., counts 7, 17, 20, 22, 24, and 28), affirmance is required
because the “jurors’ ‘own intelligence and expertise’” would have saved
them from relying on any factually inadequate theory. (People v. Guiton
(1993) 4 Cal.4th 1116, 1131.
II.

SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S
CONVICTIONS FOR EXTORTION
Appellant asserts there was insufficient evidence to support the

extortion convictions because once the photos and PII were placed on the
Internet for all to see, the cat was out of the bag and the victims no longer
had a secret that could be disclosed. (AOB 51.) Alternatively, he maintains
that he was under no obligation to remove the postings from his site and
contends he therefore cannot be convicted of extortion because he was
simply offering a “service” and engaging in “standard business practice.”
(AOB 45.) This case, however, is not about incidental harms caused by a
free market economy run amok. Appellant is a criminal who intentionally

42

 harmed thousands of people, not a legitimate businessman. While many
people knew the victims’ secrets (only because appellant had exposed them
on his website), many others had not yet seen the photos and it was that
threat of continued exposure that appellant used to extort money from the
victims. Further, because the website contained the victims’ PII, and
because appellant’s website required posters to provide that PII, appellant
was obligated to remove the content and he was not simply providing a
service that he otherwise had a legal right to perform.
Extortion is the “obtaining of property from another, with his consent,
or the obtaining of an official act of a public officer, induced by a wrongful
use of force or fear, or under color of official right.” (§ 518.) As relevant to
the present case,14 the fear used to commit extortion may be based on a
threat to do either of the following:
3. To expose, or to impute to him or them a deformity,
disgrace, or crime; or,
4. To expose any secret affecting him or them.
(§ 519)15
As courts have frequently summarized, it is not necessary that a secret
be wholly unknown to all people in order for a victim to be extorted:
“The ‘secret’ referred to in the statute is a matter ‘unknown
to the general public, or to some particular part thereof which
might be interested in obtaining knowledge of the secret; the
secret must concern some matter of fact, relating to things past,
present or future; the secret must affect the threatened person in
some way so far unfavorable to the reputation or to some other
14

These were the only two theories on which the jury was instructed.
(2CT 379.)
15
Section 519 has been twice amended since Appellant committed
his offenses in 2013. (See Stats. 2013, ch. 572, §1, and Stats. 2014, Ch. 71,
§123.) Among other changes, the current version has replaced the word
“any” with “a” in subdivision (4).

43

 interest of the threatened person, that threatened exposure
thereof would be likely to induce him through fear to pay out
money or property for the purpose of avoiding the exposure.’
[Citation].”
(Cross v. Cooper (2011) 197 Cal.App.4th 357, 387, italics added.)
Whether conduct constitutes a threat must be determined under the
totality of the surrounding circumstances. “No precise words are necessary
to convey a threat. Conduct takes its legal color and quality more or less
from the circumstances surrounding it.” (People v. Massengale (1968) 261
Cal.App.2d 758, 765.) “Threats may consist of a menace of destruction or
injury to person or property. No precise or particular form of words is
necessary in order to constitute a threat under the circumstances. Threats
can be made by innuendo and the circumstances under which the threat is
uttered and the relations between [complainants and defendants] may be
taken into consideration in making a determination of the question
involved.” (Ibid.; see also People v. Oppenheimer (1962) 209 Cal.App.2d
413, 422 [evidence that defendants entered the victim’s property and
proceeded to cut trees over the victim’s objections in a menacing and
bullying fashion and then demanded payment for the bill “clearly
establishe[d] the crime of extortion”]; People v. Choynski (1892) 95 Cal.
640, 642 [extortionists “seldom possess the hardihood to speak out boldly
and plainly, but deal in mysterious and ambiguous phrases. . . .”].)
“‘Whether a threatened exposure would have this effect on the victim is a
factual question and depends on the nature of the threat and the
susceptibility of the victim. [Citations.]’” (Cross v. Cooper, supra, 197
Cal.App.4th at p. 387.)
A defendant need not use threatening language in order to convey a
threat. “An experienced extortionist does not find it necessary to designate
specifically what he intends to do as a means of terrorizing his prey. The
more vague and general his actions and statements the better they will serve

44

 his purpose in magnifying the fear of his victim and the better also it will
serve to protect him in the event of the failure to accomplish his extortion
and of a prosecution of his attempted crime.” (Massengale, supra, 261
Cal.App.2d at pp. 764-765.) Courts have recognized that “[h]uman
ingenuity being what it is, there might very well be a variety of expressions
which an ingenious mind could create to convey threats without using any
definite phraseology. Yet such language might under certain circumstances
be sufficient to impress the mind of the person threatened as to accomplish
the end in view.” (Oppenheimer, supra, 209 Cal.App.2d at p. 424
[discussing threats in the context of section 523, “Threatening Letters,”
which references section 519, defining “threats”].)
Here, appellant induced fear by threat to expose a secret (§ 519, subd.
(4)) because he posted the victims’ private photographs and accompanying
personal identifying information, and he implicitly threatened to keep
posting those graphic images online until the victims paid. Alternatively,
appellant also exposed or imputed to the victims a disgrace (§ 519, subd.
(3)) in that the pictures are graphic, private, and falsely imply the victims
are wanton, licentious, or lustful. (See, e.g., Leser v. Penido (2009) 879
N.Y.S.2d 107, 108 [naked pictures connected to victim’s name and
photograph on various websites falsely implied that she is sexually lustful
and promiscuous]; Rejent v. Liberation Publications, Inc. (1994) 611
N.Y.S.2d 866, 867 [cause of action for defamation stated where sexually
suggestive photos falsely implied plaintiff was lustful and promiscuous].)
Contrary to appellant’s assertions (AOB 51), under the totality of the
circumstances he clearly conveyed a threat to the victims. In posting the
personal identifying information of the victims, appellant knew—with
absolute certainty—that the victims would be contacted by dozens, if not
hundreds, of strangers trolling the Internet. Any reasonable person would
find this contact, which often included a link to the site “UGotPosted,”

45

 frightening and would naturally and predictably visit the website. Appellant
knew that when the victims inevitably contacted his website, they would
see the name of the site prominently displayed: UGotPosted.com. They
would see graphic and explicit photographs of themselves. What was
worse, these were not simply anonymous pictures. Because the victims’
names, Facebook addresses, and other identifying information were
required fields for every posted entry, the victims would discover that these
most intimate photographs were specifically identified as depicting them.
They also would see the frequently threatening and humiliating comments
posted by persons who had already viewed the pictures. Victims testified
that when they viewed their UGotPosted profile pages, they would find
appellant’s contact email or a link to his website “ChangeMyReputation.”
When contacted, appellant often directed them to ChangeMyReputation or
instructed them to pay. As appellant intended, his message was conveyed.
The threat was obvious, essentially: “pay me or I will continue to humiliate
you and subject you to infinite harm.”
Significantly, appellant was able to convey a threat of harm that was
boundless. Among many other harms, the continuing publication of the
shaming profiles subjected the victims to ongoing threats of community
humiliation and ongoing threats of physical attack by the goblins of the
Internet who now had their most private information and knew how to
reach them. Any person would find appellant’s conduct threatening, and
any person in appellant’s position would know that he was conveying a
threat of substantial harm to the victims.
Appellant asserts that there could not be a threat to expose a secret
because once the photos and identifying information were posted on the
Internet, they were “already in the public domain” and could no longer be
considered secrets. (AOB 47.) He insists that all he did was provide a
means to remove these non-secrets for a fee. (AOB 48.)

46

 Appellant is mistaken for several reasons. First, a secret must be
unknown to the general public or some particular part thereof. (People v.
Lavine (1931) 115 Cal.App. 289, 295 (Lavine).) A secret does not cease to
be a secret simply because it is known by others, or even a large number of
people, as long as there are some people who do not know it. (People v.
Peniston (1966) 242 Cal.App.2d 719, 723 (Peniston).
The decision in Peniston is instructive. There, the Court of Appeal
held that a threat to expose nude photographs of the victim to her husband
and parents constituted sufficient evidence of extortion even though those
same photographs were widely circulated throughout the Pacific Coast.
(Peniston, supra, 242 Cal.App.2d at p. 722.) Specifically rejecting an
additional evidentiary claim that the court improperly excluded motion
pictures of the victim, which were widely exhibited in arcades in the San
Fernando Valley and which would have shown that the pictures were not a
secret to the general public, the Peniston court concluded, “We think the
trial judge correctly focused on the true issues in the case, whether [the
victim’s] husband and parents knew about the pictures and whether the
threat of disclosure to them put [the victim] in fear.” (Id. at p. 723.)
Here, the victims’ private disclosure of the photos to one or two
people did not mean the pictures were no longer a secret, nor did the fact
that many, perhaps even millions of people on the Internet, had already
seen them, prevent the photos from being a secret as to the millions of
others who had not. Even once the pictures were displayed on the Internet,
the continued exposure threatened disclosure to people who had not yet
seen them. The mere fact that many people had seen the pictures already
did not detract from the continuing nature of the threat; many more people
had not seen the pictures, and as long as the photos and PII remained
online, the threats, unwanted contacts and harm to reputation would
continue to flow. (See Peniston, supra, 242 Cal.App.2d at pp. 722-724.)

47

 Rather than discuss or even cite Peniston, appellant relies on Cross v.
Cooper, supra, 197 Cal.App.4th 357 for the proposition that there could be
no disclosure of a secret when the images were publicly available (on
appellant’s website) for all to see. (AOB 52-53.) However, that case does
not assist appellant. In Cross, a landlord sued her tenants for breach of
contract and a variety of torts based on the allegations that the tenants
threatened to disclose to prospective buyers that a registered sex offender
lived nearby unless the landlord agreed to waive one month’s rent. (Id. at
pp. 365-366.) The tenant moved to dismiss under the anti-SLAPP (Strategic
Lawsuit Against Public Participation) provisions of Code of Civil
Procedure section 425.16. The trial court denied the motion, but the Court
of Appeal reversed. In order to survive the anti-SLAPP motion, the
landlord had to conclusively establish that the tenant’s acts were illegal as a
matter of law and, therefore, not entitled to anti-SLAPP protection. The
Court of Appeal held the landlord could not satisfy this burden because the
record established that most, if not all, elements of such an offense are
“contested issues of fact.” (Cross, supra, 197 Cal.App.4th at p. 388.)
Relying on all the circumstances, including the fact that the location of the
sex offenders was both publicly available and, in any event, the landlord
was required to disclose this information before any sale, the Court of
Appeal reasoned that the record did not “conclusively prove that the
location of the offender was a matter so unfavorable to [the landlord’s]
interests or that she so feared its disclosure. . . .” (Ibid.)
Thus, contrary to appellant’s position, the Cross court did not hold
that information publicly available on a website cannot constitute a secret
for purposes of extortion. Instead, the court simply held that the purportedly
extorted party (i.e., the landlord) could not establish that the tenants’
actions necessarily constituted extortion as a matter of law because the
resolution of this issue depended on the facts of the case. Here, the roles are

48

 reversed, and this Court must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence.
(People v. Kraft, supra, 23 Cal.4th at p. 1053.) “The elements of threat and
fear being questions of fact for the jury’s determination, its finding in that
regard will not be set aside where the evidence, as in the present case,
supports its conclusion.” (People v. Oppenheimer, supra, 209 Cal.App.2d
at p. 424.)
Indeed, the Cross court specifically cited Peniston and Lavine,
reiterating the long-established principle that for purposes of extortion,
“‘The “secret” referred to in the statute is a matter “unknown to the general
public, or to some particular part thereof which might be interested in
obtaining knowledge of the secret. . . .’” (Cross, supra, 197 Cal.App.4th at
p. 387, italics added.) Under this definition, public information may still be
a secret as long as there is some segment of the population that is unaware
of the information. In light of Cross’s own duty to disclose this very
information, Cross failed to show that it was not a contested question of
fact whether the location of the sex offender was a secret. (Id. at p. 388.)
But even if the widespread disclosure meant that appellant could not
“expose” a “secret,” the continued posting of the pictures on the Internet
threatened to impute a “disgrace” under section 519, subdivision (3).
Unlike subdivision (4), which proscribes exposure of a secret, the language
of subdivision (3) may be satisfied alternatively either by acts that “expose”
or acts that “impute” a disgrace. By drawing this distinction, the Legislature
presumably meant to proscribe acts that attribute a disgrace, even once that
disgrace has already been exposed. And this distinction makes sense: a
person’s reputation may be harmed anew with each fresh suggestion of
disgrace, even if that disgrace is not a secret and even if it has previously
been exposed. (Cf. Melvin v. Reid, supra, 112 Cal.App. at p. 292
[publication of “unsavory incidents” in woman’s past life, after she had

49

 reformed, coupled with her true name, violated her right of privacy].) As
the testimony in the instant case amply revealed, as long as the photos
remained on the Internet, the victims could not begin to mend their
reputations. Any requirement that the qualifying disgrace not be known or
previously revealed would collapse the distinction between “secret” and
“disgrace,” and blur the difference between the alternative elements of
“expos[ing]” and “imput[ing].”16
Relying on the Ninth Circuit’s interpretation of California law in
Levitt v. Yelp! Inc. (9th Cir. 2014) 765 F.3d 1123 (Yelp!), appellant
alternatively contends that as an interactive computer service provider he
was “under no legal obligation to remove the postings submitted to the
website by third parties, even when those postings are negative in nature.”
(AOB 50.) Appellant maintains that because he could have refused to
remove the offending content, offering to remove the content for a fee
could not have constituted extortion. (AOB 50.) But Yelp! is distinguishable
because the instant case does not simply involve “negative” information or
reviews; the victims here had a pre-existing right to have their photos and
other personal information removed. Further, appellant misapprehends
California law and the Ninth Circuit’s interpretation of that law is neither
controlling nor persuasive.
In Yelp!, several business owners alleged that Yelp!, Inc., which
provides an online forum for users to rate and express opinions about

16

For similar reasons, continued exposure of the victims’ photos and
personal identifying information threatened the victims with an “unlawful
injury to the person or property” under section 519, subdivision (1). There
is no requirement of an “exposure” under this provision. Instead, the
victims continued to suffer harm as long as Internet trolls were able to
contact them using the personal data that appellant provided. The jury,
however, was not instructed on this theory. (2CT 379.)

50

 businesses, created negative reviews of their businesses and manipulated
review and ratings content to induce them to purchase advertising. For
instance, one small business owner alleged that two days after he declined
to purchase advertising from Yelp!, several positive reviews disappeared
from the Yelp! website and his overall rating declined from 4.5 stars to 3
stars. (Yelp!, supra, 765 F.3d at p. 1127.) The Ninth Circuit held that the
allegations failed to state a claim for economic extortion under either the
Hobbs Act (18 U.S.C. § 1951(b)(2)) or Penal Code sections 518 and 519.
(Id. at p. 1134.) The court concluded that to state a claim under the Hobbs
Act and California law, “a 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.” (Id. at p. 1133.)
Applying these requirements, the court concluded that the businesses had
no pre-existing right to have positive reviews appear on the Yelp! website,
and therefore, they could not be extorted by Yelp!’s removal of those
positive reviews or manipulation of the order of the reviews. (Id. at pp.
1133-1134.)
At the outset, it is not clear that California law is entirely co-extensive
with federal law. The Yelp! court was apparently relying solely on section
519, subdivision (1), which proscribes a threat to do an “unlawful injury to
the person or property” of the victim. (Yelp!, supra, 765 F.3d at pp. 11321133.) The court did not grapple with exposure of a secret or imputation of
a disgrace or deformity under section 519, subdivisions (3) and (4), which
contain no similar limitation of only applying to “unlawful” revelations.
For instance, in Peniston, which involved the threatened exposure of a
secret under subdivision (3), there was no discussion of any requirement
that the victim have “a pre-existing right to be free from the threatened
harm,” as the Ninth Circuit required in Yelp!, 765 F.3d at page 1133. Nor
did the facts in Peniston reveal the victim had such a pre-existing right

51

 based on photos that were otherwise widely exhibited. (Peniston, 242
Cal.App.2d at pp. 722-723.) The threat of exposure, and the fear that it
engendered, were sufficient by themselves to state a claim. (Id. at p. 722.)
Contrary to the pre-existing right test announced in Yelp!, our state
Supreme Court has recognized that threats to do otherwise legal action can,
in some circumstances, give rise to claims of extortion: “Extortion has been
characterized as a paradoxical crime in that it criminalizes the making of
threats that, in and of themselves, may not be illegal. “[I]n many blackmail
cases the threat is to do something in itself perfectly legal, but that threat
nevertheless becomes illegal when coupled with a demand for money.”
(Flatley v. Mauro, supra, 39 Cal.4th at p. 326, quoting Philippine Export &
Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058,
1079.) Obviously, the California Supreme Court’s interpretation of
California is controlling, not the Ninth Circuit’s. (People v. Crittenden
(1994) 9 Cal.4th 83, 120, fn. 3; Howard Contracting, Inc. v. G.A.
MacDonald Construction Co. (1998) 71 Cal.App.4th 38, 52 [“federal
decisional authority is neither binding nor controlling in matters involving
state law”].)
In any event, even if Yelp! were correct, there was more than adequate
evidence of a pre-existing legal duty in the present case. The victims here
had a right not to have their personal identifying information made public
on appellant’s website. (§§ 530.5, 530.55.) This was not, as in the case of
Yelp!, simply a manipulation of negative reviews; the victims here had a
right of privacy over their personal information and photographs that
appellant published on his website.
Appellant’s assertion that he could have legally declined to remove
the content because he was immune under the CDA as an interactive
service provider (AOB 50) is incorrect for the reasons discussed in
Argument I, infra. The present case is distinguishable from Yelp! because

52

 appellant actively developed content by requiring users to post the victims’
PII. He did not simply create a forum for users to post comments, good or
bad, about a victim. Instead, he required that the postings contain specific
PII content and that content violated the victims’ right of privacy.
Moreover, as previously discussed, appellant did not simply fail to remove
the offending images and data; he actively developed and encouraged that
information through the required fields of his website. Accordingly, there
was sufficient evidence of extortion even under the Ninth Circuit’s tests in
Yelp!.
Finally, even if appellant could show there were insufficient facts to
support either of the two theories of extortion, the jury would not have
relied on any such inadequate theory. (People v. Guiton, supra, 4 Cal.4th at
p. 1131.)
III. APPELLANT INVITED ANY ERROR REGARDING THE CACI
INSTRUCTIONS HE REQUESTED; IN ANY EVENT, THE
INSTRUCTIONS, WHEN CONSTRUED AS A WHOLE, REQUIRED
THE JURY TO DETERMINE EVERY ELEMENT BEYOND A
REASONABLE DOUBT
The unauthorized use of PII under section 530.5, subdivision (a),
required the People to show, among other things, that appellant willfully
used PII for an “unlawful purpose.” (2CT 381.) As previously noted, the
People proceeded on three separate theories to show an unlawful purpose:
(i) violation of section 653m; (ii) public disclosure of private facts; and (iii)
intrusion into private affairs. (2CT 385.) The requirements of the latter two
theories were defined in separate instructions under CACI 1800 and 1801.
(2 CT 387-388.) Appellant argues the trial court erred in giving the CACI
instructions, because those apply to civil litigation and the standard applied
to a civil wrong is lower than the standard of proof beyond a reasonable
doubt. (AOB 54-59.) But appellant invited any error by requesting the very
instructions he now challenges. In any event, he cannot demonstrate error

53

 because the instructions, construed as a whole, unambiguously required the
jury to find all elements, including those set forth in the two CACI
instructions, beyond a reasonable doubt.
At the outset, appellant invited any error. (See People v. Lucero
(2000) 23 Cal.4th 692, 723, [“The doctrine of invited error bars a defendant
from challenging an instruction given by the trial court when the defendant
has made a ‘conscious and deliberate tactical choice’ to ‘request’ the
instruction”].) Contrary to his current assertions (AOB 54), it was appellant
who specifically requested that the trial court instruct the jury with CACI
1800 and 1801. (7RT 996-998.) The People had proposed instructing the
jury with BAJI 7.20 and 7.21, and opposed appellant’s suggested
instructions. (7RT 996, 1001-1004.) The court overruled the People’s
objection and gave appellant’s requested instructions. (7RT 1004-1005.)
The defense had tactical reasons for making this request. (7RT 998-999.)
As defense counsel noted, CACI 1800 gave “something for the defense to
argue” regarding whether the victims had a reasonable expectation of
privacy. (7RT 1003.) The People, on the other hand, favored clarifying that
the expectation must be assessed in reference to the identity of the intruder
and the nature of the claimed violation. (7RT 1004.) The trial court
concluded that these were factors for the People to argue. (7RT 10041005.) The defense submitted CACI 1801 in order to be consistent. (7RT
1006.) In light of these facts, appellant made a “conscious and deliberate
tactical choice” to request the instructions he now challenges, and his claim
is procedurally barred on appeal. (See, e.g., People v. Turner (2004) 34
Cal.4th 406, 434 [finding invited error where defendant proposed an
instruction, the People objected, and both parties subsequently agreed to the
language to be included]; People v. Seaton (2001) 26 Cal.4th 598, 667-668
[purported defects in standard instructions not reviewable where defendant
requested those instructions]; People v. Weaver (2001) 26 Cal.4th 876, 969-

54

 970 [claim barred where defense counsel requested challenged
instruction].)
Even assuming appellant’s claim were preserved, it lacks merit. In
order to demonstrate jury instructions are misleading, a defendant must
prove a reasonable likelihood the jury misunderstood the instructions
construed as a whole. (People v. Cain (1995) 10 Cal.4th 1, 36, 40; People v.
Kelly (1992) 1 Cal.4th 495, 525; People v. Price (1991) 1 Cal.4th 324, 446;
People v. Jenkins (1994) 29 Cal.App.4th 287, 297.) “‘“The absence of an
essential element in one instruction may be supplied by another or cured in
light of the instructions as a whole.”’” (People v. Castillo (1997) 16 Cal.4th
1009, 1016; People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) The
reviewing court must assume the jurors were intelligent persons and
capable of understanding and correlating all jury admonitions and
instructions which were given. (People v. Mills (1991) 1 Cal.App.4th 898,
918.) As the United States Supreme Court has commented:
Jurors do not sit in solitary isolation booths parsing
instructions for subtle shades of meaning in the same way that
lawyers might. Differences among them in interpretations of
instructions may be thrashed out in the deliberative process with
commonsense understanding of the instructions in light of all
that has happened at trial likely to prevail over technical
hairsplitting
(Boyde v. California (1990) 494 U.S. 370, 380-381.) “Boyde. . . mandates
that the whole context of the trial be considered.” (Brown v. Payton (2005)
544 U.S. 133, 144.)
Appellant fails to abide by these principles. Here, the court expressly
instructed the jury regarding the requirements of proof beyond a reasonable
doubt under CALCRIM No. 220. That instruction informed the jury, among
other things, that “A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People prove a defendant
guilty beyond a reasonable doubt. Whenever I tell you the People must

55

 prove something, I mean they must prove it beyond a reasonable doubt.”
(2CT 370, italics added.) The court reiterated this principle by giving
CALCRIM No. 224, which stated in relevant part that “Before you may
rely on circumstantial evidence to conclude that a fact necessary to find the
defendant guilty has been proved, you must be convinced that the People
have proved each fact essential to that conclusion beyond a reasonable
doubt.” (2CT 359.) The court also gave a similar instruction regarding
circumstantial evidence used to show intent. (CALCRIM No. 225; 2CT
392.)
Regarding section 530.5 in particular, the trial court instructed the
jury that to find appellant guilty of that offense, the People had to prove the
following three elements:
1. The defendant willfully obtained someone else’s personal
identifying information;
2. The defendant willfully used that information for an unlawful
purpose
AND
3. The defendant used the information without the consent of
the person whose identifying information he was using.
(2CT 381.) Finally, CALCRIM No. 251 underscored that the charged
crimes required proof of the union, or joint operation, of act and wrongful
intent; to find appellant guilty, he had to not only commit the prohibited
act, but do so with a specific intent. (2CT 389.)
Appellant points to nothing in the language of CACI 180017 or 180118
that suggested the burden of proof was anything less than proof beyond a

17

CACI 1800, as adapted, stated as follows:
Intrusion Into Private Affairs
(continued…)

56

 (…continued)
An unlawful purpose required for the unauthorized use of personal
identifying information as charged in several counts may also be based
upon a claim of invasion of privacy by intrusion into private affairs. The
essential elements of this claim are:
1. That victim had a reasonable expectation of privacy in the
photographs and other personal identifying information;
2. That the defendant intentionally intruded into the solitude,
seclusion or private affairs of the victim;
3. That the defendant’s intrusion would be highly offensive to a
reasonable person;
4. That victim was harmed; and
5. That defendant’s conduct was a substantial factor in causing the
victim’s harm.
In deciding whether the victim had a reasonable expectation of
privacy in the photographs or other personal identifying information, you
should consider, among other factors, the following:
(a)
The identity of the defendant
(b)
The extent to which other persons had access to the
photographs and other personal identifying information and could see or
hear the victim and
(c)
The means by which the intrusion occurred.
In deciding whether an intrusion is highly offensive to a reasonable
person, you should consider, among other factors, the following:
(a)
The extent of the intrusion;
(b)
The defendant’s motives and goals; and
(c)
The setting in which the intrusion occurred.
(2 CT 387.)
18

CACI 1801, as adapted, stated as follows:
Public Disclosure of Private Facts
An unlawful purpose required for the unauthorized use of personal
identifying information as charged in several counts may also be based
upon a claim of invasion of privacy by public disclosure of private facts.
(continued…)

57

 reasonable doubt. Instead, he relies on the generalized notion that “the
standard applied to a civil wrong is lower than beyond a reasonable doubt
as is applied to a criminal offense and all elements of that offense.” (AOB
55.) But he ignores the fact that the instructions here, construed as a whole,
unambiguously required the jury to find appellant guilty of all elements
beyond a reasonable doubt. Notably, appellant does not even mention
CALCRIM No. 220. Nor does he suggest that either counsel intimated that
the standard for proving an intrusion into private affairs or public disclosure

(…continued)
1. That the defendant publicized private information concerning the
victim;
2. That a reasonable person in the victim’s position would consider
the publicity highly offensive;
3. That the defendant knew, or acted with reckless disregard of the
fact, that a reasonable person in victim’s position would consider the
publicity highly offensive;
4. That the private information was not of legitimate public concern
or did not have a substantial connection to a matter of legitimate public
concern;
5. That the victim was harmed; and
6. That the defendant’s conduct was a substantial factor in causing
the victim’s harm.
In deciding whether the information was a matter of legitimate
public concern, you should consider, among other factors, the following:
(a) The social value of the information;
(b) The extent of the intrusion into victim’s privacy;
(c) Whether the victim consented to the publicity explicitly or by
voluntarily seeking public attention or a public office;
In deciding whether the defendant publicized the information, you
should determine whether it was made public either by communicating it to
the public at large or to so many people that the information was
substantially certain to become public knowledge.
(2CT 388.)

58

 of private facts could be based on a mere preponderance of evidence or
anything less than proof beyond a reasonable doubt
In a final and unsupported sentence, appellant asserts that “The use of
elements of civil wrongs to establish criminal liability was error.” (AOB
58.) But at least one court has rejected a similar contention. (In re Rolando
S., supra, 197 Cal.App.4th at p. 942.) In Rolando S., the defendant used the
victim’s email password and account to gain access to her Facebook
account, where he posted prurient messages in her name. (Id. at p. 939.) On
appeal, the defendant argued that while he may have defamed the victim,
civil torts do not constitute an “unlawful purpose” under section 530.5,
subdivision (a). Rejecting this assertion, the Court of Appeal held that
intentional civil torts, such as libel, constitute an “unlawful purpose” under
that provision. (Id. at p. 942.) The court reached this conclusion after
determining, based on its exhaustive examination of the legislative history
behind section 530.5 and its amendments, that “The Legislature clearly
intended to greatly expand the scope of unlawful conduct underlying the
identity theft offense.” (Id. at p. 945.) The Rolando S. court observed that
the term “unlawful” includes wrongful conduct that is not criminal, noting
that “an act is ‘unlawful. . . if it is proscribed by some constitutional,
statutory, regulatory, common law, or other determinable legal standard.’”
(Id. at p. 946, quoting Korea Supply Co. v. Lockheed Martin Corp. (2003)
29 Cal.4th 1134, 1159.)
Appellant does not discuss this portion of Rolando S. (cf. AOB 39
discussing Rolando S.’s treatment of the “willfully” requirement), or
otherwise give this Court any reason to distinguish the torts at issue here.
While the holding in Rolando S. was limited to intentional torts, such as the
libel challenged in that case, nothing in its reasoning or the legislative
history suggests such a limitation. Although intrusion into private affairs is
an intentional tort (Sanders, supra, 20 Cal.4th at p. 926 [intentional

59

 intrusion required]; CACI 1800; 2CT 387), public disclosure of private
facts requires only that the defendant knew, or acted with reckless disregard
of, the fact that a reasonable person in the victim’s position would consider
the publicity highly offense (CACI 1801; 2CT 388). This satisfies the
requirement of Rolando S. of conduct that is “proscribed by some. . .
common law, or other determinable legal standard.” (In re Rolando S.,
supra, 197 Cal.App.4th at p. 946.) Moreover, in any event, the jury here
was instructed that in order to be guilty of violating section 530.5,
subdivision (a), the defendant had to “willfully” use the information for an
unlawful purpose. (2CT 381.) The jury was further instructed that he had to
commit the act with a specific intent. (2CT 389.) Thus, as instructed, the
jury nonetheless specifically had to find that appellant acted with the
requisite intent.

60

 CONCLUSION
Accordingly, for the reasons stated above, respondent respectfully
requests that this Court affirm the judgment.
Dated: February 4, 2016

Respectfully submitted,
KAMALA D. HARRIS

Attorney General of California
GERALD A. ENGLER
Chief Assistant Attorney General
JULIE L. GARLAND
Senior Assistant Attorney General
ERIC A. SWENSON
Supervising Deputy Attorney General
JUNICHI P. SEMITSU
Deputy Attorney General
GARRETT A. GORLITSKY
Deputy Attorney General

. r_a~I

·v
Deputy Solicitor General
Attorneys for Plaintiff and Respondent
TEVE OETTING

SO:lb
SD2015801333
71163154.doc

61

 CERTIFICATE OF COMPLIANCE

I certify that the attached RESPONDENT'S BRIEF uses a 13-point
Times New Roman font and contains 19,852 words.
Dated: February 4, 2016

KAMALA D. HARRIS

General of California

STEVE OETTING

Supervising Deputy Attorney General
Attorneys for Plaintiff and Respondent

 DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE
Case Name:

People v. Bollaert

No.:

D067863

I declare: I am employed in the Office of the Attorney General, which is the office of a member
of the California State Bar, at which member's direction this service is made. I am 18 years of
age or older and not a party to this matter. I am familiar with the business practice at the Office
of the Attorney General for collection and processing of correspondence for mailing with the
United States Postal Service. In accordance with that practice, correspondence placed in the
internal mail collection system at the Office of the Attorney General is deposited with the United
States Postal Service that same day in the ordinary course of business. The Office of the
Attorney General's eService address is AGSD.DAService@doj.ca.gov.
On February 4, 2016, I served the attached RESPONDENT'S BRIEF by placing a true copy
thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail
collection system at the Office of the Attorney General at 600 West Broadway, Suite 1·800, P.O.
Box 85266, San Diego, CA 92186-5266, addressed as follows:

Electronic Service Only:
Patrick J, Hennessey, Jr.
Attorney at Law
2356 Moore St., Ste. 201
San Diego, CA 92110
ADI Panel Attorney for Appellant
pjhjr@hotmail.com
Electronic Service Only:
Appellate Defenders, Inc.
555 West Beech Street, Suite 300
San Diego, CA 92101

Clerk, Criminal Appeals - FOR:
Honorable David M. Gill, Judge
San Diego County Superior Court
220 West Broadway
San Diego, CA 92101-3409

Electronic Service Only:
The Honorable Bonnie M. Dumanis
District Attorney - Attn: Appeals
San Diego County District Attorney's
Office
330 West Broadway, Suite 1320
San Diego, CA 92101

I

Additionally, in compliance with California Rules of Court, rules 2.25 l(i)(l )(A)-(D) and
8.71(f)(l)(A)-(D), and by 5:00 p.m. on the close of business day, I electronically served a copy
of the above document on February 4, 2016, to the following.
eservice-criminal@adi-sandiego.com
Appellate Defenders, Inc.'s
pjhir@hotmail.com
Appellant's Attorney

da.appellate@sdcda.org
San Diego District Attorney's Office

I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on February 4, 2016, at San Diego, California.
L. Blume
Declarant
SD20158013JJ

71161085.doc

Signature