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

PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent,

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

v.
KEVIN CHRISTOPHER BOLLAERT,
Defendant and Appellant.

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

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

 TABLE OF CONTENTS
STATEMENT OF APPEALABILITY.............................. 1
STATEMENT OF THE CASE................................... 2
STATEMENT OF FACTS...................................... 4
A. Introduction ..................................... 4
B. People’s Witnesses ............................... 5
ARGUMENT I............................................. 20
APPELLANT’S CONVICTIONS FOR IDENTITY THEFT UNDER PENAL
CODE SECTION 530.5(a) MUST BE SET ASIDE AS HE WAS NOT
AN INFORMATION OR INTERNET CONTENT PROVIDER AND
THEREFORE MAY NOT BE PROSECUTED UNDER THAT STATUTE. .. 20
A. Introduction. ................................... 20
B. The Law ......................................... 21
C. Discussion ...................................... 23
ARGUMENT II............................................ 45
THE EVIDENCE FAILS TO SUPPORT APPELLANT’S CONVICTIONS
FOR EXTORTION. ....................................... 45
A. Introduction .................................... 45
B. The Law ......................................... 45
C. Discussion ...................................... 47
ARGUMENT III........................................... 54
THE TRIAL COURT ERRED IN INSTRUCTING THE JURY WITH CACI
CIVIL LITIGATION INSTRUCTIONS ALLOWING THE JURY TO
ELEVATE A CIVIL WRONG INTO AN ELEMENT OF A CRIMINAL
OFFENSE OF UNAUTHORIZED USE OF PERSONAL IDENTIFYING
INFORMATION BASED ON PENAL CODE SECTION 653m,
SUBDIVISION (a) ...................................... 54
A. Introduction .................................... 54
B. The Law ......................................... 55
C. Discussion ...................................... 57
CONCLUSION............................................. 60
CERTIFICATION OF WORD COUNT............................ 61
PROOF OF SERVICE BY MAIL/ELECTRONIC SERVICE SUBMISSION. 62
i

 TABLE OF AUTHORITIES

Cases
Barnes v. Yahoo! Inc. (9th Cir.)(2009) 570 F.3d 1096,
1102 ................................................. 32
Bartosh v. Banning (1967) 251 Cal.App. 3d 378, 386..... 59
Batzel v. Smith (9th Cir.2003) 33 F.3d 1018........ 31, 36
Calofano v. Metrosplash.com Inc. (9th Cir.2003) 339 F.3d
1119 ................................................. 33
Carofano v. Metrosplash.com, Inc. (9th Cir. 2003) 339
F.3d 1119, 1125 ...................................... 38
Chan v. Lund (2010) 188 Cal.App. 4th 1159, 1171........ 46
Chapman v. California (1967) 386 U.S. 18............... 59
College Hospital Inc. v. Superior Court(1994) 8 Cal.4th
704, 715 ............................................. 60
Cross v. Cooper (2011) 197 Cal.App. 4th 357, 386, 387.. 46
Cross v. Cooper (2011) 197 Cal.App. 4th 357, 387-388... 53
Estelle v. Maguire (1991) 502 U.S. 62, 75.............. 57
Fair Housing Counsel of San Fernando Valley v.
Roomates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1179 29
Four Navy Seals v. Associated Press (2005) 413 F.Sup.
1136, 1143 ........................................... 44
Green v. America Online (3d Cir.2003) 318 F.3d 465, 470471 .................................................. 40
In Re Rolando S. (2011) 197 Cal.App. 4th 936........... 39
Jackson v. Virginia (1979) 433 U.S. 307, 318 [61 L.Ed.2d
560, 99 S.Ct. 2761] .................................. 23
Jackson v. Virginia (1979) 443 U.S. 307 [61 L.Ed.2d 560,
99 S.Ct. 2781] ....................................... 21
ii

 Jones v. Dirty World Entertainment Recordings, LLC (6th
Cir.2014) 755 F.3d 398 ............................... 34
Levitt v. Yelp!, Inc. (9th Cir. 9/2/14) __ F.3d ___.... 48
Mullaney v. Wilbur (1975) 421 U.S. 684, 704 [95 S. Court
1881, 1892] .......................................... 58
Nemet Chevrolet, Ltd., v. Consumeraffairs.com, Inc. (4th
Cir.2009) 591 F.3d 250, 254 .......................... 38
People v. Banks (1976) 67 Cal.App. 3d 379, 383-384..... 58
People v. Barnett (1998) 17 Cal.4th 1044, 1045......... 57
People v. Cole (2004) 33 Cal.4th 1158, 1208............ 58
People v. Cordova (1979) 97 Cal.App.3d 665, 669–670.... 22
People v. Flood (1999) 18 Cal.4th 470, 502-503......... 59
People v. Hesslink (1985) 167 Cal.App. 3d 781, 788..... 50
People v. Johnson (1980) 26 Cal. 3d 557 [162 Cal.Rprt.
431, 606 P.2d 738] ............................... 21, 22
People v. Marshall (1997) 15 Cal.4th 1, 34............. 22
People v. Sedeno (1974) 10 Cal.3d 703, 715-716......... 57
People v. Shaw (2002) 97 Cal.App. 4th 833, 838......... 57
People v. St. Martin (1970) 1 Cal.3d, 524, 531......... 57
People v. Towler (1982) 31 Cal. 3d 105, 117–119........ 21
People v. Vann (1974) 12 Cal.3d 220, 225............... 22
People v. Waidlaw (2000) 22 Cal.4th 690, 733........... 57
People v. Watson (1956) 46 Cal.2d 818.................. 60
People v. Young (1981) 120 Cal.App. 3d 683, 693–694.... 22
Reno v. American Civil Liberties Union (1997) 521 U.S.
844, 852 ..................................... 24, 36, 37
United States v. Lifshitz (2d Cir. 2004) 369 F.3d 173.. 44

iii

 Universal Communications Systems Inc. v. Lycos, Inc. (1st
Cir. 2007) 478 F.3d 413, 419 ......................... 30
Zeran v. America Online, Inc., supra, at p. 330 30, 36, 38
Zeran v. America Online, Inc. (4th Cir.1997) 129 F.3d
327, 330 ............................................. 25
Zeran v. America Online, Inc., supra, 129 F.3d 327, 330 29
Statutes
47 U.S.C. section 230.................................. 20
47 U.S.C. Section 230, subdivision (a)(4).............. 36
47 U.S.C. Section 230, subdivision (b)(2), (3)......... 37
47 U.S.C. section 230, subdivision (c)(1).............. 25
47 U.S.C. section 230, subdivision (e)(3).............. 25
47 U.S.C. Section 230, subdivisions (c)(1)............. 44
Penal Code section 1118.1............................... 2
Penal Code section 1237................................. 1
Penal Code section 519................................. 47
Penal Code section 520.................................. 2
Penal Code section 530.5........................... 20, 26
Penal Code section 530.5(a)............................ 20
Penal Code section 530.5(f)............................ 20
Penal Code section 530.5, (a)........................... 2
Penal Code section 530.5, subdivision (f).............. 26
Penal Code section 647, subdivision (j)(4)............. 41
Penal Code section 653(m).......................... 20, 41
Penal Code section 653, subdivision (m)................ 41

iv

 Penal Code section 653m(a)............................. 56
Penal Code section 653m, subdivision (a)........... 55, 59
Penal Code section 654.................................. 2
Penal Code sections 182, subdivision (a)(1) and 530.5... 2
Penal Code sections 519 and 520........................ 49
Penal Code sections 519, 520........................... 46
section 230................................ 24, 36, 37, 40
section 230, subdivision (b)(2)........................ 36
Section 350.5.......................................... 26
Section 653............................................ 42
subdivision (f)(2)..................................... 28
subsection (f) of section 230...................... 20, 26
Rules
CALCRIM 1830........................................... 51
CALCRIM 2041........................................... 27

v

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

PEOPLE OF THE STATE OF
CALIFORNIA,
Plaintiff and Respondent,

SAN DIEGO COUNTY
SUPERIOR COURT NO.
SCD252338

v.
KEVIN CHRISTOPHER BOLLAERT,
Defendant and Appellant.

APPEAL FROM THE SUPERIOR COURT OF SAN DIEGO COUNTY
(HONORABLE DAVID M. GILL, JUDGE)
APPELLANT’S OPENING BRIEF
STATEMENT OF APPEALABILITY
This appeal is from a final judgment following trial
by jury and is authorized by Penal Code section 1237.

1

 STATEMENT OF THE CASE
In amended information filed on January 13, 2015,
appellant, Kevin Bollaert, was charged in count one with
conspiracy to commit identity theft in violation of Penal
Code sections 182, subdivision (a)(1) and 530.5.

Counts

2, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19,
21, 23, 24, 26, 27-30, 32, 35 charged appellant with
identify theft in violation of Penal Code section 530.5,
subdivision (a).

Counts 3, 5, 6, 20, 22, 25, 31, 33-34,

36, charged appellant with extortion in violation of
Penal Code section 520.

(1CT 164-176.)

During the course of trial, counts 4, 5, 9, 10, 3436 were dismissed either on appellant’s motion pursuant
to Penal Code section 1118.1 or the People’s motion to
dismiss.

(CT 167-175.)

Following trial, the jury was deadlocked as to
counts 1, the conspiracy, and 25.
mistrial as to both counts.
of the remaining counts.

The court declared a

Appellant was found guilty

(3CT 724-772.)

On April 3,

2015, appellant was sentenced on count 3 the middle term
of three years.

A two-year midterm was imposed on count

two but stayed pursuant to Penal Code section 654.
Consecutive 8-month (one-third of the midterm) terms were

2

 imposed on counts 4-15, 17, 19, 20, 22-26 and 28.
Consecutive one-year terms (one-third of the midterm)
were imposed on counts 16, 18, 21, 27, and 29.
county prison term was 18 years.

The total

Appellant was given

credit for 124 days of presentence custody.

The court

imposed a $10,000 restitution fine and a $10,000
probation/parole revocation fine.

The court ordered a

$1,080 court operations assessment, a $154 criminal
justice administrative assessment and a $10 criminal
conviction assessment.

Also ordered was $15,489.88 in

restitution to the victims.

(3CT 773-777.)

Notice of appeal was filed April 13, 2015.
646.)

3

(CT

 STATEMENT OF FACTS
A.

Introduction.
In 2012-2013 appellant and another individual set up

a website “Yougotposted.”

The site would post photos,

often nude, of both men and women.

The photos and

information as to the individual’s state and/or city of
residence, Facebook page and/or other social media
addresses were provided by third parties, in most cases
people having had prior relationships with the persons
whose photos were posted.
The website also provided a link wherein those whose
photos were posted could request they be removed.

In

some cases the photos were removed for free and in others
individuals paid a fee to have the photos removed from
the website.

The link for removal of the photos used by

most of the individuals was “changemyreputation.com.”
Following an investigation by officials of the California
Department of Justice, appellant, Kevin Bollaert, took
down the website and was cooperative with investigating
agents as to their inquires regarding his actions
relating to the website.

4

 B.

People’s Witnesses.1

Brianna-Count 6
In October of 2013 Brianna discovered that
photographs of her had been posted on a website.

She

received this information from comments on her Facebook
account.

She searched the website and saw a number of

her pictures, including nude pictures, had been posted on
the website, “Yougotposted.”

(4RT pp. 267-270.)

Brianna

believed that the photographs had been taken by a former
boyfriend who also may have been behind a number of
harassing messages she received following posting of the
photographs.

(4RT pp. 275-276.)

Brianna described how she received a number of
unsolicited emails that were offensive to her.
272.)

(4RT p.

Brianna stated that she paid no money to have the

pictures removed from the site.

1

(4RT p. 276.)

A number of the individuals whose photos were posted
testified and generally provided the same information as
to their discovery that their photos had been posted,
information as to who provided the photos to the website
as well as a discussion of the distress and/or other
issues arising from the posting of the photos. A summary
as to each witness will be provided.
5

 Alice-Count 11
In August of 2013, Alice had gone to a party.

She

believes that someone put a drug in a cocktail she
consumed.

Two to three days later, she found photos of

her posted on the website.

She also received a number of

salacious messages from strangers about the photos.
pp. 277-278.)

(4RT

Alice was not sure who took the photos but

a male identified in one of the photos was a friend of a
friend of hers.

The posting stated where she lived and

other information such as a Facebook site.

Alice

contacted Yougotposted and asked that the photos be
removed.

She received a response stating that there was

a charge to pay in order to have the photos removed from
the site.

(4RT pp. 281-283.)

Alice did acknowledge that

the photos were probably taken by a friend of hers, Joey
and his girlfriend.

She did not pay any money to have

the photos removed.

(4RT pp. 284-286.)

Nicole C.-Count 14
In May of 2014, Nicole C. received a number of lewd
messages on her Facebook account.
from strangers.

Most of these were

She later discovered that her photos had

been posted on the website.

She had taken the photos for

her ex-fiancée who apparently sent the photos to the

6

 website.

(4RT pp. 290-293, 295.)

Alice to be very upset.

She dropped out of school and

had difficulty obtaining a job.
money to the website.

The photos caused

She did not pay any

(4RT pp. 293-295.)

Alaina-Counts 21-22
In May of 2013, Alaina received a call at her place
of employment from someone who had told her that her
photos had been posted on the website.

(4RT p. 296.)

She sent a number of emails to Yougotposted asking the
photos be taken down.

She then contacted the site

Changemyreputation and made a $350 payment.
were removed the following day.

The photos

The photos and the fact

that other people had seen them caused her to become
upset. (4RT pp. 298-303.)
Jocelyn-Count 27
Jocelyn described that in the same time period she
had pictures posted on Yougotposted.

She received word

from a friend of her sister that her photos were there.
The fact the photos were posted caused her issues at home
and at work.

She also received a number of vulgar

contacts from various strangers.

(4RT pp. 308-312.)

Jocelyn noted that she may have told investigators the

7

 pictures were taken down from the site within two days of
a call from her sister.

(4RT p. 314.)

Megan-Count 17
In January of 2013 Megan took a number of “selfies”,
some of which were nude photos.

She in turn sent the

photos to her boyfriend and one other person.

She later

learned the photos had been posted on the website as she
began receiving messages from strangers.

She requested

the photos be taken down and nothing happened.

She was

concerned because the website listed her name and her
hometown.

Megan believed that the photos were submitted

to the website by someone she knows and that appellant
was not responsible for that.

(4RT pp. 318-327.)

Ashley-Count 28
In July of 2013, Ashley received word that her
photos had been posted on the website.

She received a

number of messages from strangers as to the photos.

She

also stated that many people in her hometown knew about
the posting.

Ashley stated the photos were taken for her

boyfriend but she did not know if he was the one who
posted them on the website.

She contacted “Yougotposted”

and asked that the photos be removed but to her knowledge
they were not taken down.

(4RT pp. 330-333.)

8

 Kristina-Count 26
Kristina recalled that in July 2013 nude photographs
of her were posted on the website.

Also posted was

information as to her town of residence and her Facebook
account.

She received a number of vulgar messages from

people she did not know.

Kristina noted that the photos

had been sent by her to a man she was dating.

She noted

that one of her boyfriends to whom the photos were sent
wanted more nude photos of her before he would ask that
the site remove the photos down.

(4RT pp. 339-346.)

Brittany-Count 16
In July of 2013, Brittany received information from
friends that photos of her had been posted on the
website.

She received a number of messages from

strangers that she found humiliating.
site and viewed the photos.

She went to the

She recognized them as

photos sent to a boyfriend who had been deployed overseas
with the military.

Brittany made several requests to

have the photos removed.

(4RT pp. 349-356.)

She was

unsure whether it was the boyfriend who sent the photos
to the website.

(RT 357.)

9

 Nina-Count 12
In mid-August of 2013 a number of nude photos of
Nina were posted on the website.

The posting listed her

name and the city in which she lived as well as her
Facebook page.

She believed the boyfriend posted the

photos on the website.

(4RT pp. 399-400, 404.)

She

received a number of vulgar messages from strangers and
contacted the website to have the photos removed.

The

link to “changemyreputation” asked for a $500 payment to
remove the photos from the website.

(4RT pp. 404-405.)

She also noted that the same photos had been sent to
another website “myEx.com” that was unrelated to
appellant.

(5RT p. 412.)

Sarah-Count 15
In May of 2013, a number of photos of Sarah were
posted on the website.

She received this information

from friends on Facebook.

The site provided her full

name and the city in which she lived.

As a result she

received a number of derogatory comments from strangers.
(5RT pp. 537-539.)

Sarah requested the photos be deleted

on two separate occasions.

At one point the photos were

removed and then reposted, including new photos.

She

believed that it was possible some party unrelated to

10

 appellant may have hacked into her email account.

(5RT

pp. 542-546.)
Barbara-Count 23
In June of 2013 Barbara received word that a number
of her photos had been posted on the internet.

The

photos had been taken and were intended for her husband.
She tried to have them removed and received a response
that a payment was required to remove the photos.

(5RT

pp. 552-562.)
Jasmine-Counts 32-35
In June of 2013 a number of Jasmine’s photographs
were posted on the website.

Also included was her name

as well as her social media contact information.

It

created difficulty at her work when they found out about
the photos.

The photos were originally intended for her

boyfriend who was the individual responsible for posting
them on the website.
photos removed.

Jasmine paid $500 to have the

(5RT pp. 582-586.)

Jennifer-Counts 19-20
In late 2012 and early 2013 a number of photographs
of Jennifer were posted on the website.

She received a

number of comments from individuals that she did not know
as to the posting.

She asked the site to remove them.

11

 She paid $249.99 to “changemyreputation” to have the
photos removed.

(5RT pp. 595-600.)

Jane Doe-Count 7
In May of 2013, Jane began receiving messages from
strangers regarding a posting on the internet.

She

located a number of her photos that had been posted on
the site.

This posting caused her problems at her school

as well as her work.

She contacted an attorney who in

turn contacted the website.

Ultimately the photos were

removed after the contact by her attorney.

She believed

an ex-boyfriend had posted her photos on appellant’s
website as well as another site unrelated to appellant.
(5RT pp. 605-617.)
Rebecca-Counts 2-3
In March of 2013 Rebecca received calls from her
manager and others on her Facebook account regarding a
posting.

The photos were of her and an ex-fiancée.

pp. 627-629.)

(6RT

She recalled sending an email to both

“Yougotposted” and “changemyreputation” requesting the
photos be removed.

She was requested through the site

“changemyreputation” to make a PayPal payment for $249.99
to have the photos removed.

The photos were removed

within minutes of the payment.

12

(6RT pp. 633-637.)

She

 noted it was her ex-boyfriend who posted the photos and
he was also the individual who contacted her manager at
work.

(6RT p. 640.)

Christina-Count 18
In the middle of 2013 Christina had a number of
photographs posted on the website.

She believes the

photos were posted by someone who had stolen her cell
phone.

The listing gave her name and city of residence

as well as her Facebook address.
caused issues with her family.

Posting of the photos
Christina noted that she

had a third party contact “Yougotposted” to have the
photos removed.

She did not receive a reply.

(6RT pp.

644-647.)
Emily-no count alleged2
In June of 2013 photographs Emily had sent to her
fiancée were posted on the website.

She believes it was

her ex-fiancée who posted the photos.

She attempted to

have the photos removed but was unsuccessful.

She noted

that one of the links requested a payment to have the
photos taken down.

(6RT pp. 659-665.)

2

The court allowed limited testimony for a number of
parties who were not included in counts in the amended
information.
13

 Kaye-Count 13
In August of 2013 a number of Kaye’s photographs
were posted on the website.

The site listed her name,

hometown, as well as her Facebook and Twitter accounts.
She received a number of derogatory comments regarding
the postings.

Kaye contacted the police who sent an

email to “Yougotposted” advising them she was a juvenile.
She acknowledged the photos had been sent to a friend in
2010 and suspects he may have been the one who posted
them.

(6RT pp. 678-686, 689.)

Manuel-Counts 29-30
Manuel related that a number of his photos had been
posted on the website and he believed they had been sent
by a friend of his.

Manuel made a payment of $250 to

“changemyreputation” to have the photos removed.

(6RT

pp. 692-695.)
Brian-Counts 24-25
In March and April of 2013 Brian had a number of his
photographs posted on the website.

Also included were

his name and hometown plus his Facebook page.
$250 to have the photos removed.

14

Brian paid

(6RT pp. 706-715.)

 Aurora-Count 1
Aurora had a number of photos posted in September of
2013.

She became aware of the posting when she received

several Facebook messages related to the posting.

She

did not pay any money but noted that the site shut down
several weeks later.

(6RT pp. 724-731.)

Ms. V-Count 8
In June of 2013, Ms. V testified she had a number of
photos that she had sent to an ex-boyfriend posted on the
“Yougotposted” website.

She received a number of

messages from people she did not know regarding those
pictures.

(6RT pp. 771-772.)

Ms. V noted that the

photos were taken down one week later and that she made
no payment to have them removed.

(6RT pp. 775-777.)

As to some of the above-noted victims, a stipulation
was entered into between the parties clarifying certain
aspects of their testimony.

As to victim Ashley it was

stipulated that the person seeking additional nude photos
of her was not appellant.

It was also stipulated as to

Barbara that “changemyreputation.com” did not interact
with the public through any live chat or phone calls.
Additionally, the site requesting $5,000 from her to
remove the photos was not appellant’s.

15

As to Sarah it

 was stipulated that she told The Attorney General’s
investigator, Daniel Torres, that she had sent the photos
to her ex-boyfriend plus ten other people.

Finally, it

was stipulated as to Jocelyn that she had told
investigator Torres that the photos had been removed
within two days and never reposted.

(8RT pp. 1045-1046.)

Mark Kelly operates a forensic accounting firm that
works on occasion for the California Department of
Justice.

(5RT p. 373.)

He has access to a number of

programs by which he can search information from data
stores on other devices (computers).

In April of 2014 he

was asked by the Department of Justice to obtain forensic
images from appellant’s computers.

(5RT pp. 374-380.)

Kelly was able to determine appellant was using an HP
laptop.

The main computer was described as HPDV7.

(5RT

p. 385.)
By further examination Kelly was able to determine
there were list of names including most of the victims on
that particular computer.

Kelly believed appellant was

in control of that computer.

(5RT pp. 386, 395.)

He

believed appellant was the administrator of the website
who reviewed the contents before posting.
412.)

(5RT pp. 396,

Kelly was also able to determine that a number of

16

 payments had been made to the “changemyreputation.com”
website, also administered by appellant.

(5RT p. 428.)

Kelly noted that the “changemyreputation” site was set up
by appellant and that it would be readily observable on
the “Yougotposted” site to refer people for payment.
(5RT p. 439.)

The site set up by appellant and which

Kelly believed he maintained generally required an email
address, a name, and a location by city and state of
anyone posting on the website.

The site also asked for,

but did not demand, Facebook information.

(5RT p. 453.)

As best Kelly could tell, that computer was last
used in September of 2013.

This generally coincided with

the time in which he believed the site was shut down.
(5RT p. 460.)

Kelly was able to identify 119 payments

made to the websites.

(5RT p. 465.)

Kelly made no claim

appellant created the content but did believe appellant
was able to edit the contents of the pages in his
administering the website.

(5RT pp. 488-489.)

Kelly

noted that “Yougotposted” was an example of a website
that offered public opportunities to share or read text
and photos.

(5RT p. 502.)

Kelly also noted the site

specifically limited terms of usage to people over the
age of 18.

(RT 507.)

17

 Agent Brian Cardwell of the California Department of
Justice electronic crimes unit was asked to look into the
“Yougotposted” case in July of 2013.

(6RT pp. 778-779.)

At that time the site was still active and appellant was
the registered owner of the site.

Agent Cardwell

obtained the search warrant for the server on the site
seeking information as to “yougotposted.”

(6RT pp. 782-

787.)
Cardwell ultimately meet with appellant in San Diego
on September 18, 2013.

At that time they spoke for

approximately 50 minutes in an interview that was
recorded.

(Court’s Exhibit 1.)

(6RT p. 790.)

On that

September 18 date Cardwell took possession of appellant’s
laptop, a full size HP laptop, an Ipad and a Macintosh.
(6RT pp. 817-818.)
Agent Cardwell believed that there had been over
10,000 postings on the website and that there were
approximately 2,500 requests seeking removal of
information posted on that site.

(6RT pp. 817-818, 7RT

p. 841.)
Cardwell noted that in their interview appellant
stated that all content was submitted by third parties.
He merely supplied a “billboard” for others to use.

18

 Cardwell acknowledged that there are other similar sites
in existence.
2013.

The site ultimately closed in September of

(7RT pp. 844-846.)
Michelle Moreno an auditor with the Department of

Justice examined PayPal documents related to appellant’s
website.

She determined in excess of $30,000 had been

paid by various people through appellant’s PayPal
account.

(7RT pp. 884-894.)

19

 ARGUMENT I
APPELLANT’S
CODE SECTION
INFORMATION
COULD
A.

CONVICTIONS FOR IDENTITY THEFT UNDER PENAL
530.5(a) MUST BE SET ASIDE AS HE WAS NOT AN
OR INTERNET CONTENT PROVIDER AND THEREFORE
NOT BE PROSECUTED UNDER THAT STATUTE.

Introduction.
The People proceeded on three separate theories as

to why appellant fell within the purview of Penal Code
section 530.5(a), identity theft.

They proceeded, and

the jury was instructed that there were three separate
theories upon which the People were proceeding: (1)
violation of Penal Code section 653(m); (2) public
disclosure of private facts; and (3) intrusion into a
person’s private affairs.

(2CT 385-388.)

Penal Code section 530.5 specifically provides that
interactive service providers and access software
providers, as defined by the Communications Decency Act
(47 U.S.C. section 230, shall not be held liable absent a
showing of fraud.

Penal Code section 530.5(f) provides:

An interactive computer service or access software
provider as defined in subsection (f) of section 230
of Title 47 of the United States Code (the
Communications Decency Act) shall not be liable
under this section unless the service provider
acquires, transfers, sells, conveys, or retains
possession of personal information with the intent
to defraud.

20

 Appellant’s convictions for identity theft cannot
stand because no identity theft occurred and his conduct
was protected by the Federal statue which supersedes laws
of the State of California.
B.

The Law.
The standard of appellate review on the question of

sufficiency of the evidence to support a verdict was
stated in People v. Towler (1982) 31 Cal. 3d 105, 117–
119:
“The recent cases of Jackson v. Virginia (1979)
443 U.S. 307 [61 L.Ed.2d 560, 99 S.Ct. 2781] and
People v. Johnson (1980) 26 Cal. 3d 557 [162
Cal.Rprt. 431, 606 P.2d 738], refine the standard of
review which governs our consideration of the
sufficiency of the evidence contention on this
appeal. In Jackson, the United States Supreme Court
held that ‘the critical inquiry on review of the
sufficiency of evidence to support a criminal
conviction [is] to determine whether the record
evidence could reasonably support a finding of
guilty beyond a reasonable doubt.’ (443 U.S. at p.
318 [61 L.Ed.2d at p. 573].) The Jackson court went
on to explain that ‘this inquiry does not require a
court to ask whether it believes that the evidence
at the trial established guilt beyond a reasonable
doubt.’ [Citation] Instead the relevant question
is whether, after reviewing the evidence in the
light most favorable to the prosecution, any
rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt.’ (Id. at pp. 318–319 [61 L.Ed.2d at p.
573].)
“In Johnson, our court found California’s
traditional sufficiency of the evidence standard of
review consistent with Jackson, emphasizing that in
passing upon such a claim ‘a court must review the
21

 whole record in the light most favorable to the
judgment below to determine whether it discloses
substantial evidence – that is, evidence which is
reasonable, credible and of solid value – such that
a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.’” (26 Cal.3d at
p. 578.)
The court in Towler later noted:
“Whether the evidence presented at trial is
direct or circumstantial, under Jackson and Johnson
the relevant inquiry on appeal remains whether any
reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. (See,
e.g. People v. Cordova (1979) 97 Cal.App.3d 665,
669–670; People v. Young (1981) 120 Cal.App. 3d 683,
693–694.)” (Id. at p. 118.)
On review the appellate court must view the record
in a light most favorable to the People, as the party
which prevailed below and draw reasonable inferences from
the evidence presented to the trial court in support of
its judgment.

(See, People v. Marshall (1997) 15 Cal.4th

1, 34; People v. Vann (1974) 12 Cal.3d 220, 225.)
However, in People v. Johnson, supra, 26 Cal.3d 557, it
was noted that while an appellate court must view the
evidence in a light most favorable to the respondent and
presume in support of the judgment the existence of every
fact a trier could reasonably deduce from the evidence,
this review is not limited only to evidence favorable to
the respondent.

The question as to the sufficiency of

the evidence must be judged in light of the entire record

22

 and whether the evidence on each essential element is
substantial.

It is not enough for respondent to simply

point to some evidence supporting the finding.

(Id. at

pp. 576–577.)
A defendant’s convictions based upon insufficient
evidence where no reasonable trier of fact should have
found defendant guilty of the charged offenses violates
his rights to due process under the United States
Constitution.

(See Jackson v. Virginia (1979) 433 U.S.

307, 318 [61 L.Ed.2d 560, 99 S.Ct. 2761].)

The evidence

in appellant’s case fails to establish he violated any
California statute and further, his actions were
protected by The Communications Decency Act (CDA), the
controlling federal statute.

While the record is

generally reviewed in a light most favorable to the
judgment below, the evidence in appellant’s case to be
reviewed by this court does not support the verdicts.
(Id. at p. 318 [61 L.Ed.2d at p. 573].)
C.

Discussion.
The Internet is one of the most diverse forums for

individual communication ever invented.

In its short

life the Internet has moved from the province of
technical specialists and educational institutions into a

23

 powerful force in the everyday lives of most Americans,
allowing them to share, discuss, and develop ideas in
their political, professional, and personal lives.

As

the U.S. Supreme Court observed 15 years ago, “It is no
exaggeration to conclude that the content on the Internet
is as diverse as human thought.”

(Reno v. American Civil

Liberties Union (1997) 521 U.S. 844, 852.)

Not

surprisingly, the scope and depth of legal protections
for Internet service providers played a direct role in
whether and how speech will develop on line.
1.

Communications Decency Act.
In 1996, Congress passed section 230 of the

Communications Decency Act (“CDA 230”) or (“Section 230”)
taking a deliberate, affirmative step to protect speech
online by broadly shielding Internet service providers
from responsibility for materials supplied by their
users.

Congress recognized that immunizing interactive

computer services from liability for hosting diverse
content in turn encourages the development and
availability of innovative online services that foster
free speech.

Because it encourages both large and small

intermediaries to open forums for discussion, section 230

24

 has been critical in protecting and expanding the
Internet as a forum for free speech.
The Communications Decency Act of 1996 provides:
“No provider or user of an interactive computer
service shall be treated as a publisher or speaker
of any information provided by another information
content provider.” (47 U.S.C. section 230,
subdivision (c)(1).)
The Communications Decency Act was enacted by
Congress specifically to prevent actions against internet
service providers that would constitute intrusive
regulation on free speech.

(Zeran v. America Online,

Inc. (4th Cir.1997) 129 F.3d 327, 330.)

The law

specifically forbids actions against interactive computer
services and access software providers based on content
they displayed that was created by or originated by third
parties.

The law does not prevent states from enforcing

criminal statutes consistent with the statute.
U.S.C. section 230, subdivision (e)(3).)

(47

Nor does it

prevent enforcement of federal criminal statutes.

The

Act does preclude enforcement of state actions that are
inconsistent.

(Subdivision (e)(1), (3).)

In this case, the People seek to chip away at the
clear protections provided by the Communications Decency
Act.

The People claim the statute’s protection did not

25

 apply to Yougotposted because Yougotposted administered
the website and possessed the authority to pick and
choose which information was posted.

Here the People’s

reliance on speculation and conjecture fails to strip
appellant of the statute’s immunity.

If the People’s

arguments are accepted, the approach would provide an
avenue for other litigants to end-run the bright-line
protections provided by the statute, jeopardizing service
providers and undermining speech in the process.

This

amounts to bad policy.
2.

Penal Code section 530.5.
Penal Code section 530.5, subdivision (f) provides:
“An interactive computer service or access software
provider as defined in subsection (f) of Section 230
of Title 47 of the United States Code (The
Communications Decency Act) shall not be liable
under this section unless the service or provider
acquires, transfer, sells, conveys or retains
possession of personal information with the intent
to defraud.”
As a result, absent an intent to defraud, appellant,

an internet service provider and access software
provider, cannot be held liable under Section 530.5.
3.
Appellant is not Liable Under Penal Code Section
530.5 Because he is (1) an Interactive Computer Service
Provider and (2) an Access Software Provider as Defined
in the Communications Decency Act and There was no Fraud.

26

 In appellant’s case the People produced no evidence
supporting their belated claim that appellant possessed
any personal information with the intent to defraud.
California jury instructions describe fraud as having
deceived another person in order to cause a loss of money
or something of value or damages to a legal, financial or
property right.

(See CALCRIM 2041.)

The People’s

belated claim that the payments he obtained through
“changemyreputation.com” were obtained by fraud because
the victims were unaware appellant owned both websites.
There are two problems with this argument made below.
First, the link to “changemyreputation.com” was published
on “yougotposted.com.”

There was no attempt or evidence

suggesting appellant was hiding that the sites were
connected.

For example, victim “Alaina” testified that

to her it was “obvious” that the same person was behind
both sites. (4RT pp. 305-306.) Additionally, who the
victims believed the payment was going to is of no
significance.

They were paying to have the pictures

removed, not because they were “deceived”.

There was

simply no deception in this case.
Under The Communications Decency Act, a party is
immune from liability if they are an interactive computer

27

 or service provider or an access software provider.

The

act defines “interactive computer service provider 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.”
subdivision (f)(2).)

(Id. at

An access software provider “is

defined as, a provider of software (including client or
server software, or enabling tools that do any one or
more of the following: (A) filter, screen, allow or
disallow contents; (B) pick, choose, analyze or digest
contents; or (C) transmit, receive, display, forward,
cache, search, organize, reorganize, or translate
content.”

(Subdivision (f)(4).)

The evidence presented

at trial established appellant was an interactive
computer service provider as well as an access software
provider.

The site he established performed all of the

functions described above.
The protections of the Communications Decency Act
immunized providers of “interactive computer services”
and their users from causes of action asserted by persons

28

 alleging harm caused by content supplied by others.

(See

Fair Housing Counsel of San Fernando Valley v.
Roomates.com, LLC (9th Cir. 2008) 521 F.3d 1157, 1179.)
There the court noted:
[CDA 230] provides a safe haven for interactive
computer service providers by removing them from the
traditional liabilities attached to speakers and
publishers. (Id., citing Zeran v. America Online,
Inc., supra, 129 F.3d 327, 330.)
Information content providers do not receive
immunity under the CDA.

They are defined 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.”

(Subdivision (f)(3).)

The People argued below

that appellant was an information content provider
because he received the images submitted by third parties
and elected whether or not to post them to the website.
This was not disputed at trial.

However, the courts have

consistently held that engaging in this type of a
selection process does not render a party an “information
content provider.”

It is well settled that operators of

websites and providers of interactive computer services
such as appellant are not information content providers.

29

 (See Universal Communications Systems Inc. v. Lycos, Inc.
(1st Cir. 2007) 478 F.3d 413, 419.)
The Fourth Circuit has made it clear that a lawsuit
seeking to hold the service provider liable for its
exercise of a publisher’s traditional editorial
functions-such as deciding whether to publish, withdraw,
postpone or alter content-are barred.

(Zeran v. America

Online Inc., supra, at p. 330.)
In Zeran, a third party made numerous posts to an
America Online message board falsely suggesting that the
plaintiff, Mr. Zeran, was selling t-shirts and other
merchandise celebrating the bombing of the Oaklahoma City
Federal Court Building.

The post included Zeran’s home

phone number and resulted in Zeran receiving abusive
phone calls which threatened him with violence and death.
These calls were often received as little as two minutes
apart.

America Online was specifically put on notice

about the postings and they declined to remove them.
(Id. at p. 329.)
It was held America Online was not liable under The
Communications Decency Act even though they were put on
notice about the contents of the posts and deliberately
took no action to remove them from the message board

30

 system they had operated.

The court held that actively

deciding to leave the third-party content on the website
was a publishing decision and did not change their status
as an interactive service provider.
Similarly, in Batzel v. Smith (9th Cir.2003) 33 F.3d
1018, the operator of a listing service/on line bulletin
board selected and posted a letter that had been
submitted by a third party stating that an attorney in
Northern California bragged that she was the
granddaughter of Adolf Hitler’s “right hand man” Heinrich
Himmler, and because of this the attorney possessed many
valuable stolen paintings which rightfully belonged to
people who died in the Holocaust.

The Ninth Circuit

specifically analyzed whether the operator of a list
service became a content provider as opposed to an
interactive service provider by screening, editing and
selecting the letter submitted by a third party.

The

court noted:
The pertinent question becomes whether Smith was the
sole content provider, or whether Cremars (the
website operator) can also be considered to have
‘created’ or ‘developed’ Smith’s email message
forwarded to the listserve…Cremars did not create
Smith’s email… Nor did Cremars’ minor alterations to
Smith’s email prior to its posting or his choice to
publish the email (while rejecting other emails for
inclusion in the listserve) rise to the level of
‘development.’” (Id. at p. 1031.)
31

 In 2009, the Ninth Circuit noted in Barnes v. Yahoo!
Inc. (9th Cir. 2009) 570 F.3d 1096, 1102, that
“reviewing, editing and deciding whether to publish or
withdraw from publication third party content” does not
render a party a content provider and outside the scope
of The Communications Decency Act.

In Barnes, an unhappy

former boyfriend of the plaintiff created a profile for
her on Yahoo! wherein he posted nude pictures, taken
without her permission, and posted open solicitations for
sex.

He also posted her real and electronic addresses as

well as the phone number for her place of employment.
She was then inundated with disturbing, harassing
contacts from strangers.

Yahoo! was specifically and

repeatedly put on notice and never took any action to
remove the offensive material.

The court found the

refusal to remove material was well within the scope of
The Communications Decency Act.

The court cited its

earlier decision in Batzel noting that, “it is immaterial
whether this… comes in the form of deciding what to
publish in the first place or what to remove among the
published material.”

(Batzel, supra, 333 F.3d at p.

1032.)

32

 In Calofano v. Metrosplash.com Inc. (9th Cir.2003)
339 F.3d 1119, the court addressed the question of
whether a website becomes a content provider when they
require third party users to answer specific questions in
order to use the site.

In that case a third party

created a profile on an internet dating site for a woman
without her permission.

The third party posted pictures

of the woman that were readily available on line.

The

third party filled out statistical information required
by the website and additionally posted the woman’s home
address as well as her email address and telephone
number.

The third party then wrote and posted open ended

statements suggesting the woman sought to be sexually
dominated and suggested she was promiscuous.

She then

received a number of frightening and explicit contacts
from strangers.

The Ninth Circuit specifically rejected

the contention the dating website was a content provider
because it required users to answer prepopulated
questions.

While the questionnaire on the website

facilitated expression of information by individual
users, the selection of the content was less exclusively
to the user.

(Id. at p. 1124.)

As in appellant’s case

there is nothing inherently wrong with asking for this

33

 information.

Simply asking for statistical information

is not actionable.
More recently, in Jones v. Dirty World Entertainment
Recordings, LLC (6th Cir.2014) 755 F.3d 398, a website
known as “TheDirty.com” allowed people to post
disparaging and defamatory pictures, videos and comments
about other people.

In this particular case “TheDirty”

was sued by a woman who was both a high school teacher
and a cheerleader for the Cincinnati Bengals National
Football League team.

“TheDirty” chose to post

submissions by third parties suggesting she had engaged
in sex acts with the entire football team and that she
had numerous sexually transmitted diseases.

The post

even went so far as to specify the high school where she
taught.

All of this subjected her to unwanted contacts,

shame, ridicule and disgrace.
Initially, the U. S. District Court found the
Communications Decency Act did not apply.

The court

reasoned that the website by its nature had intentionally
encouraged and invited actionable third party postings
and therefore took part in developing content.

However,

the Sixth Circuit overruled the lower court’s finding and
found that the Communications Decency Act did apply.

34

The

 court held that the lower court was wrong in finding
“TheDirty” was an information content provider because it
had encouraged actionable third party postings.

The

court stated that “an encouragement test would inflate
the meaning of ‘development’ to the point of eclipsing
the immunity from the publisher liability that Congress
established.”

(Id. at p. 414.)

The court held “TheDirty” could not be deemed an
information content provider.

The fact the website

encouraged and solicited actionable material, the fact
that the website’s operator ratified and adopted the
actionable material by adding his own commentary did not
make the website operator a content provider.

It was

also noteworthy that in this case the court noted that
the “TheDirty” required third party users to submit a
title and category for their submissions which included a
location by naming either a city or college.

The third

party user was specifically instructed by the website to
specify “who, what, when, where, why.”

(Id. at p. 403.)

The plain text of CDA 230 makes clear that Congress
created this immunity to limit the impact of Federal or
State regulation imposed on the Internet either through
statute or through the application of common law causes

35

 of action.

(See, e.g., 47 U.S.C. Section 230,

subdivision (a)(4).)

The Internet and other interactive

computer services “have flourished, to the benefit of all
Americans, with a minimum of Government regulation”; (Id.
section 230, subdivision (b)(2)) “[i]t is the policy of
the United States” to minimize Internet regulation).
This policy of regulatory forbearance squarely applies to
any liability imposed based on the exercise of
traditional editorial functions such as to publish or
withdraw third party content.

Such liability was, “for

Congress, simply another form of intrusive Government
regulation of speech.”

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

Congress thus recognized in section 230 what the U.S.
Supreme Court later confirmed in extending the highest
level of First Amendment protection to the Internet:
“governmental regulation of the content of speech is
more likely to interfere with the free exchange of
ideas then to encourage it.” (Reno, supra, 521 U.S.
at p. 885, see also Batzel v. Smith, supra, 333 F.3d
at p. 1027, (“Congress wanted to encourage the
unfettered and unregulated development of free
speech on the Internet, and to promote the
development of the E-commerce.”).
The Communication Decency Act (CDA 230) itself
provides:
“it is the policy of the United States … to
encourage the development of technologies which
maximize user control over what information is
36

 received by individuals, families and schools who
use the Internet and other interactive computer
services.” And “to preserve the vibrant and
competitive free market that presently exists for
the Internet and other interactive computer
services, unfettered by Federal or State
regulation.” (47 U.S.C. Section 230, subdivision
(b)(2), (3).)
Congress is concerned that imposing liability on
providers who host thousands or even millions of messages
might lead to overreaching moderation or outright
censorship is even more pressing today.

When the

Communications Decency Act was passed approximately 40
million people used the Internet worldwide.

Commercial

online services in the United States at that time had
almost 12 million individual subscribers.
521 U.S. at p. 850.)

(Reno, supra,

Today the number of worldwide

internet users exceeds two billion.

(International

Telecommunication Union [UN Agency for information and
communications technology], issue 5 (January, 2011).)
The difficulties related to policing third party content
has grown exponentially along with the number of people
now regularly speaking online.
By its plain language, section 230 creates a federal
immunity to any cause of action that would make a service
provider liable for information originating with thirdparty user of the service.

(Zeran, supra, 129 F.3d at p.
37

 330.)

The courts have consistently applied its immunity

broadly, not sparingly, to encourage free speech on the
Internet.

(See, e.g. Nemet Chevrolet, Ltd., v.

Consumeraffairs.com, Inc. (4th Cir.2009) 591 F.3d 250,
254.)

CDA 230 clearly precludes any cause of action

brought against a person under any state or local law
that is inconsistent with the section.

(See Carofano v.

Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119,
1125.)
Based on the above and based on evidence produced at
trial appellant is an interactive computer service
provider who took no action that amounted to developing
or creating the content.

Appellant’s convictions of

identity theft are in direct conflict with the first
amendment and the Communications Decency Act.

Both the

Communications Decency Act and Penal Code 530.5(f)
specifically immunize him from prosecution.
4.
The Evidence Presented at Trial Fails to Establish
Appellant’s Guilt for Identify Theft Not Protected by the
Communications Decency Act.
There was also some argument below that appellant
was guilty of identity theft because he willfully
obtained someone else’s personal identifying information
and used that information for an unlawful purpose and

38

 that the person used the information without the consent
of the person whose identifying information he was using.
This contention is not sustainable.
The evidence does not support the conclusion
appellant willfully obtained any personal identifying
information of the alleged victims.

Willful implies

simply a willingness to commit the act, or to make the
omission referred to.

It does not require any intent to

violate the law, or injure another, or to acquire any
advantage.

The court In Re Rolando S. (2011) 197

Cal.App. 4th 936 addressed the question of willfully
obtaining the identifying information of another.

In

Rolando S. the victim had used his ex-girlfriend’s
Facebook password to access her personal Facebook page
and post obscene messages and comments purporting to be
the victim herself.
The court found that by receiving a text message
from the victim wherein she gave him the password and
choosing to save/remember that password the defendant had
willfully obtained the password.

In appellant’s case the

third parties who submitted the material, ex-boyfriends
etc. and/or personal enemies, who posted the personal
information on the website would be akin to the defendant

39

 in Rolando S.

Appellant’s position is not the same.

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

The statutes

have not been used to prosecute a website host operator
for felonies or for crimes based on the actions of a
third party.

The People’s argument below wrongly

suggests the law should be extended to criminalize the
business practice of merely hosting a website.
Aside from much speculation, the People’s argument
was that appellant exercised his editorial discretion
regarding the placement of information that was allegedly
personal identifying information of another person to be
used for an unlawful purpose.

No such unlawful purpose

has been established on this record.

The protections

under Section 230 apply categorically and without any
inquiry into the motivations of the provider and
regardless of the provider’s motive or mental state in
making his editorial decisions.

(See e.g. Green v.

America Online (3d Cir.2003) 318 F.3d 465, 470-471.)
It is also interesting to note that Penal Code
section 647, subdivision (j)(4) has been recently enacted
to provide:
Every person who commits any of the following acts
is guilty of a misdemeanor:...Any person who
40

 photographs or records by any means the intimate
body parts or parts of another identifiable person,
under circumstances where the parties agree or
understand that the image shall remain private, and
the person subsequently distributes the image taken,
with the intent to cause serious injury or emotional
distress, and the depicted person suffers serious
emotional distress.
This law addresses people such as the defendant in
Rolando S. and the third parties who posted the photos to
appellant’s website.

Nothing in this statute suggests

applicability to individuals engaged in the business of
operating the website.

Appellant’s conduct simply does

not constitute identity theft within the meaning of the
statute.
5.
Appellant Did Not Use the Identifying Information
for an Unlawful Purpose.
There was some suggestion below that appellant used
the personal identifying information for the unlawful
purpose of fraud or harassment in violation of Penal Code
section 653(m) or for the purpose of committing the civil
tort of “invasions of privacy”.
Penal Code section 653, subdivision (m), provides:
Every person who, with intent to annoy, telephones
or makes contact by means of electronic
communication device with another and addresses to
or about the other person any obscene language . .
.is guilty of a misdemeanor.

41

 In appellant’s case there was absolutely no evidence
appellant contacted any of the alleged victims.
directed no obscene language to them.

He

All these acts

were undertaken by third parties unknown to appellant.
Section 653 applies to third parties who seek out the
website of their own free will, then decide to take down
the information on the website and make the additional
decision to direct obscene messages to particular
individuals.

Here, there was absolutely no contact by

the website operator, appellant.

The evidence does not

support appellant’s use of the identifying information
for an unlawful purpose.
Similarly, appellant did not use the personal
identifying information for the purpose of invading the
victim’s privacy or any fraudulent purpose.

Under

California law the tort of invasions of privacy requires:
(1) the plaintiff had a reasonable expectation of
privacy in specific information.
(2) the defendant intentionally intruded into that
matter.
(3) the defendant’s intrusion would be highly
offensive to a reasonable person.
(4) the plaintiff was harmed.
(5) the defendant’s contact was a substantial factor
in causing the harm.

42

 In deciding whether the plaintiff had a reasonable
expectation of privacy in a particular act, the tort
requires consideration of:
(1) the identity of the defendant.
(2) the extent to which other persons had access to
or could see or hear the plaintiff.
(3) the means by which the intrusion occurred.
(See CACI 1800).
As noted above, the unlawful purpose as to invasion
of privacy may be attributed to the third parties who
submitted the photographs to appellant’s website, but not
to appellant.
victims.

Appellant did not know any of the alleged

Third parties sought out his website and chose

to use it to post the photos without permission.
third parties acted of their own free will.

These

In fact,

appellant could not tell from the submissions whether the
people submitting the photos were submitting photos of
themselves or other people without their permission.
Another question is whether it was established each
of the victims had a reasonable expectation of privacy in
the photos.

Most, if not all of the alleged victims

admitted they knowingly took or allowed to be taken the
photos which they then in turn shared with other people.
It has been noted that transmissions over the Internet

43

 are not reasonably expected to be private.

(See United

States v. Lifshitz (2d Cir. 2004) 369 F.3d 173; Four Navy
Seals v. Associated Press (2005) 413 F.Sup. 1136, 1143.)
In this case there was no evidence the victims retained
their right to the images once they willingly distributed
them over the Internet or gave them to third parties.
Under any of the above theories the People’s case
must fail.

The evidence fails to establish appellant

falls outside the protections of The Communications
Decency Act or that the identifying information was
posted for any unlawful purpose not otherwise protected.
There in no “good faith” requirement written into
the blanket protections of 47 U.S.C. Section 230,
subdivisions (c)(1).

Such a requirement would be

antithetical to the broad protections provided by the
statute.

Any use of the information provided by third

parties is not actionable as to appellant.

As an

interactive service provider appellant falls squarely
within the statute’s protections.

44

 ARGUMENT II
THE EVIDENCE FAILS TO SUPPORT APPELLANT’S CONVICTIONS FOR
EXTORTION.
A.

Introduction.
The People argued that appellant used the posting of

the photographs on the website to illegally obtain money
from those whose photos were posted and to have the
photos removed from the “Yougotposted” website.

The

People argued that appellant threatened to injure the
victims or “expose their secrets” by publishing the
images on the website.

As the CDA provides, interactive

computer service providers and access software providers
are under no legal obligation to remove postings
submitted to their website by third parties, even those
postings that are negative in nature.

Appellant was

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

He merely offered a service to remove

the photos and, by offering such a service, he is
engaging in standard business practice and not extortion.
B.

The Law.
In general, to be guilty of the crime of extortion a

person must (1) threaten to unlawfully injury another
person or threaten to expose a secret about another
person or to expose them to disgrace and (2) when making
45

 the threat, the defendant intended to use the fear
engendered by that threat to obtain the person’s consent
to give the defendant money and (3) as a result of the
threat the other person gave the defendant money.

(Penal

Code sections 519, 520.)
In order to establish extortion, the wrongful use of
force or fear must be the operating or controlling cause
compelling the victim’s consent to surrender the thing to
the extortionist.
4th 1159, 1171.)

(See Chan v. Lund (2010) 188 Cal.App.
The “secret” referred to in the

extortion statute is the 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 and must affect the
threatened person in some way so unfavorable to the
reputation or to some other interest of the threatened
person that the threatened exposure would likely to
induce a person through fear to pay money or property for
the purpose of avoiding the exposure.

(Cross v. Cooper

(2011) 197 Cal.App. 4th 357, 386, 387.)

46

 C.

Discussion.
Penal Code section 519 describes fear used to extort

and enumerates threats to:
1.

Do an unlawful injury to the person or property

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

To accuse the individual threatened or any

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

To expose, or to impute to him or them any

deformity, disgrace or crime, and
4.

To expose any secret affecting him or them.

In this case the People proceeded on the theory that
the third-party postings constituted exposure of a secret
affecting the persons portrayed in the photos.

The

initial reaction is that appellant’s operation of the
website and posting information provided solely by third
parties simply does not constitute a threat to expose any
secret as to the other persons because the alleged secret
(photos) was already in the public domain and had been
provided by third parties unaccompanied by any demand for
payment.

In this case there is absolutely no evidence

any request was made through either “Yougotposted” or
“changemyreputation.com” before the photos had been
submitted by the third parties.

47

In this case appellant

 merely provided a means whereby, for a fee, information
already legally posted could be removed.
The question of extortion as it relates to Internet
service providers was recently discussed in Levitt v.
Yelp!, Inc. (9th Cir. 9/2/14) __ F.3d ___.

The court

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

In Yelp!,

business owners claimed they often received less than
favorable reviews from customers that were posted on
Yelp!

They would be then contacted by representatives of

Yelp! who asked them to pay for advertising with implied
assurances that the result would be more positive
reviews, fewer negative reviews and/or the listing of
reviews in such an order as to place the more favorable
reviews at the top.
In Yelp!, several of the businesses claimed that if
the solicitation for advertising was rejected, Yelp!
immediately would remove positive reviews and elevate the
negative reviews.

It was also alleged that Yelp! was

fabricating negative reviews that made disparaging and

48

 untrue claims about the businesses.

It was also alleged

Yelp! manipulated the rating system to give the nonadvertising companies poor ratings.

Numerous business

owners claimed that the Yelp! practice was for sales
representatives to advise them that if they decided to
pay for advertising they would help hide the negative
reviews and adjust the rating to favor the business.
The Ninth Circuit discussed the Hobbs Act (a civil
extortion statute) and California Penal Code sections 519
and 520, concluding that the statutes are virtually the
same.

The court concluded that Yelp!, as an internet

service provider, was not engaging in extortion.

The

court noted:
In sum, to state a claim of economic extortion under
both Federal and California law, the litigant must
demonstrate either that he had a pre-existing right
to be free from the threatened harm, or that the
defendant had no right to seek payment for the
service offered. Any less stringent standard would
transform a wide variety of legally acceptable
business dealings into extortion.
The court found the plaintiffs had no pre-existing
right to a positive review and that Yelp! was in no way
obligated to refrain from manipulating reviews or
creating negative ones.

Yelp! was simply offering a

service when it offered to remove negative reviews from
its web page and that the offering of that service in
49

 exchange for money amounted to a legitimate business
practice.

(Id.)

In the present case, appellant, as an interactive
computer service provider was under no legal obligation
to remove the postings submitted to the website by third
parties, even when those postings are negative in nature.
As in the above cited cases, Yelp!, Yahoo!, AOL and the
dating website in the Carofano case, as well as
“TheDirty.com” case, appellant could legally decline to
remove any offending content from his website.

Offering

a fast, efficient removal service through the site
“changemyreputation.com” amounted to a legal practice,
akin to the practices approved in Yelp!.
extortion occurred.
content for money.

No crime of

Yelp! offered to remove negative
They were under no obligation to

remove those negative reviews and they offered the
additional service in exchange for a fee.

This is a

business practice, not extortion.
Extortion is a specific intent crime.
Hesslink (1985) 167 Cal.App. 3d 781, 788.)

(People v.
To sustain a

conviction for extortion the People must have proved that
the defendant acted with the specific intent to:

50

 (1) threaten to unlawfully injure another person; or
threaten to expose a secret about another person; or
to expose them to disgrace.
(2) when making the threat the defendant intended to
use fear to obtain the person’s consent to give them
the money, and
(3) as a result of the threat the other person gave
the defendant money. (CALCRIM 1830.)
In this case there was no evidence that appellant
threatened to expose a secret or disgrace of any alleged
victim.

First, appellant never threatened the alleged

victim and, second, there could be no threat to expose a
secret or disgrace when that very secret or disgrace has
already been exposed to the world.

In this case there is

no threat and therefore no extortion.

Appellant’s only

interaction with those whose photos were posted was
initiated by those people who requested he provide the
additional service of removing their photos from the
website.

No threats were made, either direct or implied.

Appellant never sought out or contacted any of the
victims.

He took no affirmative action by word nor did

he “threaten”.
Finally, extortion convictions cannot be upheld
where the alleged secret or disgrace has already been
exposed.

Under the Penal Code the extortionist must

threaten to expose a secret or disgrace.

51

This would

 impliedly mean that the secret or disgrace would be at
some future time exposed unless the extortionist is paid
a sum to keep that secret unexposed.

In the present case

it was undisputed the alleged victims received no prior
notice, warning or threat that the pictures were going to
be posted on any website.

In fact, virtually all had put

the photos over the internet by their own act of sending
them to ex-boyfriends or others.

When the victims were

notified of the posting on appellant’s website, the
images had already been accessible to anyone with a
computer and the inclination to check out the website.
These acts, under the plain meaning of the statute,
did not constitute extortion.

It has been held that

information publicly available on websites “to any one
interested in knowing about it” does not constitute a
secret for purposes of extortion.

(Cross v. Cooper

(2011) 197 Cal.App. 4th 357, 387-388.)

In Cross, tenants

emailed their landlord and threatened to tell prospective
purchasers of the property that a registered sex offender
lived nearby if the landlord did not agree to allow them
to live rent free for a month.

The Court of Appeal found

that as a matter of law, this could not constitute a
threat to expose a secret for the purpose of extortion

52

 because the information that the offender lived in the
neighborhood is publicly available on the website to
anyone who is interested in knowing about it.
387.)

(Id. at p.

As in appellant’s case, the images were already

publicly available to anyone interested in knowing about
them.
The plain language of the statute and the case law
demonstrates appellant did not threaten to expose any
secret or disgrace within the meaning of the statute.
The fact that he advertised a conduit through which
already-exposed information could be removed does not
support any charge of extortion.

As in Yelp!, it is a

business practice that is plainly not extortion when
there has been no threat to expose a secret or disgrace
already exposed.

53

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

Introduction.
The trial court instructed the jury that an unlawful

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

In relation to this

theory, the court instructed the jury, pursuant to the
People’s request, with CACI 1800 and 1801, intrusion into
private affairs and public disclosure of private facts,
respectively.

(2CT pp. 387-388.)

In each case the

instruction was prefaced with the following statement by
the court:
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 . . . .
The court then, as to each, instructed that the
finding could be based on private affairs or public
disclosure of private facts.

(2CT 387-388.)

54

 Each of the requested CACI instructions was based
upon civil liability and actions arising from obligations
under civil law.

The trial court effectively elevated

these alleged possible civil wrongs into an unlawful
(criminal) purpose to become crucial elements of Penal
Code section 653m(a).

In turn, these “elements” of the

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

Appellant believes giving both of

these instructions was error as 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.

Here the trial court wrongly allowed the use of

some civil wrong to be elevated by the jury into a
criminal wrong-an unlawful purpose.

The error was

prejudicial, particularly in light of the inability to
determine whether jurors relied on this theory in support
of their convictions for the identity theft counts.
B.

The Law.
It is well settled that the trial court functions as

both a neutral arbiter between two contesting parties and
the jury’s guide to the law.

This requires the court

instruct the jury on the law applicable to each issue.

55

 It is also settled that in a criminal case, even in the
absence of a request, the court must instruct the jury on
the general principles of law relevant to the issues
raised by the evidence.

The general principles are those

closely and openly connected to the facts before the jury
and which are necessary for the jury’s understanding of
the case.

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

716; People v. St. Martin (1970) 1 Cal.3d, 524, 531.)
In general, a determination of whether there is
sufficient evidence to support a particular instruction
is a question of law and subject to independent review.
(People v. Barnett (1998) 17 Cal.4th 1044, 1045.)

The

instructional errors are viewed de novo and without
deference.

(People v. Waidlaw (2000) 22 Cal.4th 690,

733; People v. Shaw (2002) 97 Cal.App. 4th 833, 838.)

In

this case the trial court gave instructions which
substantially lowered the People’s burden of proof by
allowing them to elevate what may or may not have been
some type of civil liability into a crucial element of a
criminal offense finding.

It so infused a trial with

unfairness as to deny appellant his right to due process.
(Estelle v. Maguire (1991) 502 U.S. 62, 75.)

56

 C.

Discussion.
It is well established that there is a substantial

difference between civil and criminal cases.
different burden of proof.

Each has a

In a criminal case, the

prosecution has the burden of proving each element of the
charged crime beyond a reasonable doubt.
(2004) 33 Cal.4th 1158, 1208.)

(People v. Cole

In order to overcome the

presumption of innocence, the prosecution must prove the
defendant guilty beyond a reasonable doubt.
It is error for the trial court to give any
instruction to the jury in a criminal case that shifts
the burden of proof to the defendant.

(See People v.

Banks (1976) 67 Cal.App. 3d 379, 383-384; Mullaney v.
Wilbur (1975) 421 U.S. 684, 704 [95 S. Court 1881,
1892].)

The current instructions given by the court were

based on their applicability to civil cases.

In such

cases private parties are suing one another, usually
seeking monetary damages.
is much less stringent.

The attendant burden of proof
For example, in a civil lawsuit

involving self-defense or the defense of another, the
defense of self-defense in response to a claim of assault
is what is generally referred to as an “affirmative
defense.”

As an affirmative defense, it is the

57

 defendant’s burden to prove facts supporting the
affirmative defense by a preponderance of the evidence.
(See Bartosh v. Banning (1967) 251 Cal.App. 3d 378, 386.)
In this case the court instructed the jury that they
could use either intrusion into private affairs as
described under civil law or public disclosure of private
facts also as described in civil law to be the equivalent
of an unlawful (criminal) purpose required to establish
elements of the crime of identity theft.

Both of these

theories were strongly argued by the People to support
the identity theft counts.

As noted, had appellant been

engaged in the conduct described in either CACI 1800 or
1801, the result might have been some undetermined civil
liability, but not criminal liability.

This is without

any discussion of protected actions under the CDA.

The

use of elements of civil wrongs to establish criminal
liability was error.
The People must show beyond a reasonable doubt that
the erroneous instructions did not impact the result.
(Chapman v. California (1967) 386 U.S. 18; see also
People v. Flood (1999) 18 Cal.4th 470, 502-503.)

Chapman

holds that a violation of most federal constitutional
rights requires reversal unless the prosecution can

58

 establish beyond a reasonable doubt that the violation
did not affect the result.

Under this standard the

question becomes whether there exists a reasonable
possibility a more favorable outcome would have resulted
absent the error.
Even under the standard of People v. Watson (1956)
46 Cal.2d 818, the error here was prejudicial.

After

examination of the entire record, it is reasonably
probable appellant would have obtained a more favorable
outcome as to the identity theft counts had the jury been
properly instructed. Reasonably probable does not mean
appellant must establish that it is more likely than not
the error affected the outcome of the case.

Rather,

probable in this context does not mean more than a 50%
chance but merely a reasonable chance, more than an
abstract possibility.

(College Hospital Inc. v. Superior

Court(1994) 8 Cal.4th 704, 715.)

At a minimum, appellant

has established that the probabilities of prejudice and
harmlessness are equally balanced and under Watson this
establishes a miscarriage of justice has occurred.
at p. 837.)

59

(Id.

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

Respectfully submitted,

/s/Patrick J. Hennessey, Jr.
PATRICK J. HENNESSEY, JR.

60

 CERTIFICATION OF WORD COUNT
People v. Bollaert
I, Patrick J. Hennessey, Jr., hereby certify that
according to the computer program used to prepare this
document, Appellant’s Opening Brief contains 10,900
words.
I declare under penalty of perjury under the laws of
the State of California that the foregoing is true and
correct.

Executed this 23d of October, 2015, in San

Diego, California.

/s/Patrick J. Hennessey, Jr.
PATRICK J. HENNESSEY, JR.
Attorney for Defendant

61

 PROOF OF SERVICE BY MAIL/ELECTRONIC SERVICE SUBMISSION
I, the undersigned, declare that: I am over the age of eighteen years and not a
party to the action; I am employed in the County of San Diego, California, within
which county the subject mailing occurred; my business address is 2356 Moore
Street, Suite 201, San Diego, California; I am familiar with this firm's practice for
collection and processing correspondence for mailing with the United States Postal
Service pursuant to which practice all correspondence will be deposited with the
United States Postal Service the same day in the ordinary course of business. I
served the following document(s):
Appellant's Opening Brief
by placing a copy thereof for each addressee named hereafter, addressed to each
such addressee, in a separate envelope, postage prepaid, sealed and deposited at
this firm's mailstation on 10/26/15 .
Kevin Bollaert
Booking #15707263
446 Alta Road, Ste. 5300
San Diego, CA 92158
San Diego Superior Court
220 West Broadway
San Diego, CA 92101
PROOF OF SERVICE BY ELECTRONIC SERVICE/SUBMISSION
CAL.RULES OF COURT, RULES 2.251(i)(I)(A)-(D) and 8.71(f)(1)(A)-(D)
I server declare I electronically served from my service address the same
referenced above document on:

Attorney General
ADIEService@doj.ca.gov

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

District Attorney
da.appellate@sdcda.org
I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.
Executed on 10/26/15.
/s/PATRICK J. HENNESSEY, JR.
PATRICK J. HENNESSEY, JR.

62