Filed 12/3/14 P. v. Moreno CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




THE PEOPLE,                                                                                  C072902

                   Plaintiff and Respondent,                                     (Super. Ct. No. 10F06494)

         v.

JOSE MORENO,

                   Defendant and Appellant.




         In this case of extreme stalking, defendant Jose Moreno burglarized his ex-
girlfriend’s home 11 times, installed spyware on her computer, intercepted her e-mail and
Internet chats, and stole numerous items, including some of great sentimental value. He
covertly installed cameras in her home, spied on her and her new boyfriend, and secretly
photographed her while she was inside her bathroom, among other locations. Convicted
of 19 felonies and two misdemeanors, defendant was sentenced to 19 years four months




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in prison and required to register as a sex offender under Penal Code section 290.006.1
On appeal, he contends there was insufficient evidence of two counts of wiretapping
(counts 14 and 15) and that he was entitled to a jury trial under Apprendi v. New Jersey
(2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) on the facts supporting discretionary
sex offender registration because its residency requirements impose additional
punishment. We find no prejudicial error and affirm.
                                           FACTS
        Tomasa Duenas met defendant through the social network My Space. They
became a couple in April 2007; she lived in Sacramento and defendant was in Berkeley.
In May 2009, defendant moved to New York to complete a master’s degree at Columbia
University. Duenas broke up with defendant in January 2010 because she could not see
the relationship going anywhere.2 They stayed in touch and had a cordial relationship.
        Around February or March, she decided to give defendant another chance. He
came to visit her at her residence in March. During that visit, without her knowledge, he
installed two spyware programs on her computer. The first, Spector Pro, recorded
computer activity such as e-mail, chats, instant messaging, and websites visited. The
second, eBlaster, e-mailed the records of the computer activity to a designated address.
The activity reports were e-mailed to defendant.
        In April, defendant insisted on coming out to help Duenas move. He gave her a
gift, a wireless Internet router. He set it up, providing the router name, East Oakland, and
the password. Duenas had Internet service through Comcast; the wireless router
connected to the modem by cable.




1   Further undesignated statutory references are to the Penal Code.
2   All further dates are to 2010 unless otherwise specified.

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       Defendant graduated in May and returned to Sacramento. He stayed with Duenas
a few days a week; the rest of the time he stayed with his family in Watsonville. On
July 16, they argued and broke up.
       On July 23, Duenas noticed her tickets to a concert were missing from her
apartment, and thought that defendant had taken them. She sent him a text message,
asking if he had a way to get in her apartment. She replaced the tickets and went to the
concert. Defendant also was at the concert, and texted her with a specific dedication
before a particular song. The police later found a photograph of Duenas’s calendar, taken
July 23, in defendant’s possession.
       A few days later, Duenas returned home from work early and found defendant in
her bedroom. She asked him to leave and he did. On July 31, Duenas met Victor Garcia.
The next day Garcia gave her a note and a music CD. She put the note in a shoe box with
other keepsakes, but later noticed the note was missing.
       On approximately August 1, Duenas went to defendant’s new apartment and made
dinner for him. She spent the night and they were intimate. The next day, defendant
went to Duenas’s and tried to initiate sex. She said no and told him that the night before
had been a mistake. Defendant persisted and Duenas gave in. On August 3, Duenas
came home and found defendant by her bed. At first, he refused to leave, saying he
wanted to talk, but he eventually left. She found his water bottle in the closet and texted
him, asking how long he had been in her closet. He asked if he could come get the bottle.
Although she said no, defendant showed up and pushed his way into her apartment.
Defendant followed her into the bedroom and kept saying “get naked” in Spanish. He
tried to pull her shorts down. She began to cry and defendant kept pulling at her shorts
until he got them off. In a demanding tone, he told her to “show me how you’re going to
give it to Victor.” She kept telling him to leave and defendant responded that if she
forced him to leave he would publish nude pictures he had of her. She said she would
sue him and he replied he had nothing to lose. Duenas spent 30 minutes in the bathroom

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crying. Defendant tried to bargain with her; if she would attend counseling to work on
her “issues,” he would leave her alone. Eventually defendant began a “rant” about how
he was sorry and his jealousy was due to his insecurities. He finally left after she told
him he had lost her forever.
       Duenas had her apartment manager change her apartment’s locks. She found the
eBlaster software on her computer and had an Apple computer technician remove it. She
also changed the password on her computer. On August 6, at the urging of friends,
Duenas reported defendant to the police, but did not ask to have charges filed.
       The stalking continued. On August 24, Duenas could not log in to her computer
because of password difficulties and discovered the eBlaster software was back on her
computer. She also noticed that her stuffed animals were rearranged and a box of
mementos was missing. Also missing were a letter requesting to be let out of her lease
and the police report she had filed. A photograph of a wedding invitation on her
refrigerator, taken that day, was later found in defendant’s possession. On August 27,
Duenas found two cameras, one hidden under her stuffed animals and the other under the
dresser. These cameras had recorded video with sound. Duenas contacted the police,
who suggested she call defendant and ask him about the cameras. He said that was “a
loaded question,” but did not deny he put them in her apartment.
       Duenas went to stay with a friend. Defendant took numerous photographs of
Duenas while she was in the bathroom at her friend’s -- apparently from immediately
outside the apartment looking in. The friend heard noises at night and asked Duenas to
leave due to concerns about safety. Duenas first relocated to a house in Folsom and then
to a house on Castro Way that had an alarm system. She did not tell her friends where
she was living. She obtained a restraining order against defendant.
       On September 26, Garcia visited her and spent the night. They were intimate on
several occasions that night and disposed of used condoms in the bathroom trash.



                                              4
Duenas had waxed her bikini line before his visit. The used wax strips and condoms
were later found in a plastic bag during a search of defendant’s residence.
       Duenas began having problems with the alarm; she could not set it. She contacted
the alarm company; the technician told her the alarm had been tampered with and the
sensors had been removed.
       On October 2, Duenas went out with Garcia to celebrate his birthday. While she
was out, the alarm was triggered and the police responded and asked Duenas to come
home. Duenas and Garcia returned to the house and Duenas gave the police a key. A
canine unit entered the house and defendant came out of the house and was arrested.
Defendant told Garcia “happy birthday” in Spanish.
       Two searches of defendant’s residence, including his computer, revealed a wealth
of evidence. Defendant had a computer file that he had labeled “stalking.” Inside were
photographs of items in Duenas’s apartment establishing on what dates defendant had
entered the apartment. Defendant had e-mailed himself detailing Duenas’s sexual
activities with Garcia and indicating that defendant had telephoned her residence once
while she and Garcia were having sex and had (somehow) observed their activity in
response to his call. The police found jewelry and other items taken from Duenas’s
apartment, as well as a lock-picking kit. Defendant had accessed the hidden cameras and
received videos from them over the Internet more than 40 times. There were numerous
intercepted e-mails and chats. Defendant had monitored and documented Duenas’s
menstrual cycle. In one document, defendant had written, “I’m proud/pleased that she is
so scared for her safety that she avoids being home especially by herself.”
       Defendant admitted he installed the spyware and cameras, photographed Duenas,
broke into her apartment on several occasions, and took some items. His defense was
that he never wanted to scare her; he just wanted to “[k]eep her company without her
knowing it.”



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                                       DISCUSSION
                                               I
                           Sufficiency of Evidence of Wiretapping
       Defendant was convicted of three counts of wiretapping (§ 631, subd. (a)). The
first count related to the installation of the eBlaster software in March. The second two,
counts 14 and 15, related to the cameras installed in late August. Defendant contends
there is insufficient evidence to sustain the convictions on counts 14 and 15 because he
did not intercept a communication sent over a wire. He concedes his conduct may have
violated the eavesdropping statute -- section 632 or section 647, subdivision (j) -- which
proscribes secretly videotaping someone in certain circumstances. He contends,
however, that we cannot modify the judgment to reflect violations of these statutes
because they are lesser related, not lesser included, offenses.
       “Subdivision (a) of section 631 prescribes criminal penalties for three distinct and
mutually independent patterns of conduct: intentional wiretapping, willfully attempting to
learn the contents or meaning of a communication in transit over a wire, and attempting
to use or communicate information obtained as a result of engaging in either of the
previous two activities.” (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192.) “In
enacting this statute, the Legislature declared in broad terms its intent ‘to protect the right
of privacy of the people of this state’ from what it perceived as ‘a serious threat to the
free exercise of personal liberties [that] cannot be tolerated in a free and civilized
society.’ (Pen. Code, § 630.) This philosophy appears to lie at the heart of virtually all
the decisions construing the Privacy Act. [Citation.]” (Ribas v. Clark (1985) 38 Cal.3d
355, 359 (Ribas).)
       At issue here is the second pattern of conduct -- willfully attempting to learn the
contents or meaning of a communication in transit over a wire. Section 631, subdivision
(a) punishes anyone “who willfully and without the consent of all parties to the
communication, or in any unauthorized manner, reads, or attempts to read, or to learn the

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contents or meaning of any message, report, or communication while the same is in
transit or passing over any wire, line, or cable, or is being sent from, or received at any
place within this state.”
       We recognize that in the usual wiretapping case, the private communication is
being transmitted by one of the parties to the communication. Such was the case in the
wiretapping count involving the eBlaster software where defendant intercepted Duenas’s
e-mail and chats. Here it was defendant who transmitted the pictures taken by the
cameras that he secretly installed. But the statute, quoted ante, does not require that the
victim actually transmit, only that the defendant intercept the communication “without
the consent of all parties” or “in any unauthorized manner.” (§ 631, subd. (a).) We
acknowledge “the broad wording and purpose of the statute.” (Ribas, supra, 38 Cal.3d at
p. 360.)
       Richard Guilleland, a computer expert and reserve police officer, testified about
the operation of the cameras defendant installed in Duenas’s apartment. Defendant
bought two Sharx cameras, web-based security cameras, designed to be accessed through
the Internet by a router. Duenas’s wireless router was able to accommodate multiple
devices including cameras. A port would be designated for each camera. Guilleland
opined the setup for the East Oakland router at ports 8150 and 8151 was consistent with
the setup for similar Sharx cameras. The camera would have to be set up within 100 feet
of the router. Defendant’s laptop computer had a bookmark named “net cam” with an IP
address identical to that of the first camera.
       Defendant had contacted Sharx customer service for help in setting up the
cameras. Sharx suggested using port 8150 and port 8151 on the IP address for the East
Oakland router (Duenas’s wireless router) to access the cameras remotely. Defendant
told Sharx he was able to access the cameras.
       Defendant’s laptop had software for monitoring cameras; several cameras could be
viewed at once. Among his “favorite” links were to “bed cam” and “floor cam” which

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were linked to ports 8150 and 8151. These sites were accessed multiple times August 24
through August 30. Each camera had a memory card that contained video files. A series
of these videos was played to the jury.
       Duenas had Internet service through Comcast. Her computer was connected
wirelessly to the router, which in turn was connected by a cable to the Comcast service
provider box. Thus, anything transmitted by Duenas’s router over the Internet was
transmitted over a “wire, line or cable.” Defendant made unauthorized use of Duenas’s
router to learn the contents of the communications he unlawfully captured using the
hidden cameras. The cameras captured both words and real time images, thus they
captured “communications,” as defendant conceded at oral argument. (See People v.
Drennan (2000) 84 Cal.App.4th 1349, 1356 [eavesdropping statute (§ 632) addresses the
interception and recording of sound-based or symbol-based communications, not still,
timed photographs without sound]; People v. Gibbons (1989) 215 Cal.App.3d 1204, 1209
[communication under eavesdropping statute covers communication by conduct].)
       In his reply brief, defendant contends that when he used the router, the camera had
already recorded and stored the images and sounds on a memory card.3 He contends the
wiretapping statute does not apply to stored communication or stored content, citing to
section 629.51, subdivision (b). That provision states: “This chapter applies to the
interceptions of wire and electronic communications. It does not apply to stored
communications or stored content.” This provision, however, does not apply to the
wiretapping statute. The chapter referred to is Chapter 1.4, Interception of Wire,
Electronic Digital Pager, or Electronic Cellular Telephone Communications. (§§ 629.50-
629.96.) The wiretapping statute, section 631, is in Chapter 1.5, Invasion of Privacy.
(§§ 630-638.)



3 At oral argument, defendant abandoned this argument, arguing instead that there was
no “interception” regardless of whether the camera images were live or stored.

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       Defendant’s installing of hidden cameras, surreptitiously recording Duenas’s
conversations and activity, transmitting those recordings over the Internet through the
unauthorized use of Duenas’s router, and viewing those videos on his own computer
encompassed more illegal acts than simply wiretapping. But his unauthorized
transmission and viewing of those videos constituted wiretapping. There was substantial
evidence to support his convictions for wiretapping in counts 14 and 15.
                                              II
                   Right to Jury Trial on Facts Supporting Registration
       At the request of both the People and Duenas, the trial court ordered defendant to
register as a sex offender under the discretionary provisions of section 290.006. The
court made extensive findings that defendant committed his offenses due to a sexual
compulsion towards the victim.
       Defendant contends that since sex offender registration now includes severe
residency restrictions, it increases the maximum sentence within the meaning of
Apprendi, supra, 530 U.S. 466 [147 L.Ed.2d 435] and a jury trial is required on the facts
used to support the order.
       A. The Law
       Section 290 requires persons convicted of certain acts to register as sex offenders.
Under section 290.006, the court may order other persons to register as sex offenders “if
the court finds at the time of conviction or sentencing that the person committed the
offenses as a result of sexual compulsion or for purposes of sexual gratification.” The
court must state its findings and reasoning on the record. (Ibid.) As our Supreme Court
has explained regarding application of the predecessor statute to section 290.006 (former
section 290, subdivision (a)(2)(E)), “the trial court must engage in a two-step process:
(1) it must find whether the offense was committed as a result of sexual compulsion or
for purposes of sexual gratification, and state the reasons for these findings; and (2) it
must state the reasons for requiring lifetime registration as a sex offender. By requiring a

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separate statement of reasons for requiring registration even if the trial court finds the
offense was committed as a result of sexual compulsion or for purposes of sexual
gratification, the statute gives the trial court discretion to weigh the reasons for and
against registration in each particular case.” (People v. Hofsheier (2006) 37 Cal.4th
1185, 1197 (Hofsheier).)
       The statute does not define “sexual compulsion.” In Hofsheier, our Supreme
Court stated a court “may require lifetime registration if it finds the crime to have a
sexual purpose.” (Hofsheier, supra, 37 Cal.4th at p. 1198.)
       In 2006, the voters enacted Proposition 86, known as Jessica's Law, which
provided in part: “Notwithstanding any other provision of law, it is unlawful for any
person for whom [sex offender] registration is required pursuant to Section 290 to reside
within 2000 feet of any public or private school, or park where children regularly gather.”
(§ 3003.5, subd. (b).)
       The issue of whether the discretionary imposition of lifetime sex offender
registration, which includes the residency restrictions of Jessica’s Law, increases the
“penalty” for the offense within the meaning of Apprendi, and requires that the facts
supporting the trial court’s imposition of the registration requirement be found true by a
jury beyond a reasonable doubt is currently pending before the California Supreme Court.
(People v. Mosley (2010) 188 Cal.App.4th 1090, review granted Jan. 26, 2011, S187965
[residency restriction is punitive and subject to Apprendi rule]; accord, In re J.L. (2010)
190 Cal.App.4th 1394, review granted Mar. 2, 2011, S189721; In re S.W., review granted
Jan. 26, 2011, S187897 [residency restriction is not punitive and hence not subject to
Apprendi rule].) While we await guidance from our high court, we will assume for
purposes of argument that discretionary sex offender registration is subject to Apprendi.
Accordingly, the question before us is whether the court's failure to submit the factual
issue to a jury was prejudicial.



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          Apprendi error is not reversible per se, but is reviewed under the harmless error
standard set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705].
(People v. Sandoval (2007) 41 Cal.4th 825, 838.) The test for prejudicial error is whether
we are convinced beyond a reasonable doubt a jury would have made the factual finding
necessary for the court to impose the sex offender registration requirement on defendant
under section 290.006. (Sandoval, at pp. 838-839.)
          B. Analysis
          Defendant contends a reasonable juror could find his offenses arose from his
distress over his breakup with Duenas, rather than from a sexual compulsion. We
disagree. While defendant may have been distressed over the breakup, many of his
actions had a definite sexual content, indisputably showing his crimes had “a sexual
purpose.” (Hofsheier, supra, 37 Cal.4th at p. 1198.)
          The Legislature has recognized that stalking is often for sexual gratification or due
to sexual compulsion. The stalking statute provides: “In addition to the penalties
provided in this section, the sentencing court may order a person convicted of a felony
under this section to register as a sex offender pursuant to Section 290.006.” (§ 646.9,
subd. (d).) Defendant was convicted of stalking under section 646.9, subdivision (a) for
the period August 3 to September 13, and stalking under section 646.9, subdivision (b)
for the period September 13 to October 2, after the temporary restraining order was
issued.
          Defendant was motivated by sexual jealousy. He admitted he installed spyware on
Duenas’s computer because he was concerned that she was texting other men. He was
jealous when she danced with others. He admitted to Duenas that he was jealous. He
called her while he was watching her engaged in sexual relations with Garcia, and then
watched their reaction to the call and subsequent sexual activity and e-mailed himself a
detailed description of these events.



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       His jealousy, however, grew into sexual obsession and perversion; when he acted
on it, it became sexual compulsion. He monitored Duenas’s sexual activity, noting once
that she was “quite horny all week” and had wet stained panties as she read a sexually-
themed magazine. He recorded in detail the actions and words of Duenas’s sexual
encounters with Garcia. He monitored her menstrual cycle and documented when she
missed taking a birth control pill and bled as a result, even noting the type of feminine
hygiene product she used. He installed cameras in her apartment “to get a better feel for
her interactions with [Garcia].” After she moved, he prowled outside her friend’s
apartment and took numerous pictures of Duenas nude, in the shower, and on the toilet so
he could “feel close to her.” He not only took items of her intimate apparel from her
residence, but also took used condoms and wax strips, which he labeled and kept in his
home. He claimed only that he found them “interesting.”
       On August 3, defendant’s actions were overtly sexual. He barged into Duenas’s
apartment after she had found him there and made him leave. He followed her as she
tried to get away, pulling on her shorts and telling her to “get naked.” Once he got her
shorts off, he grabbed at the other pair she tried to put on. He demanded that she “show
me how you’re going to give it to [Garcia].” As she backed up and told him to leave,
defendant threatened to publish nude photographs of her if she made him leave.
       The evidence is overwhelming that defendant’s crimes were due to sexual
compulsion. Any error in failing to submit the question to the jury was harmless beyond
a reasonable doubt. Because we find no prejudicial error in not submitting the
registration issue to the jury, we need not address defendant’s alternative claim of
ineffective assistance of counsel for failure to raise the Apprendi issue at trial.
                                              III
                                   Crime Prevention Fine
       The trial court imposed a crime prevention fine under section 1202.5 of $110,
calculated as $10 times the 11 burglary counts. Defendant contends this was an

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unauthorized sentence because section 1202.5 permits only a single $10 fine in a single
case. (People v. Crittle (2007) 154 Cal.App.4th 368, 371.) The People properly concede
the error.
                                     DISPOSITION
       The judgment is modified by reducing the crime prevention fine (§ 1202.5, subd.
(a)) to $10. As modified, the judgment is affirmed. The trial court is directed to amend
the abstract of judgment accordingly and to send a certified copy of the amended abstract
to the Department of Corrections and Rehabilitation.




                                                       DUARTE               , J.



We concur:



      RAYE                 , P. J.



      BUTZ                 , J.




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