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Name: People v. Johnson
Case #: B252684
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 03/10/2015

Convictions for secretly filming under identifiable persons’ clothing were reversed because the trial court failed to instruct the jury on the definition of “identifiable persons.” Johnson was convicted of 12 counts of violating Penal Code section 647, subdivision (j)(2), which criminalizes the act of secretly filming or photographing an “identifiable person” under or through that person’s clothing for sexual gratification. The jury was shown video footage Johnson had recorded while following women and surreptitiously filming under their skirts without their knowledge. In some cases, the film did not capture the women’s faces. On appeal from his conviction, Johnson contended that five of the counts had to be reversed because there was no evidence he filmed “identifiable persons” based on the fact that the women could not be identified from the video footage. The appellate court rejected that argument, finding that there was sufficient evidence to support the convictions. In order to prove a violation of the statute, the prosecution need not establish that the victim has actually been identified. Instead, it must prove that when all the evidence is considered, it is reasonably probable someone could identify or recognize the victim, including the victim herself or himself. Johnson also contended that the trial court erred by failing to instruct the jury on the definition of “identifiable person.” The appellate court agreed, finding that the trial court had a sua sponte duty to instruct on the definition in this case. During closing arguments, the prosecutor and defense counsel offered two conflicting interpretations of the term. The jury was instructed only with the words of the statute, and the evidence was close as to whether the victims could be identified. Under the circumstances, the failure to instruct was prejudicial on the challenged counts.