People v. Apodaca
60 Cal. Rptr. 782
Cal. Ct. App.
1967
Check Treatment
FORD, P. J.

In а trial by jury the defendant was found to be guilty of robbery of the first degree. Probation was denied and he was sentenced to be punished by imprisonmеnt in the state prison for the term prescribed by law. He has appealed from the judgment.

The defendant contends that a tape rеcording of a conversation between him and a visitor at the jail was erroneously received in evidence contrary to the provisions of section 653j of the Penal Code. 1 It is further contended that the *658 evidence so obtained was inadmissible under the reasoning of Massiah v. United States, 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199], and under the “basic policy” set forth in Esobedo v. Illinois, 378 U.S. 478 [12 L.Ed.2d 977, 84 S.Ct. 1758], and People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361].

The pertinent portions оf the record will be noted. Lieutenant Goodyear of the Inglewood Police Department testified that on January 13, 1966, while the defendant was in jail, he had a visitor, Mr. McNeil. The visitor talked to the defendant in a visiting booth which the witness described as follows: ‘ ‘ This is a small booth with two sectiоns. There is a divider in the middle which is glass and wire, and communication is made by a phone instrument. It is not a normal phone as hooked up by the рhone company but an instrument on both sides and they talk into the phone, which enables them to converse between themselves. . . . Much likе an intercom.”

Lieutenant Goodyear testified that Mr. McNeil was never an agent of the police department and that he did not converse with the defendant pursuant to any instructions. A tape recording was made of the conversation. Neither the ‍‌‌‌​‌​‌‌‌​​​​‌‌‌​​‌‌​​‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌‌​‌​​​​‍defendant nor his visitor were told that the conversation was being recorded. Lieutenant Goodyear monitored the conversation. Over the defendant’s objection the recording was played at the trial in the presence of the jury.

We have reached the conclusion that the admission in evi *659 deuce of the recorded conversation was not prohibited by the provisions of section 653j of the Penal Code because subdivision (h) thereof provides that that section is not tо be construed as prohibiting law enforcement officers from doing that which they are otherwise authorized by law to do and becausе the reasoning of People v. Morgan, 197 Cal.App.2d 90 [16 Cal.Rptr. 838], decided in 1961, establishes that a recording of the conversation of a prisoner in such a manner is authorized under thе law. (See comment, Electronic Eavesdropping: A New Approach (1964) 52 Cal.L.Rev. 142, 150-151.)

In Morgan a recording was made of a conversation between defendant and his sister while they were using a visiting booth of the nature of that employed in the present case. In the course of its reasoning the court stated (197 Cal.App.2d, at page 93) : “Defendant also contends that the recording of the conversation was an invasion of his privacy and therefore unlawful. We are unable to see any merit in this argumеnt. A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lаck of privacy is a necessary adjunct to his imprisonment. As the court said in Davis v. Superior Court, 175 Cal.App.2d 8, 20 [345 P.2d 513] : ‘To censor and in certain instances to forbid communication to and from a prison is inherent ‍‌‌‌​‌​‌‌‌​​​​‌‌‌​​‌‌​​‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌‌​‌​​​​‍in its administration. Such authority is necessary to protect against escape.’ ’’ 2

The defendant is not aided by the reasoning of Escobedo and Dorado. As we said in People v. Boulad, 235 Cal.App.2d 118, at page 125 [45 Cal.Rptr. 104] : “Escobedo and Dorado are not applicable, for the simple reason that the incriminating statements were not the result of a ‘process of interrogations that lends itself tо eliciting incriminating statements.’ ”

In Boulad we also considered the reasoning of Massiah and stated (235 Cal.App.2d, at page 126) : “On this analysis we cannot agree with appellant that the eavesdropping—the only element in Massiah not found in Escobedo—violated a con *660 stitutional right. In sрite of the superficial resemblance between Massiah and the present case, the plain fact is that Massiah would have found shelter under Escobedo• while Boulad cannot. The decisive difference is that here there was no interrogation of any kind. ’ ’

The judgment is afSrmed.

Cobey, J., and Moss, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied September ‍‌‌‌​‌​‌‌‌​​​​‌‌‌​​‌‌​​‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌‌​‌​​​​‍13, 1967. Peters, J., was of the opinion that the pеtition should be granted.

Notes

1

Section 653j, enacted in 1963, is in major part as follows:

‘‘ (a) Every person or his authorized agent not a party to the communication who, intentionally and without the consеnt of any party to a confidential communication, by means of any electronic amplifying^ or recording device, eavesdrоps upon or records a confidential communication, whether such communication is carried on among such parties in the рresence of one another or by means of a telegraph, telephone or other device, except a radio, shall be punished by imprisonment in the county jail not exceeding one year, or by fine not exceeding one thousand dollars ($1,000), or by both such finе and imprisonment.
‘‘(b) The term ‘person’ includes an individual, business association, partnership, corporation, or other legal entity, and аn individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or *658 recording such communication or an individual acting under the direction of a party to the confidential communication.
“(e) The term ‘ confidential communication ’ includes any communication carried on in such circumstances as may reasonably indicate that the parties to such communicаtion desire it to be confined to such parties, but excludes a communication made in a public gathering or in any legislative, judicial, еxecutive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
“ (d) Except as proоf in a suit or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording ‍‌‌‌​‌​‌‌‌​​​​‌‌‌​​‌‌​​‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌‌​‌​​​​‍a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative or other prоceeding.
“ (e) . . . [relating to any public utility engaged in the business of providing communications services and facilities.]
“(f) This section shall not be сonstrued to repeal Sections 591, 593(b), 619, 621, 640, 653h or 653i of this code or to render lawful any act which is unlawful under any of those sections.
“ (g) . . . [relating to the use of hearing aids and similar devices by persons with impaired hearing.]
‘ ‘ (h) Nothing in this section shall be construed as prohibiting law enforcement оfficers from doing that which they are otherwise authorized by law to do.”
2

The conversation in the present case was not, of course, a privileged communication within the protection of section 653i of the Penal Code which is in part as follows: “Every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic or other device, a ‍‌‌‌​‌​‌‌‌​​​​‌‌‌​​‌‌​​‌‌​‌‌‌‌​‌‌​​​‌‌​‌​‌‌​‌​​​​‍conversation or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and such person’s attorney, religious ad-visor, or licensed physician, is guilty of a felony; ...”