Opinion
Fоllowing our affirmance of the judgment of conviction the Supreme Court granted a hearing and thereafter retransferred the cause to this court for reconsideration in light of
People
v.
Crowson
(1983)
After a trial by jury, defendant was found guilty of receiving stolen property (Pen. Code, § 496), of grand theft (Pen. Code, § 487, subd. 1) and of conspiracy to shoot at an inhabited building (Pen. Code, §§ 182, 246). 1
*72 On appeal from the judgment, defendant contends: (1) his purported waivеr of Miranda 2 rights and ensuing confessions were involuntary; (2) the prosecutor had a duty to guard against inadmissible statements from his witnesses and was guilty of misconduct warranting a mistrial when he violated that duty; (3) an adult conviction which resulted in defendant’s sentence to the California Youth Authority could not be used to impeach him after he had been physically discharged from that institution; and (4) the secret recording of defendant’s conversation while in the back of a patrol car violated Penal Code section 2600 or his right to privacy guaranteed by article I, section 1, of the California Constitution.
Facts
While on patrol at abоut 4:18 a.m. on September 28, 1981, Officer Ortiz heard what he believed to be gunshots; he heard a radio dispatch indicating shots had been fired at Cirby Way and Wildwood and the suspect vehicle was a dark-colored Ranchero or El Camino-type vehicle. The officer talked to the clerk of the 7-Eleven store on that corner, who described the shots and vehicle. Ortiz then went to an apartment building behind the 7-Eleven where residents of two apartments indicated someone had shot into their apartments. A dog had been shot and was lying dead on a chair next to one apartment. Officer Ortiz saw a black Rancherо drive by with defendant in the car; he told Sergeant Hughes he thought it was the suspect vehicle and Hughes drove off in the direction the Ranchero had gone. The 7-Eleven clerk pointed to the Ranchero and told Ortiz, “ ‘There it goes.’” Ortiz radioed Hughes that the Ranchero was the vehicle and proceeded to where Hughes had stopped the Ranchero. After the vehicle’s occupants had exited, Ortiz observed through the open door an unfired shotgun shell which matched those collected at the apartment building; he also observed the barrel of a shotgun. Defendant and another man were placed under arrest for firing into an occupied dwelling. They were placed in the back of the patrol vehicle and a tape recorder was activated. Based on this recorded conversation, search warrants were obtained and evidence was seized that was used against defendant. Defendant was interviewed by Officer Neves at the Roseville City jail on September 28, 29 and 30.
I
Although defendant testified he understood the waiver of his Miranda rights, he contends the waiver and ensuing confession *73 were involuntary. 3 He bases this contention on his testimony that, before reading him his Miranda rights, Officer Neves reminded him he was “on CYA parole hold and that it would benefit in a way if I would talk .... [f] That if I didn’t talk to him or if I was fоund not guilty of a crime, that I could do six months to a year in CYA.” Neves allegedly told defendant that if he was helpful Neves might be able to talk to CYA. Defendant contends the reminder regarding the California Youth Authority was both an implied threat that, unless he waived his rights and made a statement, the California Youth Authority would incarcerate him no matter what the outcome was on the pending charges, and an implied promise that if he made a statement it would benefit him in the eyes of the Youth Authority. He argues there is ample and reasonable ground for doubting whether a suspect who has been held incommunicado from his parents, friends and attorney in a jail cell for 10 hours and is reminded by a police officer that he is on California Youth Authority parole possessed either a rational intellect or a free will. 4
“It is well settled that a confession is involuntary and therefore inadmissible if it was elicited by any promise of benefit or leniency whether express or implied. [Citations.]”
(People
v.
Jimenez
(1978)
That version of events indicates Officer Neves did discuss the fact defendant was on parole and that a parole hold had been placed, but that the discussion was in the context of advising defendant to tell the truth. 5 Neves denied telling defendant he could dо six months, a year or more in CYA on a revocation and that if defendant cooperated Neves would let CYA know. We accept Neves’ version of events as the version most favorable to the People and thus conclude no express threats or promises of leniency were made.
Moreover, we reject defendant’s contention that the reminder regarding the California Youth Authority parole hold was an implied threat or promise. In determining defendant’s confession was the product of a rational intellect and free will, we have taken into account the totality of cirсumstances surrounding the confession and considered the interviews of September 28 and 29 in their entirety. (See
People
v.
Sanchez
(1969)
The record also reflects discussion about talking to the district attorney regarding a deal. Neves testified he told defendant he could not offer any deals himself. While defendant testified Neves told him he would talk to the district attorney and if it was found defendant was being truthful he could get a deal of no state time, Neves testified that there was no discussion about what kind of deal defendant sought and specifically denied he promised defendant he would not go to state prison. Neves did talk to the district attorney’s office; he testified he told defendant the district attorney would make no deals unless all of the information defendant claimed to have was first on the table. We conclude no implied promise of a “deal” or leniency resulted from these conversations.
*75 Since we have concluded defendant’s waiver of Miranda rights and ensuing confession were voluntary, we need not reach defendant’s contention a second confession was the result of the same influences which rendered the first confession inadmissible.
Additionally, defendant contends on appeal Officer Neves’ destruction of his interview notes requires the confessions be held involuntary as a matter of law. We disagree.
Neves chosе not to record his conversations with defendant. He took notes during the interviews but threw them away, pursuant to his standard procedure, after making his report. Defendant claims these procedures violated the principles of
People
v.
Hitch
(1974)
Defendant waived his right to raise the
Hitch
contention by failing to argue
Hitch
below or to seek suppression of defendant’s statement on that basis. (See
People
v.
Carrasco
(1981)
II
Defendant contends the prosecutor had a duty to guard against inadmissible statements from his own witnesses and was guilty of misconduct warranting a mistrial when he violated thаt duty. When defense counsel raised a question concerning the admissibility of evidence as to the dog’s death, the prosecutor indicated he felt it was not relevant and stipulated no photographs regarding that would be introduced. He also stated he would do his best to instruct his witnesses to avoid mention of it in their testimony. Nevertheless, on cross-examination of a prosecution witness, defense counsel asked, “Did you have occasion to look around the landing in front of your apartment?” The witness responded, “Well, I had to clean up the dog. I didn’t see nothing there.” The trial court denied a motion for mistrial, made later out of the presence of the jury, after the prosecutor assured him he had instructed the witness not to go into the issue of the dog. We find no error.
Defendant’s reliance on
People
v.
Glass
(1975)
In
People
v.
Sims
(1976)
*77 should have been granted beсause the prosecutor engaged in misconduct by asking a question designed to elicit inadmissible testimony. The prosecutor had asked his witness if she knew when defendant got a car and the witness responded, “Sometime before he got out of jail this last time.” (Id., at p. 554.) The court indicated the record did not show the prosecutor expected to elicit the testimony, noted the prosecutor had warned the witness prior to trial not to mention defendant had been in or out of jail, and found no evidence of bad faith on the part of the prosecutor. The court also found the trial court properly grаnted the prosecutor’s request for an admonishment that the jury disregard the testimony. The potential for prejudice was much stronger in Sims than here. The testimony complained of was ambiguous; there was no mention of the dog’s death and the jury could have interpreted the comment as referring only to the dog’s having performed some bodily function.
Ill
Defendant contends an adult conviction for forgery (Pen. Code, § 470) which resulted in his sentence to the California Youth Authority could not be used to impeach him after he had been physically discharged from that institution, notwithstanding he was on parole from the Youth Authority when he went to trial on the current charges.
He argues the word “discharge” in Penal Code section 17, subdivision (c), 7 is vague and the construction most favorable to him, construing the word “discharge” to mean physical release from the institution, should have been adopted; as so construed, the forgery conviction should have been deemed a misdemeanor which could not under Evidence Code section 788 be used by the prosecutor for his impeachment at trial.
The trial court rejected defendant’s contention, concluding that discharge from CYA occurs when the authorities have no more power over а defendant and that parole does not qualify under Penal Code section 17, subdivision (c), as a “discharge” from CYA. Evidence of the conviction was received and during closing argument the prosecutor advised the jury defendant had been convicted of forgery and the conviction could be used to assess defendant’s credibility.
We conclude a defendant is not discharged from the Youth Authority within the meaning of Penal Code section 17, subdivision (c), until his *78 parole is completed; thus, the trial court did not err in permitting the prosecutor to use the forgery conviction to impeach defendant. In making this determination, we lоok to the provisions of the Welfare and Institutions Code referring to “discharge” and “release” which appear in article 4, entitled “Powers and Duties of Youth Authority.” 8 (See 58 Cal.Jur.3d, Statutes, § 127, p. 521.)
In general, those provisions use “discharge” to refer to the end of control by authorities, distinguishing such term from “release” from confinement. Thus, section 1723 discusses “every order granting and revoking parole and issuing final discharges to any person under the jurisdiction of the Youth Authority.” Section 1759 governs “release” of persons by an institution or agency. Subdivisions (d) and (e) of section 1760 distinguish between persons who have been released from confinement by the Youthful Offender Parole Board upon conditions, and persons who have been discharged by the Youthful Offender Parole Board from its control. Section 1765 provides the Youthful Offender Parole Board shall retain a person under supervision and control so long as such control is necessary for the protection of the public and “shall discharge such person as soon as in its opinion there is reasonable probability that he or she can be given full liberty without danger to the public.” Similarly, section 1766 permits the Youthful Offender Parole Board to order renewed “release” under supervision and to “discharge” a person from its control when such discharge is consistent with the protection of the public. Sections 1769 through 1770.1 refer to discharge upon expiration of a period of control. Finally, section 1772 defines “honorably discharged” to include every person whose discharge is based on a good record on parole. 9
It is clear that a defendant on parole from the Youth Authority is subject to the control of the authority. As the Supreme Court said in
People
v.
Olivas
(1976)
IV
Defendant contends the secret recording of his conversation with another suspect while in the back of a patrol car violated Penal Code section 2600; in support thereof he cites
De Lancie
v.
Superior Court
(1982)
Defendant’s reliance on
De Lancie
is misplaced. That case dealt with monitoring of conversations in a county jail and there is no suggestion therein that the Court would reach a similar result as to patrol car conversations. Penal Code section 2600 refers to confinement in a state prison. While the court in
De Lancie
concluded the limitations imposed by Penal Code sections 2600 and 2601 were equally binding on county jail authorities
(De Lancie
v.
Superior Court, supra,
Defendant asserts, however, that he was “jailed” or was a jail detainee when he was handcuffed and placed in the back of the caged patrol car. He cites
People
v.
Best
(1959)
Since we find Penal Code section 2600 inapplicable, we must address defendant’s contention the surreptitious recording of his patrol car conversation violated his right to privacy guaranteed by article I, section 1, of the California Constitution. Defendant submits his constitutional right to privаcy represents a fundamental interest which cannot be breached unless the government demonstrates a compelling interest.
(White
v.
Davis
(1975)
“The California Supreme Court has consistently declared that in determining whether an illegal search has occurred under article I, section 13, of our Constitution, the appropriate test is whether a person has еxhibited a reasonable expectation of privacy, and
if so,
whether that expectation has been violated by unreasonable governmental invasion. [Citations]. In contrast, when generally discussing the right of privacy declared in article I, section 1, the court has also said that intrusion into that right must be
*81
justified by a ‘compelling interest. ’ [Citations.] The interface between these two analytical frameworks has yet to be definitively explained by the Supreme Court.” (Fn. omitted.)
(People
v.
Williams
(1982)
In this case, we find it unnecessary to attempt to define the relationship between these provisions because we conclude under either provision a defendant may not complain of governmental intrusion unless he has first established an objectively reasonable expectation of privacy.
11
(See
In re Deborah C.
(1981)
*82
After the filing of our opinion the Supreme Court rendered its decision in
People
v.
Crowson, supra,
Justice Broussard, relying upon the rationale of
De Lancie,
disagreed with this analysis. Noting, however, that
De Lancie
was decided several months after defendant’s trial and implicitly rejecting the argument that
De Lancie
ought to be applied retroactively, he concluded that the challenged recording was properly admitted under
North
v.
Superior Court, supra,
Chief Justice Bird, in a dissent joined by Justice Reynoso, concluded that the clandestine tape recording violated defendant’s right of privacy under the state Constitution.
Since a majority of the Supreme Court has not yet decided either the privacy issue or the question of retroactivity of De Lancie, we are free to resolve the issue. We remain convinced that our analysis, and that of Justice Kaus, are the correct ones.
The judgment is affirmed.
Puglia, P. J., and Sparks, J., concurred.
Notes
Assigned by the Chairperson of the Judicial Council.
The jury found him not guilty on another count of receiving stolen property (Pen. Code, § 496) and not guilty of two counts of shoоting at an inhabited dwelling (Pen. Code, § 246).
Miranda
v.
Arizona
(1966)
For purposes of the issue of voluntariness, we need not determine whether these statements constituted confessions or admissions since in either case the burden to prove voluntariness beyond a reasonable doubt was on the prosecution and since either confessions or admissions obtained without a valid waiver of
Miranda
rights are deemed to have been coerced.
(People
v.
Murtishaw
(1981)
Defendant mentions but does not otherwise discuss the timing or purported lack of communication; we conclude these factors did not render his confession involuntary. There is nothing in the record to indicate defendant had been deprived of slеep during this time or that he was not alert. Although defendant testified he had not had the opportunity to communicate with those persons, there is nothing in the record to indicate he was held incommunicado by police.
When asked if he remembered what the CYA discussion was, Officer Neves responded, “I believe that he was on parole and that the parole hold had been placed.”
It should be noted, however, that the Supreme Court in People v. Murtishaw, supra, 29 Cal.3d at pages 752-756, strongly suggests that the intentional destruction of the primary notes of an officer may violate Hitch where the statements are not exculpatory and the notes are the only other comtemporaneous record of the interview. The better practice would clearly be to preserve such notes in those circumstances.
Penal Code section 17, subdivision (c), provides: “When a defendant is committed to the Youth Authority for a crime punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, the offense shall, upon the discharge of the defendant from the Youth Authority, thereafter be deemed a misdemeanor for all purposes.”
Unless otherwise indicated, all statutory references hereafter are to the Welfare and Institutions Code.
Thе only section we have found in which “discharge” is used to describe release from institutional custody is section 1758, providing discharge of a person by an institution or agency not operated by the authority shall not terminate the control of the authority over such person. The statute by its terms does not aid in interpreting “the discharge of the defendant from the Youth Authority” under Penal Code section 17, subdivision (c). Moreover, we believe that section must be read in conjunction with section 1759, requiring approval of the “release.”
In a case involving a secretly recorded conversation between two suspeсts locked in a police station interview room, the First District stated in
People
v.
Owens
(1980)
While we do not reach the question of whether the governmental interests in this case are compelling, we note that in recording a patrol car conversation between two arrestees the government may have an interest in assuring that the arrestees do not take the opportunity to “get their stories straight” or plan an escape. The police can reasonably expect that such conversations will touch on criminal activity and have an interest in ferreting out and solving crimes. (See People v. Owens, supra, 112 Cal.App.3d at pp. 449-450.)
North
v.
Superior Court
(1972)