People v. Albert

• Decision Date: 15 July 1960
• Docket Number: Cr. 7054
• Citation: 6 Cal.Rptr. 473,182 Cal.App.2d 729
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Kris G. ALBERT, Defendant and Appellant.

Page 473

6 Cal.Rptr. 473

182 Cal.App.2d 729

PEOPLE of the State of California, Plaintiff and Respondent, v. Kris G. ALBERT, Defendant and Appellant.

Cr. 7054.

District Court of Appeal, Second District, Division 2, California.

July 15, 1960.

Rehearing Denied Aug. 9, 1960.

Hearing Denied Sept. 7, 1960.

Maurice Rose and Myron L. Gardon, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Jack K. Weber, Deputy Atty. Gen., for respondent.

RICHARDS, Justice pro tem.

Defendant was charged by indictment of a violation of section 653f of the Penal Code with having solicited Michael Flores Angulo to commit the crime of murder of Pearl Albert, who was the defendant's wife. He was found guilty by a jury and was sentenced to the state prison for the term prescribed by law, with execution stayed pending appeal. His motion for a new trial was denied. He appeals from the judgment and from the order denying his motion for a new trial.

Appellant does not challenge the sufficiency of the evidence to sustain the conviction, hence we shall summarize the evidence as shown by the record primarily insofar as it is relevant to the grounds upon which defendant seeks reversal.

Pearl Albert, defendant's wife, was married to him in 1941, and soon thereafter suffered a serious illness resulting in a gradual paralysis so that by 1959 she was almost completely paralyzed, and when not in bed, was confined to a wheel chair. She and defendant separated in 1953, and in a property settlement agreement growing out of divorce proceedings, defendant guaranteed the payment of a stipulated monthly amount for her support.

Angulo resides in the town of Agoura in the San Fernando Valley. On either March 8th or 10th, 1959, defendant, whom Angulo had known for approximately one year, went to Angulo's home, and in a private conversation with Angulo, which lasted about fifteen minutes, said that his wife was giving him a lot of difficulty, that he wanted her out of the way, and that it was worth $5,000 to him. After the conversation was over, Angulo first went to the State Highway Patrol and within a day or so to the downtown headquarters of the Los Angles Police Department. Angulo related to the police his conversation with the defendant, and at their suggestion, the defendant was telephoned and Angulo told him that he was calling from Los Angeles because he had brought his daughter to the county hospital and that she needed a surgical operation for her tonsils. Angulo made an appointment with defendant for that same day at Angulo's home. Angulo's telephonic statement to the defendant was not entirely true and was made in order to effect another meeting between Angulo and the defendant. After the telephone conversation, the police fitted Angulo with a Minifon ¹ (a self-contained recording device) strapped from the shoulder and hidden under the arm and operated by a push button. He was instructed by the police not to use it in an automobile if the radio or motor was operating.

Defendant came to Angulo's home later that day in his automobile and when Angulo went out to meet him, defendant asked Angulo to get in the car. Angulo demurred, using as an excuse that he was waiting for a telephone call next door. Defendant insisted that Angulo get in, which Angulo finally did, the Minifon then being concealed on his person. After driving about a block the defendant stopped and parked the car at Angulo's request. After some preliminary conversation about Angulo's daughter, there followed the conversation in the car constituting the solicitation which was recorded on the Minifon and was the subject of testimony by Angulo. In this conversation, clearly sufficient to establish a solicitation to commit murder and defendant does not contend otherwise, defendant discussed Mrs. Albert's feeble condition and the ease with which she could be done away with by smothering. He suggested how to handle the housekeeper if she were present and suggested that Angulo could gain entrance on the pretext of a holdup or that he wanted to use a telephone because of car trouble. Defendant told Angulo how Mrs. Albert had suffered and that it would be an act of mercy. When asked by Angulo why defendant wanted to do away with his wife, defendant said that the problem was getting progressively worse and worse, and that it might be a month or a year or more for her 'just to keel over'. Angulo asked how much it was worth and the defendant said that he had already told him $1,000. Angulo replied that he thought it was $5,000 to which the defendant answered that it was not worth that much, that she was apt to die on her own and that he had been tempted to do it himself but that he would be under suspicion. Angulo finally said that it was a deal as he needed the money. The defendant gave him $50 in currency and said he would return within a week with the balance. The defendant did not take the stand at the trial, and offered no evidence that the conversation in the car did not take place other than evidence as to the credibility of Angulo.

The following grounds for reversal are urged:

Error in Receiving Recorded Conversation.

Defendant contends that the wire recording obtained by the use of the concealed Minifon was illegally obtained by a fraudulent entry into defendant's automobile, and hence, under People v. Cahan, 44 Cal.2d 434, 282 P.2d 905, 50 A.L.R.2d 513, inadmissible. In support of this contention the defendant relies chiefly upon People v. Tarantino, 45 Cal.2d 590, 290 P.2d 505, which is clearly distinguishable in that the entry there was made into premises without permission and constituted a trespass, and that a hidden microphone was installed with wires leading to a nearby building where the recordings were made. The uncontroverted evidence here is that it was defendant who first invited Angulo into the automobile and that it was only after Angulo attempted to avoid holding a conversation in the car that he did get in at defendant's insistence. Here there was no 'clandestine eavesdropping' (People v. Tarantino, supra, 45 Cal.2d at page 595, 290 P.2d at page 509) for the defendant knew that whatever he said to Angulo could be repeated by him to other. Where the defendant 'freely consents to an entry or search, * * * his constitutional rights are not violated and any search or taking of evidence pursuant to his consent is not unreasonable' (People v. Michael, 45 Cal.2d 751, 753, 290 P.2d 852, 853). Where the entry is by invitation of the defendant, a secret recording of a vis-a-vis conversation is not inadmissible as violative of the search and seizure provisions of the United States Constitution (4th and 14th Amendments) or of the California Constitution (Art. 1, § 19), whether the recording be by means of a self-contained recording device (People v. Wojahn, 169 Cal.App.2d 135, 142-145, 337 P.2d 192 (hearing den.); People v. Goldberg, 152 Cal.App.2d 562, 573, 314 P.2d 151 (hearing den.)), or by means of a concealed wireless transmitter where the recording is made at another location. (People v. Avas, 144 Cal.App.2d 91, 98-99, 300 P.2d 695 (hearing den.); People v. MacKenzie, 144 Cal.App.2d 100, 106-107, 300 P.2d 700 (hearing den.)).

While it is clear that Angulo only entered defendant's automobile after he had been invited so to do by defendant, it is argued that "installation and use of the Minifon by the police officials in defendant's automobile was not rendered legal by defendant's consent that Angulo entered his automobile, and such consent was obtained by their affirmative misrepresentations and false pretenses". By misrepresentations and false pretenses' defendant refers to the telephone conversation between Angulo and defendant originating at the police headquarters and which preceded the meeting at Angulo's home, and in which telephone conversation Angulo did make certain misleading statements as to his daughter's condition, and which he testified were made so as to effect another meeting with defendant While we recognize that an "entry obtained by trickery, stealth or subterfuge renders a search and seizure invalid" (People v. Roberts, 47 Cal.2d 374, 378, 303 P.2d 721, 723), however, we are unable to conclude that the telephonic statements by Angulo had any causal relation to his entry into the defendant's car, in view of the circumstances that Angulo did not seek or request to make the entry but sought to avoid it and the entry by him was made only at the defendant's insistence. See On Lee v. United States, 343 U.S. 747, 752-753, 72 S.Ct. 967, 96 L.Ed. 1270, 1275. Fraternal Order of Eagles No. 778, Johnstown, Pa. v. United States, 3 Cir., 57 F.2d 93, cited by defendant is readily distinguishable in that there the Government prohibition agents were admitted to appellant's lodge room upon presentation of forged membership cards surreptitiously taken from other lodges of the same fraternal order.

Defendant asserts, as a further claim of error in admitting the wire recording, that a misdemeanor was committed in making use of the recording device in violation of Penal Code 653h, which reads in part: "Any person who, without consent of the owner * * * installs or attempts to install or use a dictograph in any * * * vehicle, * * * is guilty of a misdemeanor * * *." This argument assumes that the Minifon and a dictograph are one and the same. We have concluded that the instrument here involved, a self-contained recorder, is not a "dictograph" within the language or intendment of section 653h.

By definition, ² a dictograph is an instrument for the electrical transmission of sound from the place where the sound is received to another place where the sound is made audible. While undefined by judicial decision in California, it is clear from the various decisions involving various types of listening devices, that only a device coming within the above description has been considered to be a 'dictograph' within the...