People v. Apodaca

• Decision Date: 18 July 1967
• Docket Number: Cr. 12344
• Citation: 252 Cal.App.2d 656,60 Cal.Rptr. 782
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Eddie APODACA, Defendant and Appellant.

Page 782

60 Cal.Rptr. 782

252 Cal.App.2d 656

The PEOPLE, Plaintiff and Respondent, v. Eddie APODACA, Defendant and Appellant.

Cr. 12344.

Court of Appeal, Second District, Division 3, California.

July 18, 1967.

As Modified July 25, 1967.

Hearing Denied Sept. 13, 1967.

Marshall K. Gordon, Canoga Park, under appointment by the Court of Appeal, for appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Richard Tanzer, Deputy Atty. Gen., for respondent.

FORD, Presiding Justice.

In a 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 imprisonment in the state prison for the term prescribed by law. He has appealed from the judgment.

The defendant contends that a tape recording 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 evidence so obtained was inadmissible under the reasoning of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 2465, and under the 'basic policy' set forth in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, and People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361.

The pertinent portions of 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 sections. 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 phone company but an instrument on both sides and they talk into the phone, which enables them to converse between themselves. * * * Much like 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 evidence 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 to be construed as prohibiting law enforcement officers from doing that which they are otherwise authorized by law to do and because 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 the law. (See comment, Electronic Eaves dropping: A New Approach (1964) 52 Cal.L.Rev. 142, 150--151.)

In Morgan a recording was made of a conversation between the 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, 16 Cal.Rptr. at page 840): '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 argument. A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack 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, 521: 'To censor and in certain instances to forbid communication to and from a prison is inherent in its administration. Such authority is necessary to prevent 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, at page 108: '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 to eliciting incriminating statements."

In Boulad we also considered the reasoning of Massiah and stated (235 Cal.App.2d, at page 126, 45 Cal.Rptr. at page 109): 'On this analysis we cannot agree with appellant that the eavesdropping--the only element in Massiah not found in Escobedo--violated a constitutional right. In spite 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 affirmed.

COBEY and MOSS, JJ.,...