People v. Catelli

• Decision Date: 26 February 1991
• Docket Number: No. C004884,C004884
• Citation: 227 Cal.App.3d 1434,278 Cal.Rptr. 452
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Joseph Michael CATELLI, Defendant and Appellant.

Page 452

278 Cal.Rptr. 452

227 Cal.App.3d 1434

The PEOPLE, Plaintiff and Respondent, v. Joseph Michael CATELLI, Defendant and Appellant.

No. C004884.

Court of Appeal, Third District, California.

Feb. 26, 1991.

Certified for Partial Publication ^*

Review Denied May, 16, 1991.

[227 Cal.App.3d 1438] Jeffrey J. Stuetz, San Diego, under appointment by the Court of Appeal, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Joel Carey, Supervising Deputy Atty. Gen., Anthony L. Dicce and Maureen Daly, Deputy Attys. Gen., for plaintiff and respondent.

SCOTLAND, Associate Justice.

A jury convicted defendant of 60 sex crimes committed against three victims. (Pen.Code, §§ 261, subd. (a)(2); 286, subd. (c); 288, subd. (b); 288a, subd. (c), 289, subd. (a).) ¹ Allegations that he used a knife during all but one of the offenses and inflicted great bodily injury during four of the crimes were found true. (§§ 12022.3, 12022.8.) The court determined that defendant was sane when he committed the offenses. Sentenced to 557 years in state prison, he raises numerous issues on appeal.

The published portion of this opinion addresses two issues. We consider whether defendant's Sixth Amendment right to counsel was violated when an undercover officer met with him in the jail visiting room in hopes of obtain incriminating statements regarding defendant's efforts to dissuade the victims from testifying. The meeting had been arranged by an inmate who disliked defendant and wanted to obtain damaging evidence against him. On his own, and unknown to law enforcement, the inmate set up a jailhouse encounter so defendant could meet the inmate's "friend" who would take care of the job of "silencing" the victims. When the inmate informed the district attorney's office of the planned meeting, it was decided that an undercover officer would attend as the inmate's friend. At the meeting, defendant made incriminating statements which were introduced against him at trial.

We also determine whether the term "sexual organ" in section 288a, California's oral copulation statute, includes a man's scrotum as well as his penis.

FACTS

On May 8, 1987, defendant lured two runaway girls, Michelle, aged 12, and Heather, aged 14, into his hotel room where he forced them to commit numerous sexual acts with him and with each other. On June 2, 1987, he enticed another runaway girl, Lucille, aged 16, to come to a hotel room and forced her to commit numerous sexual acts with him. After he was arrested, defendant told an officer that he believed Lucille was 18 and that she consented to have sex with him. He admitted they engaged in two acts of intercourse and one act of oral copulation. Defendant acknowledged staying at a hotel with Michelle and Heather but denied any sexual activity occurred. Additional facts will be discussed in detail in our analyses of defendant's contentions.

DISCUSSION

I

Prior to trial, defendant moved to prevent the introduction of evidence concerning statements he made to an undercover officer while in custody because of these charges. ² Defendant alleged that, in obtaining these statements, police violated his Sixth Amendment right to counsel guaranteed by the federal constitution. ³ A hearing was held which disclosed the following:

Frank S., an informant for federal prosecutors in two other states, met defendant while both were incarcerated in the Sacramento County Jail. From the outset, S. did not like defendant. After learning that defendant was in custody on charges of raping several minors, S. set out, on his own, to obtain incriminating information from him. Defendant confessed to S. and talked to him and other inmates about dissuading the victims from testifying, either by using a "Godfather-type routine" of mutilating animals, or by personal threats, or by whatever it took. Defendant boasted of Mafia connections and offered to pay $5,000 for someone to intimidate the witnesses.

When S.'s charges were resolved, he decided to inform on defendant. S. had not done so earlier because he did not want it to appear that he was seeking leniency with respect to the crimes charged against him. While awaiting a court appearance, S. told a deputy sheriff that he had to speak with someone from the district attorney's office about defendant's attempt to intimidate witnesses. This message was brought to the attention of the deputy district attorney assigned to prosecute defendant. In order to determine "whether any plan had been set in motion that would jeopardize the three young girls who were the victims in these cases and to be able to stop any harm from coming to them," the prosecutor arranged for an investigator to meet with S. The investigator was told not to ask anything about defendant's pending charges but simply to "get information about the deal [the proposal to silence the prosecuting witnesses] for the protection of the victims."

After being informed that "he would receive no deals" for the information he had concerning defendant's effort to convince the victims not to testify, S. told the investigator that defendant had confessed. According to S., defendant stated, "I know I'm guilty. You know I'm guilty. I have to get this [defendant's pending case] taken care of." By this, defendant meant the witnesses had to be "silenced" or persuaded not to testify. At the conclusion of the meeting, the investigator did not instruct S. to seek additional information from defendant. According to S., "There wasn't any game plan laid out for it, there was no listen for this and look for that and that type of thing." In fact, S. no longer was in the same cell as defendant, and the district attorney's office made no arrangements for S. to "get closer" to defendant.

Nevertheless, S. continued on his own to talk with defendant about the proposal to deal with the victims. As his trial drew closer, defendant became "very adamant about wanting somebody to contact [the victims]" and asked S. if he knew of anyone who could do the job. Unknown to the district attorney's office or any law enforcement officer, S. "arranged" with defendant for one of S.'s "friends" to "take care of [defendant's] problem." He then brought this to the attention of the district attorney's office. When the investigator asked why S. had made such an arrangement in view of the fact that the investigator had never suggested such a course of action, S. replied, "[W]ell, I thought we may be able to send an officer in or you could send someone in to pretend that they [sic ] were like my friend."

When the prosecutor heard about this development, he and undercover officer Donald Simonds spoke with S. "to find out what [defendant] had told [S.] and what [S.] had told [defendant] concerning the friend who was to meet with him." Again, S. was told he would not benefit from his cooperation. S. stated he would tell defendant that his "friend" would visit defendant on October 5, and it was decided that Simonds would pose as this friend. Thereafter, S. informed defendant that the previously arranged meeting would occur on October 5.

The meeting between defendant and Officer Simonds took place in the visiting room of the jail and was surreptitiously tape recorded. After a brief introduction in which defendant confirmed that Simonds was the friend he was expecting, defendant asked whether Simonds was a "cop." When Simonds replied in the negative, defendant displayed a handwritten note through the glass partition. The note stated: "All I'll need for you to do, would be to convince a couple of witnesses (teenaged girls) to change each of their stories, and admit that no crime was comitted [sic ]. How you convince them is up to you all they need to do is contact my attorney, admit to him that no crime was comitted [sic ], and sign a statement to that effect, then testify in court that no crime took place, when jury trial arrives. I have each of their names, addresses, phone numbers, schools they go to, family members [sic ] names, parents [sic ] place of employments [sic ], and other information. Once contract is fullfilled [sic ], and I am certain you have completed this transaction, you will recieve [sic ] a fee of 2,500.00 hand delivered from an associate of mine from New York." (Underlining in original.) Another note displayed by defendant listed certain books which would aid in establishing his bona fides as a purported member of the Mafia.

After Simonds finished reading the notes, he and defendant discussed their contents, with Simonds repeatedly attempting to have defendant expand on exactly what he wanted done with the victims. Simonds also questioned defendant about how "bad" he wanted "this favor done" and how Simonds would get the information he needed to track down the victims. After the conversation, defendant was searched, and two torn papers were found. Simonds identified them as the notes defendant displayed to the officer.

Defendant testified that S. told him a private detective would visit him to assist in his defense.

The trial court denied defendant's in limine motion to exclude both Officer Simonds' testimony concerning the jail house meeting, including defendant's efforts to silence the victims, and the tape recording of defendant's conversation with the officer. The court found that S. was not a police agent; that the "purpose of the state's activities with respect to these matters was to protect the safety of these witnesses and not to obtain incriminating information with respect to the underlying charges;" that "[w]ith respect to the defendant's statements to Officer Simonds, the only purpose of contacting the defendant was fortunately just a minute purpose of determining whether the witnesses were at risk and their safety was in jeopardy;" and that "[t]here was no interrogation concerning the underlying charges."

Citing Massiah v. United States (1964) 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 a...