People v. Garvey, Cr. 18872

• Decision Date: 03 December 1979
• Docket Number: Cr. 18872
• Citation: 99 Cal.App.3d 320,160 Cal.Rptr. 73
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Peter James GARVEY, Defendant and Appellant.

Page 73

160 Cal.Rptr. 73

99 Cal.App.3d 320

The PEOPLE, Plaintiff and Respondent, v. Peter James GARVEY, Defendant and Appellant.

Cr. 18872.

Court of Appeal, First District, Division 4, California.

Dec. 3, 1979.

Hearing Denied Jan. 30, 1980.

Alan M. Caplan, Bushnell, Capland & Fielding, San Francisco, for defendant and appellant (under appointment by the Court of Appeal).

George Deukmejian, Atty. Gen. of Cal., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, R. Gordon Baker, Jr., Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

CHRISTIAN, Associate Justice.

Peter James Garvey appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen.Code, § 245, subd. (a)).

After spending some hours drinking in a bar, appellant attacked without warning another patron who was making ready to leave. The victim fell to the floor and appellant kicked him in the head. Other patrons subdued appellant and the bartender ordered him to leave. On his way out appellant passed the victim, who was still on the floor, and again kicked him in the head. The victim suffered serious injuries.

While appellant was in jail awaiting trial, appellant wrote to a friend. The letter, which was proved at trial through the introduction of a copy, contained a narrative of the events on trial: "(I) just walked up to this guy and nutted up on him, must have caught him by surprise as light as I am, anyhow, I started kicking him in the head, then quit and went out of the front door and the man was on us. Charged with A.D.W. The weapon is my shoe."

Before trial, appellant moved to suppress the letter on the theory that its interception was a violation of "First and Fourth Amendment rights." The court reserved its ruling and during the trial took evidence out of the hearing of the jury concerning the events which brought the letter into the possession of the prosecutor. The motion to suppress evidence was denied.

Defense counsel then objected to evidence based on a copy of the letter (the original having been sent on to the addressee) under the best evidence rule. Upon a showing that the addressee of the letter denied receiving it and stated "that even if I had, I sure wouldn't turn it over to you." The court ruled the copy admissible under exceptions to the best evidence rule (Evid.Code, §§ 1501, 1502 )¹.

Appellant contends, relying on Procunier v. Martinez (1974) 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224, and related cases, that the letter should have been suppressed on the ground that it was obtained for the prosecution as the result of an unconstitutional program of mail censorship. This contention cannot be sustained. The letter was copied as authorized by section 1151 of the Humboldt County Administrative Code, pursuant to a program of monitoring all incoming and outgoing prisoner mail. The purpose of the monitoring operation is to protect jail security. This program is consistent with the holding of the United States Supreme Court in Procunier v. Martinez, supra, see 416 U.S. at p. 143, 94 S.Ct. 1800.

The jailer monitoring outgoing mail copied appellant's letter because it contained an offer to provide the addressee, who was then incarcerated in Contra Costa County, with a pistol. The jailer did not censor the letter; after taking copies which ultimately reached the prosecutor and defense counsel, he posted the letter to the addressee. These actions by the jailer did not constitute a violation of First Amendment rights.

Appellant's claim of a Fourth Amendment violation is also without merit. Except where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him. (People v. Manson (1976) 61 Cal.App.3d 102, 152, 132 Cal.Rptr. 265, cert. den. 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed. 382.)

Appellant contends that use of a copy of the letter, in lieu of the original, should have been precluded under the best evidence rule (Evid.Code, § 1500). But there was proof that the addressee had received the letter in the Contra Costa County jail. His cell was then searched pursuant to a warrant and the letter was not found. This evidence adequately established the unavailability of the document.

Appellant contends that it was improper for the court to allow proof of part of the contents of the letter after the defense had rested its case. The court admitted the evidence at that late stage of the trial on the dual ruling that the material was proper rebuttal evidence and that in the exercise of discretion the prosecution's case in chief should be reopened. The first theory of admission was doubtful at best as the trial court recognized. We do not reach the question because the second alternative basis of the court's ruling must be sustained as an exercise of discretion under Penal Code section 1094. ² The evidence was highly pertinent and it was offered as soon as the necessary foundational showing could be made. Appellant had full opportunity to respond to the material taken from the letter. There was no abuse of discretion. (Cf. People v. Demond (1976) 59 Cal.App.3d 574, 130 Cal.Rptr. 590.)

Finally appellant contends that in pronouncing judgment the court should not have considered factors personal to appellant, as authorized by rule 421(b), California Rules of Court. This contention must be rejected as contrary to governing authority. (See People v. Cheatham (1979) 23 Cal.3d 829, 153 Cal.Rptr. 585, 591 P.2d 1237.

The judgment is affirmed.

CALDECOTT, P. J., concurs.

POCHE, Associate Justice, dissenting.

I dissent.

The majority here concludes that the program of mail censorship at the Humboldt County jail does not violate the Fourth and First Amendment rights of pretrial detainees; I disagree.

Appellant was incarcerated in the Humboldt County jail because of his inability to post bail. While awaiting trial he wrote a letter to a friend who was then in jail at Martinez, California. Appellant was not informed that his letter would be subject to censorship nor were the regulations allowing censorship posted in the facility.

What appellant did not know was that jail personnel routinely censored all incoming and outgoing mail except correspondence with courts, lawyers, holders of public office or the State Department of Corrections. Appellant's letter was censored by Deputy McLellan who testified that:

"In censoring the mail I open letters and glance through them, looking for filthy language, anything that might catch my eye as far as jail security goes. Just glance through them, don't read every letter unless something catches my eye, and then I read the letter, and if I think appropriate, send a copy to whoever may be involved."

The officer noticed a mention of a weapon, made a copy of the letter which he gave to his supervisor, and then sent the original to the addressee. Neither the appellant nor his correspondent were informed of Officer McLellan's actions.

At trial, the prosecution was allowed to introduce the copy of appellant's letter, but the portion which pertained to the weapon was excised.

Fourth Amendment Violation

Under California law, one appropriate test for determining the validity of a particular search and seizure made without the prior issuance of a warrant is whether the defendant exhibited a reasonable expectation of privacy, and if so, whether that expectation was violated by an unreasonable governmental intrusion. (North v. Superior Court (1972) 8 Cal.3d 301, 308, 104 Cal.Rptr. 833, 502 P.2d 1305.) The foregoing principle was adopted by the California Supreme Court from the language of Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, wherein the United States Supreme Court held that the government's activities in electronically listening to and recording the conversation of the petitioner in a public phone booth violated the privacy upon which he justifiably relied. The court concluded that the government's activities constituted a search and seizure within the meaning of the Fourth Amendment and that in the absence of a prior judicial approval the search and seizure were unreasonable. (Id., at p. 353, 88 S.Ct. 507.)

Our task mandated by those decisions is to determine (1) whether a pretrial detainee who has no notice that his sealed personal mail will be subject to censorship by jail authorities has a reasonable expectation that such correspondence will remain private, and, if so, (2) whether the government's acts of opening of the letter and copying it without notice to him are unreasonable governmental intrusions.

Rather than take this approach, the majority relies on People v. Manson (1976) 61 Cal.App.3d 102, 152, 132 Cal.Rptr. 265, (cert. den. 430 U.S. 986, 97 S.Ct. 1686, 52 L.Ed. 382), for the proposition that "(e)xcept where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him." The source of the Manson headnote ¹ is the 1919 decision of the United States Supreme Court in Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103, reh. den. 251 U.S. 380, 40 S.Ct. 176, 64 L.Ed. 317, where it was held that the interception and use in evidence of certain letters tending to establish the guilt of a convicted federal prisoner charged with the murder of a prison guard did not violate the Fourth Amendment because the letters were "voluntarily written," "no threat or coercion was used to obtain them," and they came into possession of the prison officials under "established practice" designed to promote discipline of the institution. (Id., at p. 21, 40 S.Ct. at p. 53.) Stroud was decided 48 years before Katz, which recognized that the Fourth Amendment also protects a reasonable...