People v. Hinman

Decision Date25 August 1967
Docket NumberCr. 12608
Citation61 Cal.Rptr. 609,253 Cal.App.2d 896
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Charles HINMAN, Defendant and Appellant.

Laughlin E. Waters and H. Gary Knight, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Associate Justice.

Defendant was charged in five counts with soliciting Leonard Amabile to commit the crime of murder, each count charging a solicitation on a different date. A motion to dismiss, under section 995 of the Penal Code, was denied; defendant pled not guilty. After a trial by jury, he was found guilty on all five counts. A motion for a new trial was made and denied; probation was denied; he was sentenced to state prison on Count I, no sentence being imposed on the other four counts. Defendant has appealed.

I

We consider, first, the contention that the trial court had lost jurisdiction to try defendant in the present proceeding because he was improperly denied bail for a five-day period from the time of his arrest until the morning of the preliminary examination. This contention was raised by proceedings prior to the preliminary examination, at that examination, on the motion under section 995, at the opening of the trial, and on the motion for new trial. It cannot be said that it was waived. 1

Since defendant was charged with a violation of section 653f of the Penal Code--a non-capital offense--he was entitled to bail as of right (Cal.Const., art. I, § 6) and the denial for the five-day period was error. Assuming, without deciding, that there is an 'implied exception' to the constitutional requirement for bail, the mere opinion of the arresting officer and the deputy district attorney afford even less excuse for the denial here than was held insufficient in In re Keddy (1951) 105 Cal.App.2d 215, 233 P.2d 159. But the denial of bail pending the preliminary examination does not affect the jurisdiction of the magistrate to proceed with that hearing. Appellant relies on two cases--People v. Elliot (1960) 54 Cal.2d 498, 6 Cal.Rptr. 753, 354 P.2d 225 and People v. Napthaly (1895) 105 Cal. 641, 39 P. 29. But in both of those cases, as in People v. Robinson (1963) 222 Cal.App.2d 602, 35 Cal.Rptr. 344, and similar cases, the right infringed was one concerning the conduct of the preliminary examination itself. While counsel argued below, and argues here, that defendant might have been handicapped in preparation for the preliminary hearing by the fact of his incarceration, no showing has been made to us of any facts supporting that hypothesis, nor did his experienced counsel seek to have the preliminary examination continued after defendant was released on bail a few hours before the preliminary examination was to begin.

We conclude that the magistrate had jurisdiction to hold the preliminary examination and that defendant cannot validly attack the information on the ground now under consideration.

II

By the express terms of section 653f of the Penal Code, in order to sustain a conviction thereunder, the 'offense must be proved by the testimony of two witnesses, or of one witness and corroborating circumstances.' The case for the People rested on the oral testimony of Amabile as to seven separate conversations with defendant and the record of three taped conversations--two between defendant and Amabile and one between defendant and the arresting officers after defendant's arrest. Unless the record of these latter conversations was admissible, the requirement of corroboration was not met. 2 Therefore, we turn next to the objections to their admissibility.

A substantial portion of the reporter's transcript is devoted to discussions in chambers over the procedure by which these records, if admissible at all, were to be presented to the jury. The prosecution presented the original tapes of the conversations, and transcriptions made from those tapes, for identification. It is not questioned that a sufficient foundation was laid insofar as identification was concerned. The trial court, in chambers, heard the tapes played 3 and checked the three transcripts against the tapes. It made a preliminary ruling that the tapes were sufficiently intelligible and that the transcripts accurately reflected the sounds on the several tapes. The transcripts were read to the jury as part of the prosecution's case. Thereafter, the defense had the tapes themselves played to the jury. 4 Counsel were permitted to, and did, argue to the jury that the tapes contained so much unintelligible material as to make the intelligible portions statements made out of context and therefore insufficient to constitute the required corroboration. 5 We can see no procedural error in the admission of either the tapes or the transcripts.

It is, however, argued that the recorded conversations were inadmissible on the grounds (1) that they were obtained in violation of the rules laid down in People v. Dorado (1965) 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361; 6 (2) that the tapes were obtained in violation of the rights of defendant under the Fourth Amendment; and (3) that they were obtained in violation of section 605 of the Federal Communications Act.

The argument based on Dorado is without merit. The conversations reflected on the first two tapes took place prior to defendant's arrest and the first even prior to the time when the case had passed beyond the investigatory stage; 7 it is now settled that the Dorado rules do not apply until the defendant is in custody. (Ballard v. Superior Court (1966) 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838.) The third conversation took place after defendant had been arrested, on a warrant, but only after the warnings prescribed by Dorado had been given. 8

The second objection to the use of the recordations is that they were obtained in violation of defendant's basic right of privacy, as protected by the Second, Fourth, Fifth and Fourteenth Amendments.

As to the third tape, containing defendant's conversation with the arresting officers, the argument seems to us to be totally fallacious. Certainly defendant did not regard that conversation as in any way confidential, no invasion of his home (lawful or otherwise) was involved 9 and defendant had already been warned that anything he said could be used against him in court. That the officers chose to record his statements on tape rather than in a notebook or in their memories affords defendant no ground for complaint.

As to the first two tapes and the recordations made of the conversations recorded thereon, defendant's contention is answered by the holding in Lopez v. United States (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, and by the more recent holdings in Hoffa v. United States (1966) 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374, in Lewis v. United States (1966) 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312, and in Osborn v. United States (1966) 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394.

Lopez is on all fours with the case at Bench. A government agent had entered defendant's office, at defendant's invitation, ostensibly to discuss the payment of a bribe. The agent had no intention of being bribed; and he carried a concealed device whereby the conversation was recorded. In an opinion by Mr. Justice Harlan, the court said:

'Davis (the agent) was not guilty of an unlawful invasion of petitioner's office simply because his apparent willingness to accept a bribe was not real. (Citation.) He was in the office with petitioner's consent, and while there he did not violate the privacy of the office by seizing something surreptitiously without petitioner's knowledge. (Citation.) The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. We decline to hold that whenever an offer of a bribe is made in private, and the offeree does not intend to accept, that offer is a constitutionally protected communication.

'* * *

'* * * this case involved no 'eavesdropping' whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner's premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner's assent, and it neither saw nor heard more than the agent himself.

'* * *

'Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory, or to challenge the agent's credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to Davis fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.' (Lopez v. United States (1963) 373 U.S. 427, 438--439, 83 S.Ct. 1381, 1387, 10 L.Ed.2d 462, 470--471.)

The language just quoted is as applicable to the case at Bench as it was in Lopez; the language and holdings in the three more recent cases is to the same effect.

However, it is argued that Lopez and the later cases did not involve the use of a radio transmitting device, but merely of a self-contained recorder, so that the...

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