People v. Newton

• Decision Date: 09 August 1974
• Docket Number: Cr. 1621
• Citation: 42 Cal.App.3d 292,116 Cal.Rptr. 690
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James Doyle NEWTON, Defendant and Appellant.

Page 690

116 Cal.Rptr. 690

42 Cal.App.3d 292

The PEOPLE, Plaintiff and Respondent, v. James Doyle NEWTON, Defendant and Appellant.

Cr. 1621.

Court of Appeal, Fifth District, California.

Aug. 9, 1974.

Hearing Denied Oct. 2, 1974.

[42 Cal.App.3d 294] Glen W. Schofield, Palo Alto, under appointment by the Court of Appeal, for defendant and appellant.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., William E. James, Asst. Atty. Gen., and Marjory Winston Parker, Deputy Atty. Gen., for plaintiff and respondent.

OPINION

GARGANO, Associate Justice.

On October 23, 1972, a man carrying a .32 automatic pistol and wearing a knit stocking ski cap pulled down over his face entered the Bottle n-Cork Liquor Store in Modesto, California; he approached James Hertzell, an employee at the store, and said, 'Shh, I know there's somebody in the back.' Then, the gunman ordered the employee to hand over the money in the cash register and his wallet; the wallet was embossed with a distinctive red maple leaf and contained Hertzell's driver's license, his Master Charge card and miscellaneous papers.

On the following day, appellant and a woman, later identified as Roberta Pack, approached the check stand of the Oakdale Superette in Oakdale, California; the couple had some groceries, and appellant handed Thomas Phillips, the manager, a Master Charge card in the name of 'James E. Hertzell,' and offered to use it to pay for the groceries. The manager asked appellant for identification, and appellant produced a Social Security card in Hertzell's name. Phillips indicated that the identification was insufficient, and appellant replied, 'The card's good, you can call on it if you like.' Phillips walked to the back of the store and called the Master Card security department; he was told that the card was 'hot.' A few minutes later the manager of the store placed appellant under arrest and called the police. Then, when Miss Pack left the building the manager followed her to a car parked about a half block down the street and persuaded her to return to the store.

The call to the police was answered by Officer Gerald Hunt of the Oakdale Police Department. Hunt talked to the manager of the store and then called the Master Charge security department and verified that the Master Charge card in the name of 'James E. Hertzell' was stolen. He also called his police dispatcher and was told that the card was taken during the robbery of the Bottle n-Cork Liquor Store. The officer searched appellant's person, and when he found Hertzell's wallet in appellant's rear pocket, he placed appellant and Miss Pack in the patrol car of Deputy Sheriff Norman Henderson of the Stanislaus County Sheriff's Office; Deputy Henderson had arrived at the scene to help his fellow-officer. Afterward, the officers left to search the suspects' vehicle. Before leaving, however, Henderson activated a hidden tape recorder to record appellant and Miss Pack's conversations.

After searching the suspects' automobile, Hunt and Henderson transported appellant and Miss Pack to the Oakdale Police Department. Then the officers removed the suspects from the patrol car and searched that vehicle. They found a narcotics outfit or kit containing a measuring spoon under the back seat; lying under the front seat on the passenger side were two rolled up balloons and a needle; the balloons contained heroin. A brown packet containing some' ripped up' Master Card receipts was found in Roberta Pack's purse. Henderson explained that he later listened to the tape recording; in summarizing the contents of the recording, the officer revealed that Miss Pack stated, 'I have the outfit with me' and that there then was a discussion concerning the two balloons and Mr. Newton said, 'Put them over there; push them up there with your foot.' The officer explained that at one point Miss Pack stated, 'The receipts from the credit cards, I tore them up and they are in my purse in a little brown package,' and that Mr. Newton said, 'This is a hard one, they could have me for five counts of armed robbery; we should have split.'

On November 15, 1972, an information was filed in the Superior Court of Stanislaus County charging appellant with several felonies, including robbery in violation of section 211 of the Penal Code; appellant entered pleas of 'not guilty' to all counts.

On January 8, 1973, appellant entered pleas of guilty to receiving stolen property in violation of subdivision 1 of section 496 of the Penal Code, a felony, theft by use of a stolen credit card in violation of section 484g of the Penal Code, a misdemeanor, and possession of a narcotic in violation of section 11500 (now section 11350) of the Health and Safety Code, a felony. The court then granted the People's motion to dismiss the robbery count. Appellant was sentenced to state prison on the felony counts for the terms prescribed by law, the sentences to run concurrently; on the misdemeanor count, appellant was sentenced to the term he already had served in the county jail; he also was given credit for time served in the county jail on his present sentences.

Appellant has appealed from the judgment entered on his plea of guilty, raising two issues: that his constitutional and statutory right of privacy was violated; that the prosecutor failed to comply with the terms of the plea bargain.

THE RIGHT OF PRIVACY

Appellant maintains that the tape recording of his conversation with Roberta Pack violated his constitutional right of privacy. He also maintains that the recording of his conversation with Miss Pack without his knowledge or consent violated subdivision (a) of section 632 of the Penal Code and section 2511 of title 18 of the United States Code, and that the contents of the recording were not admissible. (See Pen.Code, § 632, subd. (d); 18 U.S.C.A. § 2515.) Section 632 of the Penal Code prohibits the use of electronic recording devices to eavesdrop or record confidential communications; section 2511 of title 18 of the United States Code prohibits the wilful interception of oral communications.

There is no merit to appellant's contention. The constitutional right of privacy and the state and federal regulations prohibiting the recording of conversations are all designed to protect Confidential communications. Therefore, the test as to whether these salutary laws have been violated depends upon whether the person whose conversaion was recorded had a reasonable expectation of privacy at the time of the recording. Because appellant and Miss Pack were under arrest and in police custody in a patrol car when their conversation was recorded, it cannot be argued successfully that they had a reasonable and justifiable expectation of privacy at the time of the recording.

The case of People v. Todd, 26 Cal.App.3d 15, 17, 102 Cal.Rptr. 539, is apposite. In that case, as here, the defendant and his brother were arrested and placed in the rear of a patrol car. Also, in Todd, as in this case, the police activated a device for the purpose of recording the suspects' conversations during the officer's absence. The court stated:

'. . . while it is clear in the case before us that defendant was subjectively unaware his incriminating statement would be recorded or otherwise heard by the investigating officers, we do not believe society is prepared to recognize his expectation of privacy to have been reasonable. Nor did the trial judge, who noted it was unlikely for defendant to have concluded he was being placed in the...