People v. Plyler

• Citation: 18 Cal.App.4th 535,22 Cal.Rptr.2d 772
• Decision Date: 31 August 1993
• Docket Number: No. A055508,A055508
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Donald Wesley PLYLER, Defendant and Appellant.

Page 772

22 Cal.Rptr.2d 772

18 Cal.App.4th 535

The PEOPLE, Plaintiff and Respondent, v. Donald Wesley PLYLER, Defendant and Appellant.

No. A055508.

Court of Appeal, First District, Division 2, California.

Aug. 31, 1993.

Certified for Partial Publication ^*

Review Denied Nov. 23, 1993.

[18 Cal.App.4th 538] Rodger Paul Curnow, Oakland, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Ronald A. Bass, Sr. Asst. Atty. Gen., Stan M. Helfman, Ronald E. Niver, Supervising Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

KLINE, Presiding Justice.

INTRODUCTION

Donald Wesley Plyler was convicted after jury trial of three counts of committing a lewd and lascivious act upon a child by force or duress (Pen.Code, § 288(b)). ¹ He was acquitted of one count of rape with a foreign object by force. The trial court reduced the offenses to violations of section 288, subdivision (a) (lewd and lascivious act upon a child without force), and sentenced appellant to state prison for a term of 12 years. Plyler appeals from this judgment.

STATEMENT OF FACTS

Appellant was convicted of the molestation of two young girls, Cecilia S. and Tina G., whom he had befriended and photographed regularly. A professional photographer, he had met both girls on the street and photographed them with their parents' permission. Appellant met Cecilia (9 years old), Tina (8 years old) and their friend Dawn L. (10 years old) in 1981.

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DISCUSSION

I.

Admissibility of Tape Recordings of Appellant's Telephone Conversations With Tina

Appellant contends the tape recording of his telephone conversation with Tina on January 21, 1989, was inadmissible under the Fourth, Fifth, and Sixth Amendments to the United States Constitution and under sections 2600-2601. He further contends the court erred in concluding that portions of the tape of a January 20, 1989 telephone conversation as well as the January 21, 1989 telephone conversation could be used for impeachment. We disagree.

A. The Facts

Appellant was arrested on January 13, 1989, for the molestation of Cecilia. Appellant initially agreed to answer questions after he had been advised of his constitutional rights. When the questioning began to focus upon his relationship with Cecilia, he asserted his right to counsel. Later that day, appellant telephoned Shirley Woolworth, Tina's grandmother, to ask her to advise his friend, Jobie, that he was in jail. About 2 a.m. on January 14th, appellant called collect from the jail in Monterey to find out whether Woolworth had contacted Jobie. Woolworth advised appellant that he could reach Jobie at her place of work. Appellant called Woolworth again at 8:40 a.m. on the 15th to learn whether the police had contacted Tina. Plyler said repeatedly, "They will."

Appellant was assigned a deputy public defender at his arraignment on January 17, 1989. Woolworth telephoned Detective Anderson on the 17th to advise him of

appellant's telephone calls. Anderson went to Woolworth's home on the 19th and, with her permission, attached a tape recorder to the telephone. He instructed Woolworth and Tina to activate the recorder for all incoming calls and to turn off the machine when the call was personal. Anderson also told Tina that when appellant called, "not to be nervous, to be herself, and attempt to get Mr. Plyler to discuss the acts of molest upon her and Cecilia."

1. First Tape: January 20, 1989

On January 20, Detective Anderson instructed the officer in charge of the county jail in Monterey to give the following message to appellant: "[C]all Shirley, collect. That was it. That was the exact message."

Appellant testified that he was asleep in the medical module of the county jail under heart medication when a deputy opened his cell and told him he was to call Shirley Woolworth. The deputy was holding a white cordless phone. Appellant reached for it but the deputy withdrew his hand and said, " 'This is my private phone. Those [indicating toward the day room] are your private phones.' " ² Appellant placed the collect call and talked to Woolworth. After they talked for a while Woolworth said, " 'Well, Tina's here. Let me put her on.' "

During the first recorded conversation, Tina made numerous statements attempting to elicit incriminating statements from appellant. When Tina indicated she "had to get off the phone," she concluded the conversation with: "I don't know. Call me again tomorrow. Call back here. I'll be here."

2. Second Tape: January 21, 1989

Appellant called Shirley again the following day and, after conversing with her, asked her to put Tina on. During this conversation, appellant made various admissions as to his behavior with Tina, including statements that he felt guilt, shame and remorse. He wanted to discuss a woman who had been "involved" with her brother, and the way they dealt with it was to forget about it and to act like it never happened. He stated they worked it out together. During the entire conversation on the 21st, Tina asked no questions and made no statements which could be construed as attempting to elicit a response from appellant. Her remarks were limited to "uhhum." "I don't know," "Yeah, I'm here," "Yeah," and "O.K."

3. Trial Court Rulings

Before trial, appellant moved to exclude both jail tapes on Fourth, Fifth, and Sixth Amendment grounds. The court ruled that the tape recording of the first conversation (January 20th) was inadmissible because it was elicited in violation of appellant's rights under the Fifth Amendment as construed in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The court had previously denied motions to suppress under the Fourth Amendment. It reiterated its ruling when it ruled that the second conversation (January 21st) was admissible under the Fourth, Fifth and Sixth Amendments. For purposes of impeachment, however, both tapes were admissible.

The court reasoned that Tina was acting as a police agent and that on the first tape she tried to deliberately elicit incriminating statements from the appellant, warranting suppression of the first tape on Fifth Amendment grounds. The court distinguished the second tape, finding there was no interrogation. At trial, the second jail tape was played for the jury in the presentation of the prosecution's case in chief. Toward the end of the trial before the defense rested, the trial court returned to the issue of the use of the tapes for impeachment and reaffirmed its prior rulings. Appellant advised the court that but for the court's ruling, he would have testified in his own defense. B. Fourth Amendment and De Lancie (Pen.Code, §§ 2600-2601)

1. Fourth Amendment

As summarized in People v. Hammons (1991) 235 Cal.App.3d 1710, 5 Cal.Rptr.2d 317: "Ordinarily, an arrested person being detained before his or her arraignment does not have an objectively reasonable expectation of privacy, such that surreptitious monitoring and recording of incriminating statements by him or her violates the Fourth Amendment. (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 27-30 ... [196 Cal.Rptr. 704, 672 P.2d 110]; North v. Superior Court (1972) 8 Cal.3d 301, 308 ... [104 Cal.Rptr. 833, 502 P.2d 1305]; id., at pp. 317-318 [104 Cal.Rptr. 833, 502 P.2d 1305] (dis. opn. of Sullivan, J.); Ahmad A. v. Superior Court (1989) 215 Cal.App.3d 528, 535 ... ; People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.... ). However, such an expectation of privacy can arise, under circumstances where the arrested person and a person with whom he was conversing 'were lulled into believing their conversation would be confidential.' (North v. Superior Court, supra [8 Cal.3d], at p. 311 [104 Cal.Rptr. 833, 502 P.2d 1305].)" (Id., 235 Cal.App.3d at p. 1715, 5 Cal.Rptr.2d 317.)

Appellant contends he was "lulled" into such expectation of privacy by the deputy's telling him to use the other phones to make his call to Woolworth, and because a deputy had once answered his question whether the phone calls were recorded in the negative. We disagree. The trial court in finding no Fourth Amendment violation inferentially found no such "lulling" and no reasonable expectation of privacy. ³ The trial court was free to disbelieve appellant's self serving statements as to what he was told on a prior occasion. ⁴

Moreover, had appellant been told the phone calls were not recorded at the jail, this would provide no assurance that his call was not monitored by the recipient, as was the case here. (See, e.g., Hoffa v. United States (1966) 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; People v. Phillips (1985) 41 Cal.3d 29, 52, 222 Cal.Rptr. 127, 711 P.2d 423; People v. Murphy (1972) 8 Cal.3d 349, 105 Cal.Rptr. 138, 503 P.2d 594 [upholding against Fourth Amendment challenges the admissibility of tape recordings of conversations surreptitiously made by associates of the defendant who were acting at the direction of law enforcement officers].)

2. De Lancie and Penal Code Sections 2600-2601

Appellant contends that recording his call to Tina constituted a violation of his right to privacy under sections 2600 and 2601, as applied in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142.

"Section 2600 provides that a person sentenced to imprisonment in a state prison may, during any period of confinement, be deprived of such rights, and only such rights as necessary to provide for the reasonable security of the institution and the reasonable protection of the public. Rights protected include the right to privacy. [Citation.]

"De Lancie was a civil action for injunctive relief, prompted by disclosures at a trial revealing that personnel at the San Mateo County jail were routinely monitoring No case cited to us applies De Lancie in a context such as this, where the person recording the call was a party to the call and we refuse to apply it so. ⁵

conversations between visitors and pretrial detainees. The Supreme...