State v. Drennan

• Decision Date: 27 November 2000
• Citation: 84 Cal.App.4th 1349,101 Cal.Rptr.2d 584
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 3 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. CRAIG BOYD DRENNAN, Defendant and Appellant. C033959 (Modoc) Filed

101 Cal.Rptr.2d 584 (Cal.App. 3 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. CRAIG BOYD DRENNAN, Defendant and Appellant.

C033959

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Modoc)

Filed 11/27/00

APPEAL from a judgment of the Superior Court of Modoc County. Larry L. Dier, Judge. Reversed.

(Super. Ct. No. S173F99)

Dennis P. Riordan, Donald M. Horgan and Dylan L. Schaffer, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Stephen G. Herndon, Supervising Deputy Attorney General, David Andrew Eldridge, Deputy Attorney General, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION

BLEASE, Acting P. J.

Craig Boyd Drennan, who was superintendent of the Modoc Unified School District, was convicted of violating Penal Code section 632, subdivision (a)(intentional eavesdropping upon or recording of a confidential communication), based upon the installation of a hidden video camera, which took periodic photographs, without accompanying sound, of the area of the desk, computer, file cabinet, credenza and bookcase in the office of the Modoc High School principal.¹

We will reverse the judgment of conviction because the photographing of the principal's office for a purpose and in a manner which did not reveal the content of any conversation, was not an intentional act of recording a "confidential communication" as those terms are used in section 632.

FACTUAL AND PROCEDURAL BACKGROUND

Drennan is the Superintendent of the Modoc Unified School District.² Dewey Pasquini was the principal at Modoc High School during the 1998-1999 school year.

Sometime prior to December 1998, Drennan asked the school district's attorney if it would be lawful to install a hidden camera in Pasquini's office to determine if someone was breaking into Pasquini's office and taking or reading confidential documents. The attorney informed him he lawfully could install the camera as long as it had no sound recording capabilities. Drennan also contacted the school board president and notified him of the camera. Drennan did not tell Pasquini about the camera.

Drennan directed James Lloyd, the maintenance supervisor for the school district, to hire someone to install the camera. The camera was installed in November 1998. After the camera was set up, Drennan viewed a tape of the area photographed. Drennan was not happy with the camera angle, because it showed the entire office. He was only interested in photographing the desk, file cabinets, bookcase, and credenza. The camera was moved two more times before Drennan was satisfied.

The camera, hidden in a fake smoke detector, began operating in December 1998. It had no audio capabilities and was positioned to take pictures of Pasquini's desk, computer, file cabinet, credenza and bookcase at the rate of one frame every three seconds.³ Pasquini's conference table was not in view, and Drennan testified there was no place other than the conference table for someone visiting Pasquini to sit. Twenty-four hours of taping filled one eight-hour videotape. Lloyd changed the tapes each morning, Monday through Friday. No taping was done over the weekend.

Lloyd testified he ran out of tapes on a couple of occasions when Drennan had not returned the tapes to him. On those occasions the camera was not operating. There were also times when the camera was not working because Lloyd was too busy to change the tapes. Drennan testified that he reviewed the tapes, but never saw "any two-party communication at any time while . . . watching any of [the] tapes." Nor was his intention to watch what Mr. Pasquini was doing. Lloyd testified he recalled seeing one of the videotapes, but did not recall seeing anyone in the picture. However, he told a defense investigator he remembered seeing people coming in the room, but only recognized Pasquini.

Drennan directed Lloyd to stop taping in mid March. The tapes had uncovered no evidence of a break-in of the office. Drennan instructed Lloyd to destroy the tapes and none of them survived to be admitted in evidence.

Pasquini testified that various agencies such as the sheriff's and police department used his office to conduct interviews. Teachers often had discussions with parents in the office as well. Usually, the door would be closed during these discussions. Pasquini felt the conversations which took place in his office were confidential in nature. One student testified he carried on several confidential conversations with Pasquini between November 1998 and March 15, 1999.

A jury found Drennan guilty of violating section 632, subdivision (a). The court sentenced Drennan to three years felony probation on condition he serve 10 days in the county jail and pay fines and restitution in the sum of $7,010. The court stayed the jail time pending this appeal.

DISCUSSION

At issue is whether the prohibition on eavesdropping upon a confidential communication, contained in section 632, subdivision (a), extends to the taking of timed, still photographs, without accompanying sound.

We conclude it does not, nor does section 632 protect a general right of privacy from unconsented videotaping. Such a right enforced by penal sanctions is to be found in another section of the Penal Code, section 647, subdivision (k).

The trial court instructed the jury that "[c]ommunication . . . is not limited to conversations or oral communications, but rather encompasses any communication regardless of its form, including, but not limited to actions and signs where any party to the communication desires it to be confined thereto."

No evidence was presented that the videotaped photographs captured an image of persons communicating to anyone by means of actions or signs the content of which could be deciphered. There was evidence that between November 1998 and March 1999, Pasquini's office was used to conduct confidential conversations. Although there is no direct evidence that such conduct was in fact photographed, it is inferred that it did occur in the manner permitted by the method and extent of the videotaping. Consistent with this inference, the People contend that section 632 prohibits the mere taking of the pictures of persons engaged in a confidential communication, and the term "recording" need not include the content of the communication.⁴

The People rely on People v. Gibbons (1989) 215 Cal.App.3d 1204, from which their theory was apparently derived. Gibbons held that a defendant who secretly videotaped his acts of sexual intercourse with various women violated the statute. Gibbons reasoned it "cannot be readily disputed" that "sexual relations is a form of communication, be it communication of love, simple affection, or, simply of oneself . . . ." (Id. at p. 1209.) It acknowledged that "certain terms used in the privacy act, such as 'eavesdropping,' 'amplifying device' and 'telephone,' might suggest a narrow definition of communication, synonymous with conversation. However, [the court said] Penal Code section 630 expressly states the intent of the Legislature to protect the right of privacy of the people of this state. Consistent with the express declaration of intent and in the absence of any express statutory limitations, we find that 'communication' as used in the privacy act is not limited to conversations or oral communications but rather encompasses any communication, regardless of its form, where any party to the communication desires it to be confined to the parties thereto." (Ibid.)

We disagree both with this manner of statutory construction and with the conclusion reached.

In interpreting a statute, the touchstone of meaning is the language used by the Legislature. (Zabetian v. Medical Board of California (2000) 80 Cal.App.4th 462, 466.) If the language is clear and unambiguous, we need not engage in judicial construction. "Whether that is the case can be determined only when the language is sought to be applied to the case at hand. Each party will normally advance a candidate meaning of consequence to the party's position. If it cannot be determined from the language of the statute which is the correct application, extrinsic aids may be employed bearing on the objects to be achieved, the evils to be remedied, and the legislative history of the enactment. [Citation.] We call this an inquiry into legislative intent, i.e., an inquiry into the plausible meanings to be ascribed to the language in view of the history and context of the legislation. It does not sanction a judicial construction predicated upon a perceived policy which is not within the semantic constraints of the statutory language. 'The Legislature may make no law except by statute . . . .' (Cal. Const., art. IV, 8, subd. (b).)" (Id. at pp. 466-467, fn. omitted.)

In this case the language of both sections 630 and 632 rule out the construction placed upon the term "communication" by the Gibbons court. Section 632, subdivision (a), states in relevant part:

"Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment."⁵

The statute is replete with words indicating the Legislature's intent to protect only sound-based or symbol-based communications. The rule of statutory construction, noscitur a sociis, a word takes meaning from the company it keeps, is useful here. "A word of uncertain meaning may be known from its associates and its...