Filed 1/26/15 P. v. Weger CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F066211
Plaintiff and Respondent,
(Super. Ct. No. CRM019250)
v.
PHIL ROGER WEGER, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Merced County. Donald J.
Proietti and Ronald W. Hansen, Judges.†
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Doris A. Calandra, Deputy Attorneys General, for Plaintiff and Respondent.
† Judge Proietti presided over appellant’s motion to suppress hearing; Judge Hansen
presided over appellant’s trial.
-ooOoo-
INTRODUCTION
Appellant Phil Roger Weger challenges his convictions for first degree burglary
and grand theft. He contends the trial court erroneously denied his motion to suppress
two surreptitiously recorded conversations between himself and the victim, Cynthia
DeBernardi, in which he made admissions regarding the burglary and thefts. He asserts
the admission of the recordings violated the California Invasion of Privacy Act (Pen.
Code, § 630 et seq.) and the Fourth Amendment of the United States Constitution.
We find appellant’s arguments unpersuasive and affirm.
PROCEDURAL BACKGROUND
On January 30, 2012, the Merced County District Attorney’s Office filed an
information charging appellant with first degree burglary (count 1; Pen. Code, § 459 ),1
and grand theft (count 2; § 487, subd. (a)). The following enhancements were further
alleged in both counts: (1) appellant had sustained two prior convictions (§§ 1170.12 &
1192.7, subd. (c)); (2) the prior felony convictions were “serious felonies” (§§ 1170.12 &
667, subd. (a)(1)); and (3) he had sustained three prior felony convictions for which he
served separate prison terms and failed to remain free of prison custody for a period of
five years (§ 667.5, subd. (b)).2 Appellant pled not guilty.
Before trial, appellant moved to suppress two recorded conversations that occurred
on or about August 2 and August 6, 2011, between himself and his ex-girlfriend,
DeBernardi, who was the victim of the charged crimes. Appellant sought exclusion
under sections 632 and 1538.5. On June 28, 2012, the trial court conducted a hearing on
1 All further statutory references are to the Penal Code unless otherwise noted.
2 Prior to trial, the prosecutor dismissed two of the enhancements in count 2 alleging
that appellant had previously been convicted of a “serious felony” under sections 1170.12
and 667, subdivision (a)(1).
2.
appellant’s motion to suppress, which was denied. A detailed account of the hearing is
set forth in section I of the Discussion, post.
On September 4, 2012, jury trial commenced, and on September 7, 2012, the jury
found appellant guilty on both counts. Appellant waived his right to a jury trial on the
alleged prison priors and prior strike convictions, which the trial court found true. On
November 20, 2012, appellant was denied probation and sentenced to 12 years on count 1
with the imposition of two prior strike allegations3 attached to that count along with one
prior prison term enhancement for an aggregate sentence of 23 years. Appellant was
sentenced to six years on count 2 with three additional years from three prior prison term
enhancements for a total of nine years, which the trial court stayed pursuant to section
654.
FACTUAL BACKGROUND
Appellant does not challenge the sufficiency of the evidence supporting his
convictions. Set forth below is a summary of the trial facts taken in the light most
favorable to the judgment.
DeBernardi lived in a double-wide mobile home on American Avenue in Hilmar
(Merced County). She was romantically involved with appellant off and on for about two
or three years. Appellant would occasionally stay with her in Hilmar.
On July 19, 2011, DeBernardi decided to end the relationship and she told
appellant to pack up his belongings. As he was packing, appellant said she would “be
sorry” and she would not know what he meant until “it [was] done.” She drove appellant
to the Bay Area to a residence where he lived with his daughter. During the drive,
appellant seemed very upset and continued to threaten that she would “be sorry.”
DeBernardi dropped appellant off at the Bay Area residence at approximately 11:30 p.m.
3 The trial court struck one of the charged prior strike convictions.
3.
on July 19, 2011. It took approximately an hour and a half to make the commute.
Appellant asked DeBernardi to contact his ex-wife so he could get his truck back from
her.
DeBernardi spent the night of July 19, 2011, with her mother in the Bay Area, and
she drove home the following evening, arriving home after dark. Upon arriving home,
she noticed things had been moved in her house and $500 was missing, which was inside
a little box in her nightstand drawer. She contacted law enforcement that night.
The following day, DeBernardi realized 15 to 20 pieces of jewelry were missing,
consisting of costume jewelry, a “little gold pacifier” her husband gave her when her first
baby was born, and various bracelets, rings and earrings. She also discovered the
doorknob and lock on the back door was completely knocked out, something she did not
notice on the first night when she initially reported the theft. She discovered a shed near
her trailer had been broken into as well. She prepared a property list, which she gave to
law enforcement.
At some point after realizing her jewelry was missing, DeBernardi contacted
appellant on the telephone and asked him why he did it and when she could get her
jewelry back. Appellant admitted he took her jewelry and said he would bring some of it
back. Appellant also told her he gained entrance to her residence using a butter knife and
then in a later conversation he said he used a “jiggler” that he made.
On July 25, 2011, appellant returned some of the cheaper “costume jewelry” back
to DeBernardi. He told her the more expensive items were gone and he brought her “the
junk.”
On July 26, 2011, DeBernardi realized her father’s antique silver dollar collection
was also missing, which included paper money in an unknown amount. There were
approximately one hundred coins, some of which she estimated were worth thousands of
dollars. After noticing the coins were missing, DeBernardi met with Deputy Sheriff
4.
Vince Gallagher, who advised her to purchase a recorder and attempt to get appellant to
explain what happened.
On August 2, 2011, DeBernardi recorded appellant on the telephone. The
recording was played for the jury. In the first recording, appellant denied stealing from
her but also said he was “working” on getting back the rest of her jewelry.
The following evening, DeBernardi recorded appellant again as they sat together
in her car. The second recording was played for the jury. During the second recording,
appellant stated he took “it all” in one shot and “sold some of it.” Appellant stated he
sold “[a] couple hundred bucks worth of shit. $250 or something.” When asked why he
took the stuff rather then ask her for it, appellant stated, “I needed it.” Appellant
described how he gained access to DeBernardi’s home with “a shaker” and a friend
helped him but only appellant stole the items. Appellant admitted he sold the coins at a
coin shop and received about $2,000 for them. When asked about the jewelry, appellant
said he got about $200 or $250 for them.
DISCUSSION
Appellant contends the trial court erred in not suppressing the two recorded
conversations he had with DeBernardi. He argues their admission violated section 632,
subdivision (d), and his reasonable expectation of privacy under the Fourth Amendment.
I. Hearing on Appellant’s Suppression Motion.
DeBernardi testified at the hearing for appellant’s suppression motion. Before she
took the witness stand, the prosecutor argued the recordings were admissible under
section 633 of the California Invasion of Privacy Act and cited People v. Towery (1985)
174 Cal.App.3d 1114 (Towery) as support. The prosecutor contended DeBernardi
recorded appellant at the direction of law enforcement. Regarding the Fourth
Amendment claim, the prosecutor cited People v. Brandow (1970) 12 Cal.App.3d 749
(Brandow) and Hoffa v. United States (1966) 385 U.S. 293 (Hoffa) as support that
suppression was not required.
5.
Defense counsel argued DeBernardi did not record appellant “at the behest of law
enforcement,” but did so on her own and brought the evidence to law enforcement after
the fact. Defense counsel also referenced Towery as support that the recordings were
inadmissible.
A. DeBernardi’s testimony at the suppression hearing.
DeBernardi testified she suspected appellant was responsible for the burglary that
took place at her house in July of 2011. She spoke with appellant after the burglary,
which she did not record. At some point, she spoke with Deputy Sheriff Gallagher, who
told her she could record appellant’s conversation. DeBernardi recorded two
conversations with appellant, which occurred “back-to-back within 24 hours of each
other.”
She was in contact with Gallagher “throughout the whole process.” Gallagher told
her what type of recorder to purchase and “what to do.” She purchased her own digital
recorder.
On cross-examination, she testified she did not meet with Gallagher after the first
recording because the two recorded conversations were within 24 hours of each other.
She confirmed she recorded appellant under Gallagher’s instruction but Gallagher was
not with her when the recordings occurred. She questioned Gallagher if it was legal to
record appellant and he informed her it was not illegal because it was under the
investigation of a crime.
B. Additional evidence at the suppression hearing.
The prosecution asked the court to refer to the transcript of the preliminary hearing
at page 14, lines 22 through 24, for Gallagher’s testimony. The court did so and read that
section into the record as follows: “Q[uestion:] And the recording was done at your
direction; right? [¶] A[nswer:] Yes.” The prosecutor also directed the court to review
Gallagher’s police report on this matter for clarification of dates and the timing of when
the recordings were given to law enforcement. The parties submitted the matter.
6.
C. The trial court denies the suppression motion.
The court read Towery and stated it found “many similarities” between the
situation in Towery and appellant’s circumstances. The court noted law enforcement did
not provide the recording equipment in both Towery and appellant’s situation. The court
commented that the person who recorded the conversation in Towery was directed and
supervised “very loosely” by law enforcement. The court also stated Brandow was cited
in Towery for the proposition the Fourth Amendment “does not protect a wrongdoer’s
misplaced belief that a person to whom he voluntarily confides his wrongdoing will not
reveal it.”
The court ruled: “Based upon the testimony and evidence presented, what the
Court has considered, I find that there is sufficient evidence to support that the tape
recordings as described were directed, although loosely, but in compliance with the
Towery decision and by Penal Code Section 633. The Court finds that the tape
recordings are not illegal evidence that was recorded, and, therefore, the motion to
suppress is denied.”
II. Appellant’s Fourth Amendment Rights Were Not Violated.
Appellant argues he had a reasonable expectation of privacy in his
communications with DeBernardi. He contends the Fourth Amendment was violated
when his conversations were recorded without a warrant.
A. Standard of review.
“The Fourth Amendment protects ‘[the] right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures.’”
(California v. Ciraolo (1986) 476 U.S. 207, 217.) “The touchstone of Fourth
Amendment analysis is whether a person has a ‘constitutionally protected reasonable
expectation of privacy.’” (Id. at p. 211, quoting Katz v. United States (1967) 389 U.S.
347, 360 (Katz).) The Fourth Amendment prohibits unreasonable searches and seizures,
and it is per se unreasonable to conduct a search without prior judicial approval absent a
7.
few specific exceptions. (Mincey v. Arizona (1978) 437 U.S. 385, 390; accord Robey v.
Superior Court (2013) 56 Cal.4th 1218, 1224.) The Fourth Amendment requires state
and federal courts to exclude evidence obtained from unreasonable government searches
and seizures. (People v. Williams (1999) 20 Cal.4th 119, 125.) Section 1538.5 allows a
defendant to move to suppress evidence obtained in an improper seizure.
“The standard of appellate review of a trial court’s ruling on a motion to suppress
is well established. We defer to the trial court’s factual findings, express or implied,
where supported by substantial evidence. In determining whether, on the facts so found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. [Citations.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
B. Analysis.
Three cases, Hoffa, supra, 385 U.S. 293, Brandow, supra, 12 Cal.App.3d 749 and
People v. Phillips (1985) 41 Cal.3d 29 (Phillips), are instructive regarding the scope of
Fourth Amendment protection for a defendant’s private conversations involving criminal
activity.
In Hoffa, the United States Supreme Court examined whether the Constitution
required suppression of evidence which the government obtained “‘by means of
deceptively placing a secret informer in the quarters and councils of a defendant’” which
was then used in a subsequent trial against the defendant. (Hoffa, supra, 385 U.S. at p.
295.) The evidence in Hoffa came from a government informant who had close
connections to the defendant James Hoffa. The informant testified at trial he was present
when Hoffa and others discussed making bribes to a previous federal jury. (Id. at p. 296.)
Hoffa argued, inter alia, his Fourth Amendment rights were violated because the informer
failed to disclose his connection to the government, thereby vitiating any consent Hoffa
gave for his presence at the locations where the conversations took place. (Id. at p. 300.)
Hoffa contended the informer conducted an illegal Fourth Amendment “‘search’” for
verbal evidence. (Ibid.)
8.
The Hoffa court held the defendant had “no interest legitimately protected by the
Fourth Amendment” because the informer was invited to the conversations. (Hoffa,
supra, 385 U.S. at p. 302.) The informer “was not a surreptitious eavesdropper.” (Ibid.)
The Hoffa court made it clear that no Fourth Amendment violation occurred because the
defendant “was relying upon his misplaced confidence that [the informer] would not
reveal his wrongdoing.” (Ibid.) The court further noted it had never “expressed the view
that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to
whom he voluntarily confides his wrongdoing will not reveal it.” (Ibid.)
Similarly, in Phillips, supra, 41 Cal.3d 29, our Supreme Court found no Fourth
Amendment expectation of privacy when a suspect voluntarily disclosed information to a
confidant. (Id. at p. 52.) In Phillips, the defendant was a fugitive when he spoke with an
acquaintance on the telephone. The acquaintance alerted law enforcement, who asked
him to record a telephone conversation with the defendant on a tape recorder. (Id. at p.
51.) The acquaintance recorded a telephone conversation with the defendant on his tape
recorder, which was subsequently admitted against the defendant at trial. (Id. at pp. 51-
52.) On appeal, the Phillips court rejected a claim the recording constituted an
unreasonable search. The court stated “a defendant has no constitutionally protected
expectation that his confidant will not reveal a conversation to the police, and the
recording merely corroborates and assures the accuracy of the confidant’s later
testimony.” (Id. at p. 52.) Moreover, the Phillips court noted a defendant extends his
“zone of privacy” when he takes a companion into his confidence and there is “no
constitutional principle that prohibits the recipient of a confidence from breaching the
trust reposed in him not to disclose it to others, including the police.” (Id. at p. 53.)
Finally, in Brandow, supra, 12 Cal.App.3d 749, a police officer furnished a
prostitute with a tape recorder after she agreed to help police in a crackdown on criminal
pandering, pimping and prostitution. The prostitute recorded conversations of various
individuals who called her using her private unlisted telephone line. The police officer
9.
visited the prostitute almost daily, and reviewed with her the contents of the tape
recordings and the activities since the last visit. (Brandow, supra, 12 Cal.App.3d at p.
752.) The prostitute recorded conversations with approximately 60 different people and
obtained identifiable tapes of approximately 45 different persons, including the
defendant. The prostitute testified at trial, and the tape recordings were played to the
jury. On appeal, the Brandow court rejected the defendant’s claim the surreptitious tape
recordings constituted an illegal search, citing Hoffa, supra, 385 U.S. 293, and other
Supreme Court decisions. (Brandow, supra, at p. 753.) The Brandow court also noted
the recordings were properly admissible as corroborating the prostitute’s testimony under
the “well established” rule that a conversation may be monitored when one person to the
conversation consents. (Ibid.)
Here, like in Hoffa, Phillips, and Brandow, appellant cannot establish a Fourth
Amendment violation because he voluntarily disclosed his criminal activity to
DeBernardi. As the Hoffa court stated, no Fourth Amendment violation occurred because
appellant had “misplaced confidence” his ex-girlfriend and the victim of his criminal
activity would not reveal his wrongdoing. (Hoffa, supra, 385 U.S. at p. 302.) The
Supreme Court has not extended Fourth Amendment protection to “a wrongdoer’s
misplaced belief that a person to whom he voluntarily confides his wrongdoing will not
reveal it.” (Ibid.; see Phillips, supra, 41 Cal.3d at p. 52.)
Appellant, however, attempts to distinguish Hoffa, Phillips and Brandow by
repeatedly arguing DeBernardi was neither an accomplice, co-conspirator, nor an
informer, and he did not discuss ongoing or contemplated criminal activity with her. As
a result, appellant asserts he could not have assumed a “risk” existed when he spoke with
DeBernardi, his former girlfriend, that she would divulge their private conversations.
Appellant’s arguments have no weight because the holdings in Hoffa, Phillips and
Brandow are not contingent on whether or not it was an informer or co-conspirator who
participated in the private conversations with the respective defendants. Further, it is
10.
immaterial whether or not on-going criminal activity was discussed. Indeed, in Phillips,
the defendant was recorded by an acquaintance who was not criminally involved with the
defendant and the defendant was wanted for past criminal activity. (Phillips, supra, 41
Cal.3d at pp. 42, 51.) Instead, these cases make it clear no Fourth Amendment
expectation of privacy exists for voluntary disclosure of information to a confidant.
(Hoffa, supra, 385 U.S. at p. 303; Phillips, supra, 41 Cal.3d at p. 53; Brandow, supra, 12
Cal.App.3d at p. 753.)
Appellant, however, further asserts he had a reasonable expectation his
communications with DeBernardi were private, confidential and would not be recorded.
He relies generally on Katz, supra, 389 U.S. 347 and Flanagan v. Flanagan (2002) 27
Cal.4th 766 (Flanagan) to support his contention the warrantless recordings were
unreasonable. Appellant’s reliance is misplaced as those cases are readily distinguishable.
In Katz, supra, 389 U.S. 347, the United States Supreme Court held a Fourth
Amendment violation occurred when federal agents planted an electronic listening and
recording device outside a public telephone booth and overheard the defendant
transmitting wagering information. (Id. at pp. 348, 359.) Based on the facts, Katz is of
no consequence to the present analysis. It is undisputed DeBernardi was neither a
government agent nor someone who intruded upon appellant’s seclusion and planted a
recording device. (See Hoffa, supra, 383 U.S. at p. 301 [Fourth Amendment protects
against intrusion into a protected area such as a person, home, office, hotel room or an
automobile].)
We are also unpersuaded by Flanagan, supra, 27 Cal.4th 766, in which an
estranged wife began taping all of her husband’s conversations with their grandson, who
sued on the grounds that the wife recorded confidential communications without his
consent in violation of the California Invasion of Privacy Act (§ 630 et seq.). The jury
found that 24 calls were confidential and awarded damages. The Court of Appeal
reversed and limited the damage award. On review, our Supreme Court examined the
11.
definition of “confidential communication” as stated in section 632. (Flanagan, supra,
27 Cal.4th at p. 772.) The Flanagan court examined the prior decisions construing
section 632, and it determined that the decisions of Frio v. Superior Court (1988) 203
Cal.App.3d 1480 and Coulter v. Bank of America (1994) 28 Cal.App.4th 923 were
correct; that is, “a conversation is confidential if a party to that conversation has an
objectively reasonable expectation that the conversation is not being overheard or
recorded. [Citations.]” (Flanagan, supra, 27 Cal.4th at p. 768.)
Using the definition of “confidential communication” endorsed by Flanagan,
appellant attempts to argue DeBernardi’s “warrantless recording was unreasonable” and
infringed on an interest “that the Fourth Amendment was designed to protect.” This
argument is without merit because Flanagan did not use this definition as a basis to
extend Fourth Amendment protection. Flanagan was a civil action that did not involve
criminal charges or constitutional analysis. Flanagan is distinguishable and has no
bearing on whether defendant had a reasonable expectation of privacy under the Fourth
Amendment.
As discussed under Hoffa, Phillips, and Brandow, appellant had no reasonable
expectation of Fourth Amendment privacy when he voluntarily disclosed his criminal
activity to his former girlfriend, who was the victim of the very crimes he discussed with
her. As such, appellant cannot establish his Fourth Amendment rights were violated or
that he was “unlawfully seized” as he contends. Thus, the trial court properly denied his
motion to suppress under constitutional grounds.
III. California’s Wiretapping Statute Did Not Require Suppression Of The
Recordings.
Appellant next contends the trial court violated the California Invasion of Privacy
Act (§ 630 et seq.), by admitting DeBernardi’s recordings. He maintains the trial court
misapplied section 632, subdivision (d), when finding the recordings were admissible.
12.
A. Standard of review.
The California Invasion of Privacy Act regulates wiretapping and electronic
eavesdropping, and prohibits the electronic eavesdropping or recording of any
“confidential communication” absent consent of all parties to the communication.4
(Flanagan, supra, 27 Cal.4th at pp. 768-769; Kight v. CashCall, Inc. (2011) 200
Cal.App.4th 1377, 1388.) With specified exceptions, the statute bars admission of any
recorded confidential communication in a judicial proceeding. (§ 632, subd. (d)5; People
v. Nazary (2010) 191 Cal.App.4th 727, 746; People v. Nakai (2010) 183 Cal.App.4th
499, 517.) One exception is for law enforcement activity (§ 633).6
Typically an appellate court reviews a trial court’s decision to admit or exclude
evidence under an abuse of discretion standard. (People v. Rodriguez (1999) 20 Cal.4th
1, 9-10.) However, when a trial court, like here, determined section 632 was not violated
as a matter of law, the standard of appellate review is de novo applying section 632 to the
facts of the case. (People v. Nazary, supra, 191 Cal.App.4th at pp. 746-747; People v.
Nakai, supra, 183 Cal.App.4th at p. 517; People v. Ratekin (1989) 212 Cal.App.3d 1165,
1168-1169.)
4 A “confidential communication” is “any communication carried on in
circumstances as may reasonably indicate that any party to the communication desires it
to be confined to the parties thereto . . . .” (§ 632, subd. (c).)
5 “Except as proof in an action or prosecution for violation of this section, no
evidence obtained as a result of eavesdropping upon or recording a confidential
communication in violation of this section shall be admissible in any judicial,
administrative, legislative, or other proceeding.” (§ 632, subd. (d).)
6 Section 633 provides, in relevant part, that nothing in section 632 prohibits “any
sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a
county, . . . or any person acting pursuant to the direction of one of these law enforcement
officers acting within the scope of his or her authority, from . . . recording any
communication that they could lawfully . . . record . . . ,” and nothing in section 632
“renders inadmissible any evidence obtained by the above-named persons by means of ...
recording any communication that they could lawfully . . . record . . . .” (§ 633.)
13.
B. Analysis.
As an initial matter, respondent asserts that the Proposition 8 “Truth-in-Evidence”
provision of the California Constitution7 abrogated the exclusionary rule set forth in
section 632, subdivision (d), citing People v. Algire (2013) 222 Cal.App.4th 219 (Algire).
As such, respondent argues appellant has no grounds for relief under section 632,
subdivision (d), in light of Algire.
In his reply brief, appellant argues the prosecution failed to preserve this issue for
appeal by not raising this assertion in the lower court. In the alternative, appellant
contends Algire was wrongly decided and asks us to disregard Algire and reach the
merits.
We need not determine whether Algire requires us to disregard section 632,
subdivision (d), because on March 19, 2014, the Supreme Court ordered Algire to be
depublished.8 (People v. Algire (Dec. 17, 2013, B244557) review den. and opn. ordered
nonpub. Mar. 19, 2014, S216109.) A depublished case may neither be cited nor relied
upon by a court or a party. (Cal. Rules of Court, rules 8.1115(a) & 8.1105(e).) As such,
we also need not address whether this issue was preserved for appeal. In any event,
appellant’s argument is unpersuasive when the merits are considered.
7 Article I, section 28, subdivision (f)(2), of the California Constitution, part of
Proposition 8, states in relevant part: “Right to Truth-In-Evidence. Except as provided by
statute hereafter enacted by a two-thirds vote of the membership in each house of the
Legislature, relevant evidence shall not be excluded in any criminal proceeding,
including pretrial and post conviction motions and hearings[] . . . .”
8 We note that, aside from Algire, supra, 222 Cal.App.4th 219, Courts of Appeal
continue to recognize section 632, subdivision (d), as a means to prohibit admission of
recordings that violate the California Invasion of Privacy Act. (See People v. Nazary,
supra, 191 Cal.App.4th at p. 746; People v. Nakai, supra, 183 Cal.App.4th at p. 517;
People v. Crow (1994) 28 Cal.App.4th 440, 452; Frio v. Superior Court, supra, 203
Cal.App.3d at p. 1490.)
14.
In denying appellant’s suppression motion, the trial court relied, inter alia, on this
court’s holding in Towery, supra, 174 Cal.App.3d 1114. In Towery, the defendant was
one of six codefendants charged with conspiracy to commit thefts of fuel oil. The
defendant was convicted of two counts of grand theft but found not guilty for conspiracy.
On appeal, the defendant argued the trial court erred in ruling admissible recorded
telephone conversations with a codefendant, Conroy, who recorded conversations with
defendant without defendant’s knowledge. (Towery, supra, 174 Cal.App.3d at pp. 1123-
1124.) The Towery court held the recorded conversations were properly admitted.
The court noted none of the defendants disputed “the well-established rule that a
tape recording of a conversation between a criminal defendant and a third party made
with the voluntary consent of the third party is admissible in a criminal proceeding.”
(Towery, supra, 174 Cal.App.3d at p. 1124, italics in original, citing, generally, People v.
Murphy (1972) 8 Cal.3d 349, 359-361; People v. Fulton (1984) 155 Cal.App.3d 91, 100,
fn. 6; People v. Blend (1981) 121 Cal.App.3d 215, 229.) The Towery court rejected the
defendant’s first argument that Conroy’s consent was “coerced” because he cooperated
with police to avoid criminal liability. Instead, the appellate court found that Conroy
“freely consented to the recording of telephone conversations” and was not coerced
because he voluntarily contacted the police and offered to cooperate with them in the
investigation of the thefts. (Towery, supra, at p. 1125.)
The Towery court next rejected the contention the recorded conversations should
have been excluded pursuant to section 632, subdivision (d). The court determined the
law enforcement exception under section 633 applied even though Conroy used his home
telephone and personal tape recorder to record the conversations, which occurred without
a police officer present when a recording was made. (Towery, supra, 174 Cal.App.3d at
pp. 1126-1127.) The court noted it was reasonable to permit Conroy to make the
recordings at home versus the police station because a sudden change in the telephone
number might create suspicion. (Id. at p. 1129.)
15.
The Towery court observed a law enforcement officer provided Conroy with the
tapes to use, which Conroy turned in to law enforcement on a regular basis, “usually
within a day of recording and never more than three days from the time the tape was
completed.” (Towery, supra, 174 Cal.App.3d at p. 1127.) Law enforcement directed
Conroy “to record all telephone calls dealing with the subject matter of stolen oil, and
Conroy testified that he recorded most of the telephone conversations he received
pertinent to the ongoing investigation.” (Ibid.) The Towery court held the “looseness of
law enforcement direction” was an issue of weight and not initial admissibility of the
tapes. (Id. at p. 1129.) The court finished its analysis noting “[n]o counsel was precluded
at trial from questioning Conroy or [the law enforcement officer] about the manner in
which the tapes were made, nor were they precluded from arguing to the jury that
Conroy, with his significant motivation in cooperating with the police, might have altered
the tapes to further his own interest.” (Id. at p. 1129.)
Here, like in Towery, DeBernardi recorded appellant’s conversations based on
directions from a law enforcement officer to do so. Like in Towery, DeBernardi used her
own recording equipment and telephone to record appellant. Unlike in Towery,
Gallagher did not provide DeBernardi with tapes given the advancement in recording
technology. However, like in Towery, DeBernardi turned over the recordings shortly
after obtaining them and she was in contact with Gallagher “throughout the whole
process.” As such, contrary to appellant’s assertion, Towery is not distinguishable and it
controls. DeBernardi acted “pursuant to the direction” of Gallagher, a deputy sheriff, so
that section 633 was satisfied. (§ 633.)
As the Towery court noted, any “looseness” regarding Gallagher’s direction of
DeBernardi goes to the recordings’ weight and not their admissibility. Defense counsel
was not precluded at trial from questioning both Gallagher and DeBernardi about how the
recordings were made, nor was defense counsel precluded from arguing to the jury
DeBernardi may have had motivation in implicating appellant or altering the recordings.
16.
As such, like in Towery, the trial court properly denied appellant’s motion to suppress as
the recordings did not violate section 632.
Because the court properly denied appellant’s motion to suppress, appellant cannot
establish any error requiring reversal of his convictions under People v. Watson (1956) 46
Cal.2d 818, 836.
DISPOSITION
The judgment is affirmed.
_____________________
LEVY, Acting P.J.
WE CONCUR:
_____________________
KANE, J.
_____________________
POOCHIGIAN, J.
17.