Opinion
H042559
12-04-2017
THE PEOPLE, Plaintiff and Respondent, v. COLBY JAMES ISIDRO, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F21347)
Defendant Colby James Isidro's suppression motion was denied, and he pleaded no contest to assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and admitted allegations that he had personally used a firearm (§ 12022.5, subd. (a)), personally inflicted great bodily injury (§ 12022.7, subd. (a)), and committed the assault for the benefit of a gang (§ 186.22, subd. (b)). The court imposed an 18-year prison sentence.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant challenges the denial of his motion to suppress a surreptitious recording of oral statements he made to his cellmate in his prison cell. He claims that his removal from his prison cell and transportation to another part of the prison on a pretext to permit the installation of the recording device was an arrest without probable cause and that the recording was the fruit of that illegal arrest. Defendant also argues that the surreptitious recording violated the Fourth Amendment and federal wiretapping statutes. We reject his contentions and affirm the judgment.
I. Background
In March 2009, Michael Escobar was shot in Watsonville. A .38 caliber bullet was removed from Escobar's leg at the hospital. In June 2009, defendant was arrested for unrelated offenses, and he tried to discard a .38 caliber revolver, which was recovered by the police. A ballistic analysis of the bullet removed from Escobar and the revolver recovered from defendant was inconclusive. In October 2009, defendant was sent to state prison to serve a six-year sentence for the unrelated offenses.
The factual background is taken from defendant's suppression motion. The prosecutor stipulated to these facts with a few additions. None of the additions are relevant to our analysis of defendant's appellate contentions. --------
In June 2011, defendant was imprisoned at California Correctional Center in Susanville (Susanville). His cellmate was a fellow Norteno gang member. Watsonville Police Detective Morgan Chappell contacted Agent John Harrison of the Special Service Unit at Susanville and told Harrison that he was investigating defendant's involvement in the shooting of Escobar. Chappell explained to Harrison that a Santa Cruz County prosecutor wished to have a surreptitious recording device placed in defendant's cell so that after Chappell interviewed defendant the device would capture any admissions that defendant made to his cellmate. Harrison agreed to cooperate with Chappell's plan.
Defendant was removed from his cell on a pretext, shackled, driven to a building two-thirds of a mile away, and placed in a holding cell. After he had been in the holding cell for a while, defendant was unshackled and taken to an interview room where he was interviewed by Chappell in Harrison's presence. Chappell told defendant that he knew that defendant had perpetrated the Escobar shooting. Defendant denied any involvement. While defendant was away from his cell, a surreptitious recording device was installed in a light fixture in his cell. After the interview, defendant was returned to his cell. The following day, the recording device was retrieved. On the recording, defendant can be heard admitting his involvement in the Escobar shooting.
In January 2012, defendant was charged by information with active participation in a criminal street gang (§ 186.22, subd. (a)) and attempted murder with premeditation (§§ 187, 664, subd. (a)) in connection with the Escobar shooting. The information also included firearm (§ 12022.53, subds. (b)-(e)) and gang enhancement allegations.
Defendant sought suppression of his recorded statements on the grounds that they were obtained in violation of (1) the Fourth Amendment, (2) Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968 (Title III), and (3) "the principles in the case of Dunaway v. New York (1979) 4[4]2 U.S. 200, 206-216 . . . ." The court, which found the relevant facts to be "uncontested," denied his suppression motion. It rejected his Fourth Amendment argument and found that Title III did not apply because defendant had not "demonstrated a reasonable expectation of privacy . . . under the . . . uncontested circumstances . . . ." The court emphasized that defendant was "in the general prison population," not in a "private room," when he made the recorded statements.
The prosecution filed an amended information charging defendant with a single count of assault with a firearm, with personal use of a firearm, personal infliction of great bodily injury, and gang enhancement allegations. Defendant entered into a plea agreement under which he pleaded no contest to the assault count and admitted all three enhancement allegations in exchange for an agreed sentence of 18 years in prison. The court imposed the agreed sentence, and defendant timely filed a notice of appeal challenging only the denial of his suppression motion.
II. Discussion
A. No "Arrest"
Defendant claims that his removal from his cell and transportation to another building violated the Fourth Amendment because the police lacked probable cause to arrest him for the shooting of Escobar. Defendant's wrongful arrest claim cannot succeed because the movement of a prisoner from one prison building to another does not amount to an arrest.
Defendant relies on Maryland v. Shatzer (2010) 559 U.S. 98 (Shatzer). Shatzer was a case in which a prisoner had previously been interviewed in prison and had invoked his right to an attorney. Two years later, he was reinterviewed at a prison "in a maintenance room . . . ." (Shatzer, at p. 101.) The only issue in the case was whether, despite Shatzer's prior invocation of his right to an attorney, subsequent interrogation was permitted due to a "break in custody" because Shatzer had been "return[ed] to the general prison population" between the two interviews. (Shatzer, at pp. 100, 110.) The court determined that a break in custody of at least two weeks was sufficient to "shake off any residual coercive effects" of the prior custody and permit reinterrogation. (Shatzer, at p. 110.) The court noted that the "baseline set of restraints imposed" on prisoners does not "create the coercive pressures" such as those that nonprisoners experience when they are taken into custody and interrogated. (Shatzer, at p. 113.) Coercive pressures exist only "[w]hen a prisoner is removed from the general prison population and taken to a separate location for questioning, [since] the duration of that separation is assuredly dependent upon his interrogators." (Shatzer, at p. 113, fn. 8.)
Shatzer tells us nothing about whether a prisoner is arrested when he is moved within a prison. It was solely concerned with the impact of the coercive pressures of interrogation on a defendant's statements to his interrogators. Defendant is not challenging his statements to Chappell. His claim is that his movement from one prison building to another prison building was an arrest without probable cause, which is not remotely addressed by anything in Shatzer. Defendant's reliance on Dunaway v. New York (1979) 442 U.S. 200 (Dunaway) is also misplaced. Dunaway did not involve the movement of a prisoner within a prison. The defendant in Dunaway was taken into custody at a neighbor's house; he was not in any kind of custody before the police arrested him and transported him to the police station for questioning. (Dunaway, at p. 203.)
We agree with the Attorney General that defendant's contention cannot succeed in light of People v. Hill (1992) 3 Cal.4th 959 (Hill), overruled on a different point in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13. In Hill, the defendant was in jail after having violated his probation for an unrelated conviction, and the police obtained a removal order from the court permitting them to transport him to the police station for questioning. (Hill, at p. 972.) The California Supreme Court rejected the defendant's claim "that his transfer from one facility to another was an arrest or detention that required probable cause." (Hill, at p. 978.) "Of course, defendant was not free to leave. He was already properly in custody for an unrelated offense. That is why his argument must fail. The transfer from one jail to another did not effect a seizure of defendant for the obvious reason that he was already lawfully in custody. Likewise, 'An arrest is taking a person into custody, in a case and in the manner authorized by law.' (Pen. Code, § 834.) Because defendant already was lawfully in custody, he was not taken 'into custody' when he was transferred, and the transfer was not an arrest." (Hill, at p. 979, italics added.)
Defendant claims that Hill is distinguishable because the police in Hill had "a court order" and the defendant in Hill was not a "sentenced prisoner." Neither of these distinctions has any relevance to the analysis employed by the California Supreme Court in Hill. Defendant, like the defendant in Hill, was "already lawfully in custody" when he was "transfer[red] from one facility to another" and therefore no "seizure" occurred. The removal order in Hill, which did not require probable cause, and the precise reason why the defendant in Hill was "lawfully in custody," whether to serve his sentence or to await a probation violation hearing, played no role in the California Supreme Court's analysis. It held that the movement of a defendant who is already "lawfully in custody" "from one facility to another" does not constitute a "seizure," is not an arrest, and does not require probable cause. Since defendant was already lawfully in custody, his movement from one prison building to another did not constitute a seizure, was not an arrest, and did not require probable cause.
B. Fourth Amendment
Defendant maintains that the Fourth Amendment was violated by the placement of the recording device in his cell without a warrant or other prior judicial authorization.
"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." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
"The Fourth Amendment protects against unreasonable searches and seizures. [Citation.] Its purpose is to 'safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.' [Citation.] 'The touchstone of Fourth Amendment analysis is whether a person has a "constitutionally protected reasonable expectation of privacy." ' [Citation.] The analysis consists of a two-part inquiry: 'first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?' " (People v. Maury (2003) 30 Cal.4th 342, 384.) "The Fourth Amendment is not violated unless a legitimate expectation of privacy is infringed." (People v. Clark (1993) 5 Cal.4th 950, 979, disapproved on a different point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) " 'The legitimate expectation of privacy must exist in the particular area searched or thing seized in order to bring a Fourth Amendment challenge.' " (People v. McPeters (1992) 2 Cal.4th 1148, 1171.)
Defendant relies on United States v. Cohen (2d Cir. 1986) 796 F.2d 20 (Cohen). Cohen was a pretrial detainee when his jail cell was searched without a warrant by a corrections officer at the behest of a prosecutor. (Cohen, at p. 21.) The Second Circuit Court of Appeals held that a pretrial detainee retained a reasonable expectation of privacy in his jail cell that was limited only by the need for institutional security. "Because his effects were searched at the instigation of non-prison officials for non-institutional security related reasons, the validity of the search may be challenged." (Cohen, at p. 24.)
We are not bound by the Second Circuit's decision in Cohen (People v. Bradley (1969) 1 Cal.3d 80, 86), but we are required to follow the California Supreme Court's decision in People v. Davis (2005) 36 Cal.4th 510 (Davis) rejecting Cohen. (Davis, at p. 527; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) In Davis, the California Supreme Court held that "persons held pretrial in a jail . . . have no expectation of privacy . . . ." (Davis, at p. 527.) The court explicitly held that this principle applied to both "pretrial detainees" and "convicted prisoners" and "regardless of the purpose of the search" (Ibid.) Thus, there is no basis for defendant's assertions that Davis is distinguishable because the defendant in Davis was a pretrial detainee, not a convicted prisoner, and the recording of his jail cell conversations had a more urgent purpose than the recording of defendant's admissions. Neither of these facts distinguishes the analysis in Davis because the California Supreme Court explicitly held that these facts were irrelevant to its analysis in Davis. We reject defendant's Fourth Amendment claim.
C. Title III
Defendant's final claim is that the recording of his conversation in his cell violated Title III.
Title III prohibits the intentional interception of an "oral . . . communication." (18 U.S.C. § 2511(1)(a).) " '[O]ral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . ." (18 U.S.C. § 2510(2), italics added.) " '[I]ntercept' means the aural or other acquisition of the contents of any . . . oral communication through the use of any electronic, mechanical, or other device." (18 U.S.C. § 2510(4).) "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court . . . ." (18 U.S.C. § 2515.)
Defendant contends that it is "well settled" that Title III applies to prisoners in prison. None of the cases he relies on involved the admissibility under Title III of "oral communication." Instead, these cases concerned recordings of telephone conversations. (People v. Kelley (2002) 103 Cal.App.4th 853, 857; United States v. Hammond (4th Cir. 2002) 286 F.3d 189, 191; United States v. Van Poyck (9th Cir. 1996) 77 F.3d 285, 290-291; United States v. Amen (2d Cir. 1987) 831 F.2d 373, 378; United States v. Paul (6th Cir. 1980) 614 F.2d 115, 116 & fn. 2; Campiti v. Walonis (1st Cir. 1979) 611 F.2d 387, 392.) Unlike telephone conversations, oral communications are protected by Title III only where the conversants have a reasonable expectation that their oral communication cannot be overheard. Since none of the cases cited by defendant concerned this requirement, they add nothing to his argument.
The issue before us is whether the trial court erred in rejecting defendant's claim that he had a reasonable expectation that his oral communication with his cellmate could not be overheard. Defendant concedes that a prison guard "just outside of defendant's cell . . . might have been able to hear what defendant was saying to his cell mate . . . ." (Italics added.) His argument is that he "could [not] have reasonably expected" that his conversation was "subject to interception by way of a surreptitiously planted recording device . . . ." The application of Title III does not hinge on the conversant's knowledge of the specific means of interception. If it would be unreasonable for the conversant to believe that the conversation could not be overheard, Title III does not bar any means of interception of the oral communication. Since no reasonable prisoner would have expected that defendant's prison cell conversation with his cellmate could not be overheard by a nearby prison guard, Title III did not apply.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.