Opinion
For Opinion on Hearing, see 106 Cal.Rptr. 408, 506 P.2d 232.
Opinion on pages 381-384 omitted
HEARING GRANTED
Herbert M. Porter, Laguna Beach, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Division, William E. James, Asst. Atty. Gen., Appeals Section, and James H. Kline and Douglas B. Noble, Deputy Attys. Gen., for plaintiff and respondent.
SCHWEITZER, Acting Presiding Justice.
Defendant Triggs and codefendant Crockett, not a party to this appeal, were charged with a violation of section 288a of the Penal Code. Defendant's motions under sections 995 and 1538.5 of the Penal Code were denied. He waived trial by jury and after court trial was found guilty. Defendant appeals from the judgment (order granting probation), contending that the evidence introduced at trial was obtained as the result of an impermissible general exploratory search and violated his constitutional right to privacy.
A Los Angeles police officer testified that on December 19, 1970 he entered the plumbing access room of a men's restroom in a public park; that through a ventilation shaft he observed defendant orally copulating codefendant Crockett's penis; that prior to observing the two men he had no reason to believe or suspect that either intended to use the restroom for anything other than a lawful purpose; that he had used the ventilation shaft for observation purposed on prior occasions; that there were no doors on the toilet compartment; and that as a result, the activities therein could have been observed by members of the public.
Defendant offered no defense.
In Bielicki v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 371 P.2d 288, and Britt v. Superior Court, 58 Cal.2d 469, 24 Cal.Rptr. 849, 374 P.2d 817, the prohibited sexual conduct between two males occurred within a fully enclosed stall in a restroom and was observed by officers from a vantage point located above the restroom to which point the general public had no access. In each case it was held that the police conducted an unreasonable search. In Britt this conclusion was reached despite the fact that an officer could have seen the illegal activity from within the restroom because the walls and [102 Cal.Rptr. 726] door of the stall did not extend down to the floor.
Subsequent decisions of Courts of Appeal have held that if an officer observed illegal conduct from a vantage point not open to the public, there is no unreasonable search if the illegal activity could have been observed had the officer been in an area open to the public. By its denials of petitions for hearings in those cases, it appears that the Supreme Court has acquiesced in this view and retreated from its position expressed in Britt.
Thus, in People v. Norton, 209 Cal.App.2d 173, 25 Cal.Rptr. 676 (hear. den.) the officer, secreted in a restroom, observed two men committing an illegal sexual act in a doorless stall. In upholding the conviction the court said at page 176, 25 Cal.Rptr. at page 678: 'Had the police entered the public part of the restroom they could have observed such activities in the same way as any member of the public. If appellant had any right of privacy, he certainly waived it.'
Convictions were upheld under similar facts in People v. Young, 214 Cal.App.2d 131, 29 Cal.Rptr. 492, and People v. Hensel, 233 Cal.App.2d 834, 43 Cal.Rptr. 865; in each case the Supreme Court denied a hearing. Thereafter, convictions were upheld under similar facts in four cases, in none of which a hearing by the Supreme Court was sought. (See People v. Crafts, 13 Cal.App.2d 457, 91 Cal.App.2d 754, 72 Cal.Rptr. 457; People v. Roberts, 256 Cal.App.2d 488, 64 Cal.Rptr. 70; and People v. Maldonado, 240 Cal.App.2d 812, 50 Cal.Rptr. 45.)
People v. Metcalf, 22 Cal.App.3d 20, 98 Cal.Rptr. 925, also involved the surreptitious observation by police of illegal activity in a doorless stall of a restroom; however, unlike the foregoing cases, the facts occurred after the effective date of section 653n, Penal Code. In reversing the conviction the court said at page 23, 98 Cal.Rptr. at page 927: 'We believe that the enactment of section 653n enunciates a public policy against clandestine observation of public restrooms and renders it reasonable for users thereof to expect that their privacy will not be surrpetitiously violated. The method of surveillance employed in this case [louvered window], in our opinion, violates the spirit and policy considerations which led to the enactment of section 653n and therefore should not be given this court's sanction.' Apparently no hearing by the Supreme Court was sought by the Attorney General.
Section 653n, Penal Code, provides in pertinent part: 'Any person who installs or who maintains after April 1, 1970, any two-way mirror permitting observation of any restroom, toilet, bathroom, washroom, locker room, fitting room, motel room, or hotel room, is guilty of a misdemeanor.'
In reaching this conclusion the court made no analysis of the cases heretofore cited; it set forth no reasons and cited no authorities for its conclusion. It is to be noted that two-way mirrors were not used by police in any recently reported case; each involved observations through vents, louvers, peepholes, etc. If the Legislature had intended to overrule these cases by enacting section 653n, it could have been more explicit by reference to the types of surveillance used therein, instead of referring to only one type of surveillance that was not involved in the recently reported decisions. We therefore disagree with the conclusion reached in People v. Metcalf, supra, 22 Cal.App.3d 20, 98 Cal.Rptr. 925.
We hold that since two-way mirrors were not used in the instant case, section 653n is not applicable and that this case is governed by principles set forth in People v. Norton, supra, 209 Cal.App.2d 173, 25 Cal.Rptr. 676; People v. Young, supra, 214 Cal.App.2d 131, 29 Cal.Rptr. 492; People v. Hensel, supra, 233 Cal.App.2d 834, 43 Cal.Rptr. 865, and their progeny cited ante.
Judgment (order granting probation) affirmed.
COBEY and ALLPORT, JJ., concur.