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Court of Appeal, Sixth District, California.

The PEOPLE, Plaintiff and Respondent, v. Brenda Sue OTTO, et al., Defendants and Appellants.

No. H004612.

Decided: January 25, 1991

Laurance S. Smith and Mark L. Christiansen, under appointment by the Court of Appeal, Sacramento, for defendants and appellants. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., Morris Beatus, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Defendants Brenda Otto and Marvin Mark were charged by information with the murder of Brenda's husband Joe Otto (Pen.Code, § 187).   Pursuant to Penal Code section 995,1 defendants moved to set aside the information on the basis that the victim's unlawful interception of their telephone conversations rendered the resulting tape recordings inadmissible under Title 18, United States Code Annotated, sections 2510 et seq.2  A jury found both defendants guilty of first-degree murder.   Each defendant was sentenced to the statutory term of 25 years to life.



At about 3 p.m. on October 13, 1986, Joe Otto went to his neighbor Scott Kennedy's house to discuss a “personal matter.”   Scott, a San Jose police officer, listened as Joe, who was very upset, played the so-called “whispering tape” recording of a conversation between his wife Brenda and someone named “Mr. Mark.”   The male voice called Brenda “honey,” made reference to everything being wrong, to seeing items covered with sheets outside which someone must be watching, to an accident on the corner, and to a party in progress across the street, and then said “I tried every way possible.”   When the male reacted negatively to finding out Brenda was calling from home, she explained she had “learned how to unplug it.”   Later in the tape, the male voice said, “I got a better plan.” 3

References in the tape placed the time of the recording as Saturday night, October 11th.   A neighbor's party was in progress when Scott returned home at 1:30 or 2 a.m. on the 12th, the Ottos had had a garage sale the preceding day and had left unsold items outside covered by sheets, and a car accident, which occurred nearby at 11:10 p.m. Saturday night, was not cleared until midnight.

Joe also played the whispering tape to his daughter Jolynn who lived with the Ottos while working night shift at Agnews State Hospital.   Joe told Jolynn the tape was made after he went to bed;  Jolynn recalled finding the front door unlocked Sunday morning when she returned from work although her father said he had locked it before retiring.

On Tuesday, October 14th, Jolynn warned her father that Brenda had asked about her work schedule.   Joe said Brenda also talked with him about Jolynn's schedule.   Concerned, Jolynn and Joe decided Jolynn would tell Brenda she was tired and would leave work early that night if enough hospital staff were present.   It was agreed Joe would confront Brenda the next day about his suspicions.

Joe and Jolynn returned home at 6:45 p.m. and found the front door unlocked, the kitchen door wide open, and the dog running around the house.   Alarmed, Joe checked the house with his gun.   He returned to Jolynn with a tape full of conversation recorded by the voice-activated tape machine under Jolynn's bed.   When Brenda drove up, Jolynn suggested Joe play the tape that evening in a tape player she would leave in one of their cars.

As planned, Jolynn mentioned to Brenda her intentions to leave work early that night.   Brenda appeared visibly disturbed by the turn of events:  “Her back was ․ to me.   She dropped a utensil of some sort and turned and scowled and said, you are not going to work?   Like that.”   Brenda said it in a “[d]efinite way.”

Jolynn left at 7:30 p.m. to have dinner with her stepfather.   She did not return home early.   When she did return, her father was dead.

Shortly after 11:50 p.m. on October 14th, Scott was told by his wife Kim that someone was at their door.   He looked outside and saw Brenda, who was naked.   Although a towel was tied securely around her neck and her hands were tightly bound behind her, Brenda was “just standing there” and was not crying or visibly upset.   After obtaining a pistol, Scott answered the door and admitted Brenda, who screamed, “you have to help Joe.   I think they've killed him or he's hurt.   Somebody has broken in.”   Scott testified that Brenda “was screaming quite erratically.”

While Scott went out to look for two vehicles Joe had told him about, a 1970's blue Cadillac and a 1970's brown truck, both with Utah plates, Brenda wrapped herself in a blanket and Kim, a Santa Clara County Deputy Sheriff, untied Brenda's bindings.   In undoing the tightly knotted belt, Kim saw no marks on Brenda's hands or wrists.   Nor did she observe any blood or marks of injury, except what appeared to be a rug burn on Brenda's right forearm and elbow and an indentation mark on the left upper shoulder blade which suggested Brenda had been lying on something for a period of time.   According to Kim, there was no blood or moisture of any kind on Brenda's face or hair.

Both Kennedys reported smelling the odor of someone having had sex;  Scott said Brenda smelled of semen;  Kim detected a similar odor on the freshly laundered blanket which had been wrapped around Brenda.

Brenda recounted that she had fallen asleep while watching TV with Joe but was awakened with the feeling of “stuff” on her face and the presence of two people hurting Joe.   Telling this story, Brenda seemed upset but not crying, breathing deeply but talking quite loudly.   However, Kim noticed that every time she was on the phone to the police Brenda stopped sobbing or breathing deeply and became very quiet.   Brenda also seemed unusually “intent” on watching the activities of the police, looking out the Kennedys' window to see what they were doing.   When she learned Kim was also a police officer, Brenda's sobbing increased.

Officer Wininger arrived at 12:28 a.m. October 15th, and obtained an initial report from Brenda that two Latino men had broken into the house and possibly killed Joe.   She said she had been tied up but managed to escape.   In a second statement, Brenda reported she had been watching the 11 o'clock news with Joe, heard barking, went outside to feed the dog, and returned after about 10 minutes.   Joe woke up, smiled, and fell back to sleep in his chair.   Right after that she saw a large Latino man “come out of nowhere” and stand next to Joe.   Brenda heard a loud noise like two logs banging together;  at the same time, she felt something sprayed on her face.   As she tried to flee, the intruder struck her on the left side of her face with his hand.   Maintaining her balance, she headed for the door when a second man grabbed her house coat, ripped off her bra, and knocked her back onto a wrought iron fixture, following which she passed out.   She regained consciousness to find her hands tied behind her back and her ankles tied with her panty hose.   Calling out to Joe, she received no response.   Eventually she untied her feet and reached the Kennedy house.

The officers found Joe dead on the floor of the family room.   All lights and the television were off.   An afghan covered Joe's upper chest and head.   He had died of “massive” head injuries from “a very significant and forceful trauma.”   Much of his skull and brain had been destroyed.

The pathologist located injuries from three to five major blows delivered to the head, each of which was severe enough to “incapacitate” Joe immediately.   The injuries, consistent with the use of an elongated blunt instrument such as a bat, two by four, or jack handle, did not appear to have been caused by a short-barrel gun.   There was no evidence of “defensive wounds.”

Once Scott informed police of his conversation with Joe and of the existence of the whispering tape, the investigation shifted to Brenda.   By 4:20 a.m. Sergeant Graves began a taped interview with her, parts of which were played for the jury.   The first part presented a tearful Brenda describing how she first met Joe a year before.   She described their relationship after the marriage as “I think good.”   They had “bickered” during the weekend garage sale, “but [it was] not a bad relationship.”

The second part concerned Graves confronting Brenda with the whispering tape.   When he asked whether she had ever discussed killing Joe on the phone, an eight-second pause ensued, followed by Brenda whispering:  “No—I don't think so.”   When Graves persisted, Brenda denied the existence of such a discussion and stated she was not aware Joe recorded her phone calls.   When Graves asked whether she was certain she never discussed someone entering the house to kill Joe, Brenda responded:  “Not that I know of.”   Graves replied it was not the kind of discussion a person would have any doubt about having or not having.   Brenda again paused, shook her head no, and answered:  “No—I don't remember.”   She added she did not “think” the conversation existed.

Graves exhorted Brenda to tell the truth, informing her he had the tape.   She answered, “No conversation” and denied remembering having the whispering conversation.4

Brenda was arrested at 6:30 a.m.   Officer Wells escorted her to Valley Medical Center to be examined for injuries and sexual assault.   Before they left, Wells, a female officer, had Brenda undress and photographed her.   Wells found no blood or injuries to Brenda's face nor could she find evidence of injuries consistent with Brenda's claim of having been struck unconscious.   Wells noted particles consistent with dried flowers on Brenda's chest, back and pubic areas.5  At the nape and right side of Brenda's neck, Wells saw marks that looked like an abrasion caused by something rubbing against her neck.   Also detected was an injury underneath Brenda's right arm and across the right side of her chest, and a small mark on the right wrist.   The “rape kit” analysis for Brenda was negative for foreign pubic hairs or semen and no evidence of semen or sexual activity was found at the crime scene.

The investigation led to Marvin Mark who Graves interviewed at 9:50 p.m. on October 15th.   In his taped statement, Marvin recounted how he met Brenda in August 1985 and their subsequent romantic involvement.   He lived with her until she said she was marrying an impotent old man who wanted a young wife to show off.   That development was a “little upsetting” but Marvin understood Brenda's need for financial security, which he could not provide.

Marvin moved out of the DeRose Street house he shared with Brenda on September 1st, the day after he last had sex with her, but moved back in when Brenda moved out.   He and Brenda were “still friends”;  they frequently met by prearrangement at a parking lot near his house on the way to work to exchange mail and checks.   They last met there Tuesday morning.

Marvin claimed he had recently driven to Utah in a U–Haul to bring back furniture.   He returned the previous Friday, October 10th.   Either that day or Saturday, he drove to the Ottos' garage sale to look at a washer and dryer where he talked with Joe, who did not sound friendly or appear willing to charge a fair price.   Marvin drove by again Saturday evening in his pickup truck, without stopping, to look at a camper trailer for sale that he had no extra money to pay for in any event.

Marvin said Brenda phoned him Saturday afternoon, complaining about Joe, who was on her case and worried about her talking to Marvin.   Marvin claimed his last phone conversation with Brenda was Sunday or Monday when they talked about the $325 deposit from the DeRose Street house that Brenda secretly covered for him but which she had to produce in order to placate Joe.

Marvin stated he was at his office all day Tuesday until 8 p.m., using his Cadillac to get home by 8:45 p.m.   He then worked until roughly midnight straightening up his house.   Between 11:30 p.m. and midnight, he took his dog out in his pickup truck for a run, returning about 1 a.m.   During this period he saw or talked to no one.   He turned in for the night between 2 and 2:30 a.m.

Midway through the interview Graves told Marvin he had booked Brenda for Joe's murder, that she implicated him, and that recorded conversations existed between him and Brenda in which she told him she learned to unplug the recording machine after Marvin said, “You shouldn't be calling me from your house.”   Marvin recalled the conversation, but explained his comment as:  “Why upset the apple cart.”

As to the whispering conversation on Saturday, Marvin claimed he remembered it but did not quite understand what it was about, although he knew Brenda was upset.   He conceded he “shouldn't forget a conversation like that,” but was “just [unable to] remember what it is about.”

In connection with the Tuesday tape, Marvin could not remember telling Brenda he was going to borrow a car.   He insisted he had not recently borrowed anyone's car:  “Do I ever borrow?   No.  I have two.   There's no reason to.”   “What do I need a car for, I've got two.”   He said he washed his Cadillac earlier in the day (October 15th), even though it might still be dirty inside.   Nor did he know why he would ever discuss whether Jolynn, whom he did not know and never met, had gone to work.

Finally, when asked about any injuries he might have, Marvin reported rug burns on his knees from “screwing around” probably on Monday with his girl friend, Karen Palmer, on the rug of his new office in Campbell.

Crime scene investigator Rand Parker entered the Otto house early Wednesday morning.   He found no evidence of a forced entry.   In a closet, he found a loaded .45 caliber semi-automatic pistol in a man's jacket.   Various items of jewelry were located in cabinets;  examination of closets and the master bedroom, bathroom and office area showed no disarray.   The VCR and television set were plugged in and in place.   He found numerous blood splatters in the family room and dining nook and observed an overturned wrought iron rack and various ceramic or glass knick-knacks on the floor, as well as a coffee table with the objects that had been on it scattered on the floor.   The dust covering the top of the table was not disturbed and none of the fragile objects such as shells from the table were broken.   A woman's yellow ring was on the family room carpet and Joe had a yellow metal chain with a Krugerrand pendant around his neck.   Joe had money on him;  his pockets had not been turned inside out.

Underneath the overturned wrought iron rack, Parker found blood splatters but no nicks or indentations in the linoleum that the “fairly heavy” rack might have made if it had fallen on the floor.   He observed a shoe print in the area of the overturned rack, which was different from two other shoe prints he located outside the house.6  In the dining nook area, the police found a pair of panty hose, a pink bathrobe, and a bra.

Based on his investigation of hundreds of residential burglaries, Parker noted anomalies from his observations at the Otto house and circumstances he typically encountered when investigating a burglary.   Usually, outside a burglarized house, he found some obvious point of entry;  inside he would find things missing, drawers pulled open or their contents dumped, mattresses moved, clothes pulled from hangers, property stacked near a get-a-way point, and power tools taken from a garage.   If a male victim was present, Parker typically found his jewelry or wallet gone and his pockets turned inside out.

Officer Rimer, an expert in blood splatter analysis, testified it was peculiar, given the irregular way homicides happen, that Brenda's panty hose, robe and bra were found with bloodstains all around them but none underneath.   He also noted anomalies involving items in the area of the attack not having blood splattered on them in a manner consistent with Brenda's account of the attack.   The absence of cast off blood on the ceiling indicated that the murder weapon was relatively short and blunt, such as a one and one-half to two foot tire iron.

Associates of the office in which Marvin shared space testified they saw him working at his office at 9:30 p.m. on Tuesday, October 14th, the night before the tax return deadline.   By 9:45 p.m. he was gone.7

Karen Palmer was romantically involved with Marvin after Brenda married Joe.   According to her, they drove to Utah in a U–Haul truck on October 4th and returned October 10th.   When police contacted her about Marvin's statement that they had made love in his new office, Palmer denied the claim.   When she confronted Marvin in jail about the remark, he explained “[i]t was the only thing he could think of to say at the time.”

Police investigation focused on three vehicles Marvin used near the time of the murder.   No blood was detected in the Mercury Monarch police established Marvin borrowed from D and M Motors on a Saturday sometime between the 9th and 14th of October 1986.   The police searched Marvin's Cadillac and pickup truck on October 15th;  both cars were dirty inside and out and did not appear to have been washed that day.   At the time of Marvin's arrest, however, police found a car wash receipt on him, with a date of October 15, 1986, and an apparent time stamp of 9:33.8

Neither Brenda nor Marvin testified.

John Orozco testified that midday Tuesday, October 14th, he saw Marvin with his car and suggested he go to a nearby tire service, apparently to replace a right rear hubcap on Marvin's car.

Sharon Ralston, a former girlfriend of Marvin's, testified she travelled from Portland during the second week of October 1986 and had sex with him on the rug in his new office on a Saturday night, during which Marvin scraped his knees.   Ralston, unable to produce any documentation supporting her claim that she made the trip, was unable to recall by what means she got to the Bay Area from Portland.

Terri Haslouer testified that on October 14th she visited her parents on Thousand Oaks Drive, a relatively busy residential street several intersections from the Otto house.   Fifteen minutes after her arrival and shortly before it got dark she noticed a medium-sized diesel truck cab with three Mexicans slowly drive by three times.   Two days later, after hearing of the Otto murder, she called police to report her observations.

Loretta Tachovsky and her husband Dewey had been friends of Marvin for 15 years.   Loretta, who was first contacted about this case over a year after Joe's murder, recalled that on October 14, 1986, Marvin called her about 5:30 p.m.   She recalled the date because it was her cousin's birthday.   In response to the call, she contacted her husband and told him Marvin needed help moving some furniture.

Dewey testified he left work at 9:30 p.m. on the evening of his wife's call and went to Marvin's place to help move furniture, arriving at approximately 10 p.m.   When he arrived at the DeRose Street house, he found Marvin, who was wearing a white shirt, slacks, and wing tip shoes, operating a calculator at a table full of papers.   Marvin continued working another five or ten minutes.   They then spent 20 to 25 minutes moving a refrigerator from the back of the garage to the front.   Dewey remained an additional 10 or 15 minutes, leaving as Marvin, still in his white shirt and slacks, took his dog for a walk.   Dewey thought he got home half-way through the 11 o'clock news.9



The jury heard much evidence obtained through a voice-activated tape recorder Joe connected to the telephone line in his home.   Defendants were aware Joe had attempted to tape calls but Brenda thought she had defeated such attempts;  in the whispering tape, she mistakenly told Marvin, “I learned how to unplug it.”   Defendants contend Joe's surreptitious taping violated both state and federal law and that evidence of their taped conversations should have been excluded under the provisions of both.   We disagree.

A. State Law

1. Penal Code section 631

 Penal Code section 631 proscribes, inter alia, the intentional and unauthorized interception of phone calls and the use of intercepted information and declares evidence so obtained to be inadmissible.10  While defendants may be correct that Joe's interception of their phone calls violated section 631, (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 194, 148 Cal.Rptr. 883, 583 P.2d 737) we agree with the attorney general that article I, section 28, subdivision (d) of the California Constitution (hereafter section 28(d)), which provides, inter alia, that “relevant evidence shall not be excluded in any criminal proceeding,” repealed the exclusionary rule in section 631 with regard to criminal proceedings.11  (See People v. Ratekin (1989) 212 Cal.App.3d 1165, 1169, 261 Cal.Rptr. 143;  In re Lance W. (1985) 37 Cal.3d 873, 884–890, 210 Cal.Rptr. 631, 694 P.2d 744;  cf. People v. Meyer (1986) 183 Cal.App.3d 1150, 228 Cal.Rptr. 635 [section 28(d) repealed exclusionary rule in Gov.Code, § 7489];  In re Demetrius A. (1989) 208 Cal.App.3d 1245, 256 Cal.Rptr. 717 [section 28(d) repealed judicial exclusionary rules established in People v. Longwill (1975) 14 Cal.3d 943, 123 Cal.Rptr. 297, 538 P.2d 753.] )   The California Wiretap Act “must be evaluated according to federal law and evidentiary exclusions must be limited to violations of the fourth amendment.”  (Pennypacker, Reach Out and Bug Someone:  California's New Wiretap Law (1989) 29 Santa Clara L.Rev. 275, 282;  see § 629.22.)

Any argument that the Legislature's amendment and reenactment of section 631 in 1988 (see Stats.1988, chs. 111 and 1373, §§ 3 and 5, nos. 3 and 12 West's Cal.Legis.Service) revived its exclusionary clause must fail.   Section 28(d) provides in relevant part:  “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․”  “This case does not involve a ‘․ statute ․ enacted by a two-thirds vote of each house of the Legislature․’ ” (People v. Ratekin, supra, 212 Cal.App.3d at p. 1169, 261 Cal.Rptr. 143.) 12

Similarly without merit is defendants' argument that the recent holding in Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744, 274 Cal.Rptr. 787, 799 P.2d 1220 (Taxpayers v. FPPC ) “requires the conclusion that Proposition 8,” of which section 28(d) was a part, “was rendered inoperative” because another measure known as Proposition 4 was approved by a higher number of affirmative votes at the same election.   The court in Taxpayers v. FPPC held that “unless a contrary intent is apparent in the ballot measures, when two or more measures are competing initiatives, either because they are expressly offered as ‘all-or-nothing’ alternative or because each creates a comprehensive regulatory scheme related to the same subject, [Cal. Const., art. II] section 10(b) mandates that only the provisions of the measure receiving the highest number of affirmative votes be enforced.”  (Id., at p. 747, 274 Cal.Rptr. 787, 799 P.2d 1220.)   We are convinced that the decision announces a new rule which is not retroactive.   In any event, the opinion does not apply to the limited type of conflict which existed between Proposition 8 and Proposition 4:  “an initiative is inoperative in its entirety if the voters adopt, by a higher vote, an alternative comprehensive regulatory scheme governing the same subject.   Our construction of section 10(b) does not foreclose operation of an initiative measure that receives an affirmative vote simply because one or more minor provisions happen to conflict with those of another initiative principally addressed to other aspects of the same general subject․  [I]f the principal purpose of the initiative can be accomplished notwithstanding the excision of the minor, incidental conflicting provisions, the remainder of the initiative can be given effect.”  (Id., at p. 771, fn. 12, 274 Cal.Rptr. 787, 799 P.2d 1220.)   It cannot be said that Proposition 4, which simply addressed the issue of bail, was an “alternative comprehensive regulatory scheme governing the same subject” as Proposition 8, which set forth a regulatory scheme governing victim's rights in general.   We conclude that, because the principal purpose of Proposition 8 can be accomplished notwithstanding the excision of its incidental bail provisions, the remainder of Proposition 8 can be given effect.

Consequently, we conclude that any violation of section 631 did not render inadmissible evidence so obtained.

2. Penal Code Section 632

 In their opening and reply briefs, defendants jointly acknowledged that “the issue here is whether there is any constitutional or other overarching [sic ] reason why the plain language of Penal Code Section 631(c) should not be applied to this case․”  They recognized that Joe's conduct violated Penal Code section 631's proscription against intentional unauthorized tapping of a telephone wire by a machine and relied upon their contention that Proposition 8 did not affect that statute since “the Legislature has reenacted Section 631 subsequent to the passage of Proposition 8.”   Nowhere in their extensive briefing of the wiretap issue did either counsel refer to section 632.13  However, once faced with this court's recognition that section 631 was not reenacted by a two-thirds vote of the membership of each house of the Legislature after the effective date of Proposition 8, defendants in their supplemental briefing argue that Joe's conduct also violated section 632, subdivision (a)'s prohibition against eavesdropping upon and recording a confidential communication over the telephone and that the resulting tapes are inadmissible under the accompanying exclusionary provision in section 632, subdivision (d).   They make this argument because, unlike section 631, section 632 was amended via chapter 909 of the 1985 Statutes by a two-thirds vote of the membership of each house of the Legislature.

In discussing the differences between the state and federal regulations regarding wire and oral communications, the California Supreme Court, after noting that “[t]he state Invasion of Privacy Act (§§ 630–637.2) forbids wiretapping (§ 631) and electronic eavesdropping (§ 632) except by law enforcement officers ․,” explained that “the scheme of the federal act is based on the type of communication, that is, whether it is wire or oral;  the state act by contrast, on the type of surveillance, that is, whether it is wiretapping or eavesdropping.  (Note (1969) 57 Cal.L.Rev. 1182, 1210.)”   (People v. Conklin (1974) 12 Cal.3d 259, 263, 114 Cal.Rptr. 241, 522 P.2d 1049.)   In People v. Ratekin, supra, 212 Cal.App.3d 1165, 261 Cal.Rptr. 143 the court explained that although sections 631 and 632 “envision and describe the use of similar or the same equipment to intercept communications, the manner in which such equipment is used is clearly distinguished, separate and mutually exclusive.  Section 631 prohibits ‘wiretapping,’ i.e., intercepting communications by an unauthorized connection to the transmission line.  Section 632 prohibits ‘eavesdropping,’ i.e., the interception of communications by the use of equipment which is not connected to any transmission line.”  (Id. at p. 1168, 261 Cal.Rptr. 143.)

We conclude that section 632 does not apply to the facts of this case, that the conduct of Joe “constituted ‘wiretapping’ as described in section 631 and did not constitute ‘eavesdropping’ as described in section 632.”   (Id., at p. 1169, 261 Cal.Rptr. 143.) 14

B. Federal Law

 Defendants contend exclusion of the tape recordings is compelled by the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Acts of 1968 (18 U.S.C.A. §§ 2510 et seq., hereinafter Title III or the Act).

The exclusionary provision of Title III is contained in 18 United States Code Annotated section 2515:  “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, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.”

Other applicable sections of Title III provide in pertinent part as follows:

United States Code Annotated section 2510(4) defines “intercept” as “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.”

United States Code Annotated section 2511 prohibits, inter alia, the intentional and unauthorized interception of telephone messages and the disclosure of their contents:  “Except as otherwise specifically provided in this chapter any person who— ․ [¶] (a) willfully intercepts ․ any wire or oral communication;  [or] ․ (c) willfully discloses ․ to any other person the contents of any wire ․ communication ․;  or (d) willfully uses ․ the contents of any wire ․ communication, knowing or having reason to know that the information was obtained through the interception of a wire ․ communication in violation of the subsection ․ shall be fined not more than $10,000 or imprisoned not more than five years, or both.”

However, “[i]t shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.”  (18 U.S.C.A. § 2511(2)(d).)

United States Code Annotated section 2510(1) defines “wire communication” to mean “any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.”

A telephone conversation is a “wire communication” under the federal statute.  (United States v. Axselle (10th Cir.1979) 604 F.2d 1330, 1334, 18 U.S.C.A. § 2510(1).)   Both defendants have standing to raise a Title III violation:  the code specifically states that any “aggrieved person” means a person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.  (18 U.S.C.A. § 2510, subd. (11);  cf. People v. Medina (1987) 189 Cal.App.3d 39, 45–46, 234 Cal.Rptr. 256.)

The question we face is whether disclosure of interceptions obtained as a result of Joe's connection of a voice-activated recording device to a telephone line in his mutually occupied marital home without the other spouse's knowledge or consent is in violation of Title III and, if so, whether exclusion of the content of conversations so recorded is required.

The People argue that the statutory exclusionary rule contained in 18 United States Code Annotated section 2515 should not be imposed against the prosecution when it is the innocent recipient of an interception obtained in violation of 18 United States Code Annotated section 2511;  in the alternative, they claim Title III does not apply to interspousal wiretaps of telephones within the family home.

1. Wiretap of Family Phone

Title III was designed in part to provide general protection for the privacy of wire and oral communications while “delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.”  (Sen.Rep. No. 1097, 90th Cong.2d Sess. 66 [Senate report which accompanied House Report 5037 (the predecessor to the Act) ], reprinted in 1968 U.S.Code Cong. & Admin.News pp. 2110, 2153.)

The federal circuit courts are split on whether Title III applies to a spouse's installation of a recording device on a telephone in their mutual home without the other spouse's knowledge or consent.   The split involves the import of 18 United States Code Annotated section 2510(5)(a)(i), the family extension phone exception, which provides:  “As used in this chapter— ․ (5) ‘electronic, mechanical, or other device’ means any device or apparatus which can be used to intercept a wire, or oral communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business;  or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties․” 15

In Simpson v. Simpson, supra, 490 F.2d 803, the court held that a civil action for damages did not exist under Title III against a husband who wiretapped the family phone in order to intercept conversations between his wife and another man.   After a “long, exhaustive and inconclusive” search of the Act's legislative history, the court determined Congress did not intend to establish a novel “federal remedy for persons aggrieved by the personal acts of their spouses within the marital home․”  (Id. at pp. 805–806.)   Finding no “convincing distinction” between intercepting a family member's phone conversation by an extension phone in the family home, an “acceptable overhear” under section 2510(5)(a)(i), and wiretapping the family phone in order to intercept family member's conversations, the court concluded that “the (5)(a)(i) exemption is indicative of Congress's intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family members may expect within the home vis-a-vis each other.”  (Id. at p. 809.)   Aware that if appellant prevailed the husband could be subject to severe criminal penalties under Title III, the court in Simpson concluded it was “bound by the principle that criminal statutes must be strictly construed, to avoid ensnaring behavior that is not clearly proscribed.  [Citation.]”  (Ibid.)   The court found this due process principle important in light of its “inability to determine from the statute and its legislative history whether one is prohibited from taping one's spouse's conversations within one's home.”  (Ibid.)

In Robinson v. Robinson (La.Ct.App.1986) 499 So.2d 152, 155, the court similarly classified Title III as a criminal statute and concluded that interspousal surveillance “does not rise to the level of the criminal conduct proscribed by the federal statute.”

In Anonymous v. Anonymous, supra, 558 F.2d 677, the court followed Simpson, declining to apply Title III to a husband's interception of telephone conversations between his wife and daughter.   After noting that “ ‘nobody wants to make it a crime’ for a father to listen in on conversations between his wife and his eight year old daughter, from his own phone, in his own home,” the court concluded “[t]he fact that appellee here taped the conversations which he permissibly overheard, we find, as the Fifth Circuit did in Simpson, 490 F.2d at 809, to be a distinction without a difference.”   (Id., at p. 679.)

In Perfit v. Perfit (C.D.Cal.1988) 693 F.Supp. 851, a federal district court in this state was persuaded by the Simpson and Anonymous view that “it is unlikely that congress intended its regulations to extend to such personal acts conducted within the marital home,” adding that “[a]pplication of federal law to an interspousal domestic conflict would run counter to the tradition of leaving such matters to the realm of state courts.”  (Id., at p. 856.)   The court in Perfit similarly agreed with Simpson and Anonymous that the extension exception is “an expression of Congressional intent to exclude from Title III the interception of telephone conversations taking place within the marital home.”  (Ibid.)  Other courts adopting the Simpson view include Baumrind v. Ewing (1981) 276 S.C. 350, 279 S.E.2d 359, 360, cert. den. 454 U.S. 1092, 102 S.Ct. 657, 70 L.Ed.2d 630;  Lizza v. Lizza (E.D.N.Y.1986) 631 F.Supp. 529, 533;  and Remington v. Remington (E.D.Pa. 1975) 393 F.Supp. 898, 901;  see also (Stephens, All's Fair:  No Remedy under Title III for Interspousal Surveillance (1989) 57 Fordham L.Rev. 1035.)

A number of other federal courts have adopted the opposing view that “ ‘Title III prohibits all wiretapping activities unless specifically excepted.   There is no express exception for instances of willful, unconsented to electronic surveillance between spouses.   Nor is there any indication in the statutory language or in the legislative history that Congress intended to imply an exception to facts involving interspousal wiretapping.’ ”  (Kempf v. Kempf (8th Cir.1989) 868 F.2d 970, 973, quoting from Pritchard v. Pritchard (4th Cir.1984) 732 F.2d 372, 374;  see also United States v. Jones (6th Cir.1976) 542 F.2d 661, 673;  Heggy v. Heggy (W.D.Okl.1988) 699 F.Supp. 1514, 1516;   Kratz v. Kratz (E.D.Pa.1979) 477 F.Supp. 463.)

We conclude the better view is represented by Simpson, Anonymous, and Perfit, which recognize that interspousal eavesdropping and phone tapping in the family home over family phones are beyond the purview of Title III.   In discussing the crime they were planning over Brenda and Joe's home telephone, Marvin “impliedly accepted the risk that his conversation might be overheard on an extension and/or recorded.  [Citations.]”  (United States v. Miller (1st Cir.1983) 720 F.2d 227, 228;  see also Rathbun v. United States (1957) 355 U.S. 107, 111, 78 S.Ct. 161, 163, 2 L.Ed.2d 134.)   Evidence so obtained need not be excluded from a criminal prosecution pursuant to 18 United States Code Annotated section 2515.   The evidence in the instant case was relevant and lawfully obtained through Joe's connection of a recording device on a phone line within his own home.   We therefore hold it was not error for the trial court to refuse to suppress the recordings as to either defendant.

In light of our conclusion that Title III does not apply to Joe's wiretapping his own family phone, we need not address the People's alternative theory for the admissibility of the tapes.




The judgment as to each defendant is affirmed.


1.   Further statutory references are to the Penal Code unless otherwise stated.

2.   Writ review of the order denying the section 995 motion was sought in this court (H003730).   The petition was denied without opinion on November 25, 1987.

3.   Because several people referred to herein share the same last name, we shall refer to everyone by first name once they are identified in an attempt to simplify our discussion of the facts and law.

4.   Brenda also stated in this part of the tape that she had told various people that she did not like being married and that it was a hard adjustment after being single so long.

5.   These particles were consistent with dried flowers found on the floor of the murder scene.

6.   The shoeprints found in and around the house did not match the shoes Joe was wearing.   No evidence was produced that they matched any of Marvin's shoes.

7.   The distance from the Santa Clara office to the Otto home is 13.6 miles;  the distance from the DeRose Street house to the Otto house is 6.4 miles.

8.   Russell DiSalvo testified that although he did not recall the exact time Marvin brought back the loaner car, he thought it was around 9 or 9:30 a.m.

9.   Marvin's taped statement, given October 15th about his activities the previous evening, relates a different alibi.   Marvin told Graves he had got home around 8:45 p.m. and spent the rest of the evening working in his house, doing chores such as putting away dishes and folding blankets.   He did not mention working on any papers, moving furniture or a refrigerator in the garage, or ever seeing Dewey that night.   Marvin also stated he wore a pair of Levis and a blue pull over shirt, not a white shirt and slacks as Dewey described a year and one-half after the events.

10.   Section 631 provides in relevant part:  “Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, ․ or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons ․ is punishable by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both a fine and imprisonment in the county jail or in the state prison․  [¶] (b) This section shall not apply (1) to any public utility engaged in the business of providing communications services and facilities, or to the officers, employees or agents thereof, where the acts otherwise prohibited herein are for the purpose of construction, maintenance, conduct or operation of the services and facilities of such public utility,․  [¶] (c) Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative or other proceeding.”

11.   Section 28(d) provides:  “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, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court.   Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103.   Nothing in this section shall affect any existing statutory or constitutional right of the press.”

12.   The Assembly has a membership of 80;  the Senate a membership of 40.  (Cal. Const., art. IV, § 2.)  Section 631 was amended twice in 1988.   In Statutes 1988, chapter 111, the Legislature amended the section by means of Senate Bill 1499.   It was adopted in the Assembly by a 49 to 19 vote and in the Senate by a 31 to 3 vote.  (Assem. Journal, p. 6819;  Sen. Journal, p. 5847.)  Section 631 was again amended in a cleanup bill, Senate Bill 83 (Stats.1988, supra, ch. 1373).   The final Assembly vote was 53 ayes and 18 noes.   The Senate vote on Senate Bill 83 was 38 ayes and 0 noes.  (Assem. Journal, Aug. 31, 1988, p. 10473;  Sen. Final History, 1987–1988 Regular Session p. 78)  Neither legislative action in 1988 dealing with section 631 constituted an enactment “by a two-thirds vote of the membership in each house of the Legislature” required under article I, section 28(d) of the California Constitution (Proposition 8) to avoid its Truth-in-Evidence provisions.   Defendants' argument that “membership” means members present and voting rather than the full membership of each house is without merit.   The Constitution does not require a simple “two-thirds vote” in this context;  article I, section 28(d) carefully specifies “a two-thirds vote of the membership,” and membership has been defined as the full 80 Assembly members and 40 Senators.  (See e.g. Assem. Rule 105 (1989) and Sen. Rule 47 (1989);  see also Mason's Manual of Legislative Procedure, §§ 510–512.)   On the other hand, when a vote by “a majority of the members present” is required, the Legislative Rules specifically so state.  (See e.g. Sen.Rule 42 (1989.))   This court grants respondent's motion for judicial notice filed October 5, 1990.

13.   Section 632 provides in pertinent part:  “(a) 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 such 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.   If the person has previously been convicted of a violation of this section or Section 631,632.5 or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year or in the state prison, or by both that fine and imprisonment․  (d) 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.”

14.   In any event, we are convinced that the reenactment of the exclusionary provision of section 632, subdivision (d) did not override the “Truth-in-Evidence” provision of section 28(d), as there is no evidence that the Legislature intended this effect.  Section 632 was reenacted, with minor amendments but without substantial change, in 1985 as part of Senate Bill 1431 (Stats.1985, ch. 909, § 2.5).   The major focus of the legislation was to add section 632.5 dealing with cellular radio telephone interceptions, and section 632 was amended to conform to the new section.   Although the Senate bill passed the Assembly and the Senate by two-thirds of the full membership of each house, the Legislature never addressed the exclusionary provision of the eavesdropping statute or the effect of Proposition 8 upon any reenactment of that provision.  “We cannot assume that the Legislature understood or intended that such far-reaching consequences—virtually a legislative repeal of the ‘Truth-in-Evidence’ section of Proposition 8—would follow” the noncontroversial amendment of the eavesdropping statute to conform to the new Cellular Radio Telephone Privacy Act of 1985.  (In re Lance W., supra, 37 Cal.3d 873, 894, 210 Cal.Rptr. 631, 694 P.2d 744.)

15.   “The meaning of the phrase ‘being used by the subscriber or user in the ordinary course of its business' becomes clear in light of objections to the original version, which did not contain this phrase.   Prof. Herman Schwartz, appearing for the A.C.L.U., stated his fear that the original version would permit intruders or other unauthorized persons to use extension phones without being subject to the prohibitions and penalties of the act.   In the course of this objection, he made the following comment:  [¶] ‘I take it nobody wants to make it a crime for a father to listen in on his teenage daughter or some related problem․  But this bill does not go to that and goes beyond that.’ ”  (Quoted in Simpson v. Simpson (5th Cir.1974) 490 F.2d 803, 809, fn. 17, cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141;  see also Anonymous v. Anonymous (2d Cir.1977) 558 F.2d 677, 678–679.)

FOOTNOTE.   See footnote *, ante.

COTTLE, Associate Justice.


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