PEOPLE v. STILES

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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. David Ray STILES, Defendant and Appellant.

Cr. 11051.

Decided: February 15, 1983

Appellate Defenders, Inc. and Christopher Blake, Panel Atty., Handy Horiye and Kenyon Keller, Staff Attys., San Diego, for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Alan S. Meth and Lillian Lim Quon, Deputy Attys. Gen., for plaintiff and respondent.

David Ray Stiles appeals a judgment entered on jury verdicts convicting him of first degree murder (Pen.Code, § 187),1 five counts of burglary in the first degree (§ 459), four counts of robbery (§ 211), six counts of rape in concert (§ 264.1), one count of attempted forcible oral copulation in concert (§§ 288a, subd. (d), 664) and one count of attempted robbery (§§ 211, 664).   The jury found Stiles used a firearm in committing or attempting to commit all the offenses (§ 12022.5), and he used a deadly weapon in accomplishing one rape (§ 12022, subd. (b)).  Stiles contends prejudicial error resulted when the trial court refused to sever the murder count from the other charges;  when it allowed transcripts and tapes of jail conversations between Stiles and his parents and friend into evidence;  and when it restricted cross-examination of the police officers who showed victims photographic line-ups in which Stiles was identified.   We reject these contentions and affirm the judgment.

Factual Background

During a residential burglary on the evening of December 3, 1977, Stiles and his companion, both armed with handguns, terrorized the T. family by ransacking their San Diego North County home, raping their 16-year-old daughter and stealing money and property.   Stiles also attempted to force the daughter to orally copulate him but was refused.   His companion shot and wounded Mr. T.

In a nighttime burglary on December 15, 1977, Stiles and his partner, armed with handguns, robbed Mrs. P. and ransacked her North County residence.   Stiles raped Mrs. P.

On December 22, 1977, in another nighttime burglary, Stiles raped Mrs. O. after threatening her with a knife.   He and his accomplice robbed Mr. and Mrs. O. and ransacked their North County home.

On the evening of December 29, 1977, Stiles shot and killed George Mottino while burglarizing his North County home and attempting to rob him.   Two other persons accompanied defendant.

Less than two hours later, Stiles and two partners robbed the R. family and burglarized their North County residence.   Stiles and one of his companions, both armed with handguns, raped Mrs. R.

Discussion

 Denial of the Motion to Sever Was Not Error

Stiles contends the People impermissibly charged him with commission of all the crimes in a single information.   He also asserts the court prejudicially erred in denying his motion to sever the murder count from the other charges.

 Section 954 authorizes the joinder of offenses in a single information when the different offenses are connected together in their commission, are different statements of the same offense or are different offenses of the same class of crime.   Offenses are “connected together in their commission” when there is a common element of substantial importance among them.  (People v. Matson (1974) 13 Cal.3d 35, 39, 117 Cal.Rptr. 664, 528 P.2d 752;  People v. Kemp (1961) 55 Cal.2d 458, 475, 11 Cal.Rptr. 361, 359 P.2d 913, cert den., 368 U.S. 932, 82 S.Ct. 359, 7 L.Ed.2d 194.)   Factors sometimes considered include location and modus operandi (People v. Matson, supra, 13 Cal.3d at p. 39, 117 Cal.Rptr. 664, 528 P.2d 752);  time (People v. La Vergne (1966) 64 Cal.2d 265, 270, 49 Cal.Rptr. 557, 411 P.2d 309, cert. den., 385 U.S. 938, 87 S.Ct. 303, 17 L.Ed.2d 217);  and use of the same weapon (People v. Pike (1962) 58 Cal.2d 70, 84, 22 Cal.Rptr. 664, 372 P.2d 656).

 Stiles attempts to isolate these elements and to discount them individually as insubstantial.   He states, for example, People v. Saldana (1965) 233 Cal.App.2d 24, 30, 43 Cal.Rptr. 312, cert. den., 384 U.S. 1026, 86 S.Ct. 1938, 16 L.Ed.2d 1032 held improper the joinder of a second offense which occurred upon the arrest of defendant for the first offense.   The only apparent element in common was a proximity in time which was inadequate in and of itself.   Viewed as a whole, however, the common elements in the instant case cannot be dismissed as inconsequential.   All seven of the charged offenses occurred in north San Diego County.   Five, including the Mottino murder, took place in the City of Vista.   Except for the Mottino residence, all the residences were in isolated rural areas.   All of the offenses occurred in the month of December 1977, in the late night or early morning hours.   The R. burglary took place within two hours of the Mottino murder.   There was evidence the same weapons and modus operandi were used.   These elements in conjunction are substantial enough to “connect together” the various charges for the purpose of an accusatory pleading.

Furthermore, the joinder is permissible because the Mottino incident is of the “same class of crimes” as the other charges.   The T., P., O. and R. offenses each involved charges of burglary, robbery and rape.   The Mottino offense involved burglary, attempted robbery and murder.   The burglary and robbery/attempted robbery charges are obviously of the same class.   Stiles' contention the Mottino charges can be inferred only from the other offenses and therefore cannot be used to deny severance is invalid.   The prosecution cannot be required to prove guilt before trial in order to join charges.   Probable cause to bring these charges was manifest.

 Severance of the murder charge would have been inappropriate since it was a felony-murder charge based on the commission or attempted commission of inherently dangerous felonies:  burglary and robbery.   Culpability for the death of Mottino was premised on these other charges and could not be prosecuted in their absence.

Murder and rape have been held to be of the same class of crimes because both are forms of assault against persons.  (People v. Kemp, supra, 55 Cal.2d at p. 475, 11 Cal.Rptr. 361, 359 P.2d 913;  People v. Walker (1952) 112 Cal.App.2d 462, 471, 246 P.2d 1009.)   Stiles contends the comparison is too simplistic noting robbery and murder, both assaults against persons, have been held not to be offenses of the same class.  (People v. De La Plane (1979) 88 Cal.App.3d 223, 249, 151 Cal.Rptr. 843, cert. den., 444 U.S. 841, 100 S.Ct. 81, 62 L.Ed.2d 53.) 2  Forcible rape and murder are more nearly alike in that they are necessarily acts of violence.   That similarity, together with the common elements of the separate offenses described above, and the counts of burglary and robbery/attempted robbery charged in each offense, are sufficient under section 954 to justify a joinder.

 The denial of a motion to sever will be disturbed on appeal only if the court abused its discretion resulting in substantial prejudice to the defendant.  (People v. Matson, supra, 13 Cal.3d at p. 39, 117 Cal.Rptr. 664, 528 P.2d 752.)   Stiles contends the trial court's refusal to grant a severance prejudiced his defense by permitting the prosecution to use evidence of other offenses to establish, by inference, the charges of burglary and attempted robbery in the Mottino offense.

A similar argument was made in Matson.   There, the court's acknowledged doubts over the rapist's identity may have been dispelled by evidence the defendant used the same modus operandi in a different burglary, just as doubts over his intent in entering the victim's apartment may have been dispelled by evidence he raped the other victim.   But the Matson court dismissed the contention by pointing out Evidence Code section 1101, subdivision (b),3 would allow the introduction of this other evidence at a separate trial of the severed counts.   For this reason, appellant's claim of prejudice cannot be maintained, and because a proper basis for joinder existed under section 954, the court did not abuse its discretion by permitting the joinder.

 The Jail Conversations Were Properly Admitted;  De Lancie Is Not Retroactive

During Stiles' pretrial detention in the county jail, two conversations he had with his parents and a friend were monitored and tape-recorded by police investigator Decker.   Edited versions of these tapes, which contained incriminating admissions, were heard at trial and transcripts were given to the jury for consideration.   Stiles contends the use of these conversations was error in violation of his right to privacy (U.S. Const., 9th and 14th amends.;  Cal. Const., art. I, § 1;  §§ 2600 and 2601) and his right against unreasonable searches and seizures (U.S. Const., 4th and 14th amends.;   Cal. Const., art. I, § 13).   This appeal was held pending the Supreme Court's decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142.

In De Lancie, the California Supreme Court probed the very narrow question of whether county jail officials can monitor ostensibly private conversations between pretrial detainees and their visitors for purposes other than institutional security or public protection.  (Id., at pp. 867–868, 183 Cal.Rptr. 866, 647 P.2d 142.)   That careful dissection resulted in a reversal of the judgment of dismissal after the trial court sustained the defendants' demurrer without leave to amend in a civil suit brought by plaintiffs seeking injunctive and declaratory relief.   The court held plaintiffs could state a cause of action under sections 2600 and 2601, but refrained from ruling on whether plaintiffs could state a cause of action on either state or federal constitutional grounds.  (Id., at p. 877, 183 Cal.Rptr. 866, 647 P.2d 142.)

Whether De Lancie requires an exclusionary rule grounded on the constitution is an issue which we believe is best left to the California Supreme Court for resolution in one of the cases pending before it.  (See Robinson v. Superior Court (S.F. 24185, hg. granted June 25, 1980);  People v. Maxie (Crim. 21556, hg. granted July 16, 1980);  People v. Crowson (Crim. 22415, hg. granted Dec. 30, 1981).)   In deference, and for the sake of brevity, we address Stiles' argument on this issue by assuming arguendo that De Lancie established an exclusionary rule and restrict our analysis to whether such a rule, emanating from sections 2600 and 2601 only, should have pipeline retroactivity.  (This issue is also before the Supreme Court in Donaldson v. Superior Court (L.A. 31424, hg. granted May 29, 1981).)   In other words, should De Lancie be applied to those cases whose appeals had not yet become final when De Lancie was filed (July 8, 1982)?   We stress that culling the retroactivity issue from the other questions involving admissibility of the tape recordings is not tied to our belief retroactivity is an easy issue (see Westbrook v. Mihaly (1970) 2 Cal.3d 765, 802, 87 Cal.Rptr. 839, 471 P.2d 487, conc. opn., Mosk, J.) or that somehow we have prescience, judicial or otherwise, on how this question will ultimately be decided.4

In United States v. Johnson (1982) 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202, the United States Supreme Court acknowledged the doctrinal morass resulting from conflicting and inconsistent precedent on retroactivity and concluded “retroactivity must be rethought.”  (Id., 102 S.Ct. at p. 2586.)   Deciding the rule announced in Payton v. New York (1980) 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (Fourth Amendment proscribes warrantless and nonconsensual entries into an individual's home to make a routine felony arrest) should apply to all convictions not yet final when it decided Payton, the court rejected an earlier test focusing on three factors (see, e.g., Desist v. United States (1969) 394 U.S. 244, 245, 89 S.Ct. 1030, 1031, 22 L.Ed.2d 248;  Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199) 5 and announced a new rule for determining whether a standard created by a decision interpreting the Fourth Amendment should be applied retroactively.6  Johnson focused on whether a new decision clearly broke new legal ground.   Decisions applying settled precedents to new and different factual situations should be applied to all cases whose appeals are not final because the new decision has not materially altered the law.  (102 S.Ct. at p. 2587.)   On the other hand, decisions imposing rules which clearly break with previous cases are generally applied only prospectively because law enforcement authorities have usually relied on the old legal standards and retroactive application would adversely affect the administration of justice.  (Ibid.)  Johnson also noted that a decision expressly or impliedly ruling the trial court lacked the authority to convict or to punish the defendant accords full retroactivity to earlier decisions, including collateral relief to defendants whose appeals have been exhausted.  (See id., at pp. 2587–2588.)

Most decisions do not clearly break new ground.   Thus, pipeline retroactivity is the norm.  (See United States v. Johnson, supra, 102 S.Ct. at pp. 2589–2590.)   The De Lancie rule, however, fits within the second Johnson category.   As Johnson recognized, a decision which “․ overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.   [Citations.]”  (id., at p. 2588) indicates that the new rule constitutes a “ ‘sharp break in the web of the law.’ ”  (Id., at p. 2588, quoting Milton v. Wainwright (1972) 407 U.S. 371, 381, n. 2, dis. opn., 92 S.Ct. 2174, 2180, n. 2, 33 L.Ed.2d 1 (Stewart, J.) 7  With the exception of North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305,8 California courts have uniformly held incarcerated individuals enjoy no right of privacy.  (See cases in attached appendix, post.) 9  Thus, our presumed De Lancie rule constitutes a clear break with precedent.  (See People v. Mojica (1982) 138 Cal.App.3d 48, 187 Cal.Rptr. 634.)   Although we do not know the extent of official reliance on the old standard, clearly the number of reported decisions on this issue reveals official reliance is more than trivial.  (See cases cited in appendix, post.)   Moreover, even pipeline retroactivity with retrials in all nonfinal cases where the officials have monitored inmates would adversely affect the administration of justice.   Therefore, under Johnson, we hold De Lancie should not apply to those trials which concluded before July 8, 1982.

We recognize California courts may impose stricter standards of retroactivity than those adopted by the United States Supreme Court.  (Johnson v. New Jersey (1966) 384 U.S. 719, 733, 86 S.Ct. 1772, 1781, 16 L.Ed.2d 882;  People v. Rollins (1967) 65 Cal.2d 681, 683, 56 Cal.Rptr. 293, 423 P.2d 221.)   Even under California law we reach the same result.

 Absent a contrary indication from our Supreme Court, we will assume California courts will continue to adhere to its previous pronouncements on this issue.   Where a judicial decision results in an exclusionary rule which furthers the integrity of the factfinding process that rule will be applied retroactively.  (See, e.g., People v. Gainer, supra, 19 Cal.3d at p. 853, 139 Cal.Rptr. 861, 566 P.2d 997;  People v. Hitch (1974) 12 Cal.3d 641, 654, 117 Cal.Rptr. 9, 527 P.2d 361;  In re Johnson (1970) 3 Cal.3d 404, 410–413, 90 Cal.Rptr. 569, 475 P.2d 841;  see also fn. 6, ante.)   A judicial decision will be applied prospectively, however, where the new rule's primary purpose is to deter unlawful police conduct.  (See, e.g., People v. Barraza (1979) 23 Cal.3d 675, 691, fn. 5, 153 Cal.Rptr. 459, 591 P.2d 947 [entrapment];  People v. Hitch, supra, 12 Cal.3d at pp. 654–655, 117 Cal.Rptr. 9, 527 P.2d 361 [nonmalicious destruction of evidence];  People v. Rollins, supra, 65 Cal.2d at p. 683, 56 Cal.Rptr. 293, 423 P.2d 221 [Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694].)  The De Lancie rule, designed to deter unlawful surreptitious monitoring is not directed at purifying the factfinding process at trial.   If anything, the surreptitious tape recording of conversations of persons in custody with visitors to whom they may be talking will generally result in acquiring information which will be beneficial by permitting a more thorough law enforcement investigation and assist the courts in reaching the truth at trial.   In addition, prospective application of a rule designed to deter unlawful official conduct does not preclude collateral relief when other constitutional violations are revealed.  (See, e.g., In re Lopez (1965) 62 Cal.2d 368, 376–377, 42 Cal.Rptr. 188, 398 P.2d 380, cert. den., 384 U.S. 1016, 86 S.Ct. 1929, 16 L.Ed.2d 1038) [involuntary confession];  see generally In re Johnson, supra, 3 Cal.3d at pp. 412–413, 90 Cal.Rptr. 569, 475 P.2d 841.)   Accordingly, Stiles is still able to attack his conviction on the ground the authorities created the appearance of privacy with respect to either conversation.  (See North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305;  see fn. 8, ante.)   Therefore, guided by both federal and state precedent, we conclude a De Lancie exclusionary rule does not apply to cases tried before that decision became final and accordingly reject Stiles' arguments that his tape-recorded conversations were inadmissible.

 The Hearsay Objections

During the investigation of these crimes, the police showed photographic line-ups to the victims, who identified Stiles.   At trial, the court restricted Stiles' cross-examination of investigating officers Cook and McClure concerning conversations with Mrs. R. and Mrs. P. on the basis that certain answers would be inadmissible hearsay.10  Stiles contends this decision resulted in a denial of his rights under the Sixth and Fourteenth Amendments of the United States Constitution, and article I, section 15 of the California Constitution.

 The trial court erred when it excluded as hearsay the third, fourth and fifth questions.  (See fn. 10, ante.)   Although the questions refer to out of court statements, the anticipated responses were not offered to prove the truth of the matter stated.   Rather, they were offered to show their effect upon the hearers, namely, the identifying witness.  (People v. Roberson (1959) 167 Cal.App.2d 429, 431, 334 P.2d 666.)   Counsel apparently sought to show the witness' identification was influenced by the investigating officer's comments.   However, counsel addressed the same issue when he cross-examined the witness and she testified one officer commented to another officer in her presence that the photograph she identified was of the prime suspect.   Since the information counsel might have gotten was already in evidence, it is not reasonably probable a result more favorable to the defendant would have been reached in the absence of the error.  (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.)

 Stiles asserts that since certain portions of Mrs. R.'s conversation with Cook had already been admitted at trial, the entire conversation became admissible under Evidence Code section 356 11 and therefore the first and second questions at issue were admissible.   Trial counsel apparently assumed he would be entitled to introduce other hearsay on behalf of the defendant if he allowed certain hearsay into evidence for the benefit of the prosecution.   He made a common mistake.12  (People v. Gambos (1970) 5 Cal.App.3d 187, 192, 84 Cal.Rptr. 908.)

 Trial counsel also argued hearsay was admissible to impeach the victim's identification testimony.  (Evid.Code, § 1235.)   The only offer of proof he made was for the question concerning Mrs. P.'s ability to describe the defendant's hair color and length to Deputy McClure.   Counsel wanted to show the victim was not sure of the hair color but thought it was “possibly light.”   In court, Mrs. P. testified her impression at the time was that the assailant's hair color was “medium brown.”   The court found the discrepancy was not impeaching and sustained the objection as hearsay.   A witness' prior inconsistent statements are admissible at trial.  (See Evid.Code, § 1235.)   Although the court determines whether a proffered evidentiary item is admissible (see Evid.Code, §§ 310;  402), determination of credibility is for the jury (Evid.Code, § 312).   While the court erroneously sustained the objection, no harm to Stiles resulted.   The inconsistency here is not substantial and the People produced a great deal of evidence demonstrating Stiles committed the crime.

 Finally, Stiles argues Evidence Code section 1238 13 allows the admission of evidence of pretrial identifications by a witness as an exception to the hearsay rule and therefore should apply to the first, second and sixth questions.  Section 1238 provides for the admission of pretrial identifications, generally where a witness is unable to make an identification in court (due to loss of memory, etc.) (see com. to § 1238;  People v. Gould (1960) 54 Cal.2d 621, 7 Cal.Rptr. 273, 354 P.2d 865);  the section does not provide for hearsay statements of how these identifications are made.   If counsel was interested in ascertaining the reasons for the identification, he should have addressed his questions to the victims in court.   Had the testimony conflicted with statements made before trial, the pretrial hearsay would be admissible under Evidence Code section 1235.   The record shows counsel did indeed cross-examine the victims on the subject of their pretrial identifications.   Since counsel could not offer proof of inconsistency, the hearsay was properly excluded.

Disposition

The judgment is affirmed.

APPENDIX

The California Supreme Court has twice directly addressed the admissibility of an inmate's or a detainee's statements obtained surreptitiously.  North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, held the People may not introduce statements the defendant made to his wife after the police led them to believe they could converse in private.  People v. Hill (1974) 12 Cal.3d 731, 764–765, 117 Cal.Rptr. 393, 528 P.2d 1 (overruled on another ground in People v. De Vaughn (1977) 18 Cal.3d 889, 896, 135 Cal.Rptr. 786, 558 P.2d 872) held absent evidence the police created an expectation or belief a defendant and his wife could converse in private, the statement obtained was admissible.   In addition, Halpin v. Superior Court (1972) 6 Cal.3d 885, 900, 101 Cal.Rptr. 375, 495 P.2d 1295, footnote 21 noted in passing California courts uniformly held an inmate had no right of privacy.

Appellate cases after North and Hill holding a prisoner has no reasonable expectation of privacy include:  People v. Williams (1982) 128 Cal.App.3d 981, 985–988, 180 Cal.Rptr. 734 (taping of a codefendant's conversation in back of a police car—no right to privacy under the California Constitution);  People v. Dominguez (1981) 121 Cal.App.3d 481, 504–507, 175 Cal.Rptr. 445 (taping of codefendant's conversation with his mother—no standing;  no reasonable expectation of privacy subject to North exception);  People v. Jardine (1981) 116 Cal.App.3d 907, 914–915, 172 Cal.Rptr. 408 (taping of defendants' conversation in the back of a police car—defendants were not in a private place and had no reasonable expectation of privacy);  People v. Owens (1980) 112 Cal.App.3d 441, 447–449, 169 Cal.Rptr. 359 (taping a defendant in an interview room—no reasonable expectation of privacy);  People v. Estrada (1979) 93 Cal.App.3d 76, 98–100, 155 Cal.Rptr. 731 (taping of defendant's conversation with sister and brother-in-law—no reasonable expectation of privacy subject to North exception;  all monitoring is justified as having a legitimate penological objective);  People v. Suttle (1979) 90 Cal.App.3d 572, 577–580, 153 Cal.Rptr. 409 (taping of defendants in adjoining cells—no reasonable expectation of privacy subject to North exception);  People v. Martinez (1978) 82 Cal.App.3d 1, 15–16, 147 Cal.Rptr. 208 (taping of defendant's conversation with brother and sister-in-law—no reasonable expectation of privacy subject to North exception);  People v. Newton (1974) 42 Cal.App.3d 292, 296, 116 Cal.Rptr. 690 (taping of defendants' conversation in back of police car—no reasonable expectation of privacy);  People v. Fonville (1973) 35 Cal.App.3d 693, 706–709, 111 Cal.Rptr. 53 (taping of defendant's conversation with his uncle—no objection at trial;  no reasonable expectation of privacy);  People v. Finchum (1973) 33 Cal.App.3d 787, 789–791, 109 Cal.Rptr. 319 (taping of defendants' conversation in an interview room after sheriff told them he had heard two different stories from them and asked them if they could get their story straight—no reasonable expectation of privacy, distinguishing North on ground no privilege implicated here);  In re Joseph A. (1973) 30 Cal.App.3d 880, 882–886, 106 Cal.Rptr. 729 (conversation between defendant and his uncle after uncle asked police if he could speak to defendant alone—no reasonable expectation of privacy, distinguishing North on ground police did not represent the conversation would be in private—“by himself” could be construed to mean “away from other persons in custody” which does not mean “in private”).

Even before North, the Courts of Appeal consistently upheld convictions in which surreptitiously recorded conversations of inmates were used.  People v. Santos (1972) 26 Cal.App.3d 397, 400–403, 102 Cal.Rptr. 678 (taping of defendant's conversation with his wife over visitor telephone—because defendant believed police were listening and so told his wife, he had no subjective expectation of privacy);  People v. Todd (1972) 26 Cal.App.3d 15, 17, 102 Cal.Rptr. 539 (taping of defendants' conversation in back of police car—no reasonable expectation of privacy);  People v. Califano (1970) 5 Cal.App.3d 476, 480–483, 85 Cal.Rptr. 292 (taping of defendants' conversation in interview room—no subjective expectation of privacy because defendant believed police were listening);  People v. Blair (1969) 2 Cal.App.3d 249, 256, 82 Cal.Rptr. 673 (taping of defendants'—who were brothers—conversation at police station—defendant was told by police they would be listening to his conversation, so no expectation of privacy);  People v. Hiser (1968) 267 Cal.App.2d 47, 59–61, 72 Cal.Rptr. 906 (taping of defendant's conversation with his inamorata—no right to privacy in a jail).

FOOTNOTES

1.   All references are to the Penal Code unless otherwise indicated.

2.   However, the court in People v. Meneley (1972) 29 Cal.App.3d 41, 51–52, 105 Cal.Rptr. 432, found kidnapping and murder to be of the same class.

3.   Section 1101, subdivision (b), provides:“Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident) other than his disposition to commit such acts.”

4.   In our opinion we rely on the constitutional standard for retroactivity even though we are aware the De Lancie court meticulously restricted its decision to sections 2600 and 2601.  (31 Cal.3d at p. 877, 183 Cal.Rptr. 866, 647 P.2d 142.)   The factors to consider in deciding whether to apply a new judicial standard retroactively may be identical for both statutory and constitutional decisions.  (See People v. Gainer (1977) 19 Cal.3d 835, 853, fn. 18, 139 Cal.Rptr. 861, 566 P.2d 997.)Stiles objected to the tapes on the ground that their introduction violated his right to privacy.   We may review this issue even if his objection was not sufficiently specific to preserve it on appeal.  (See Evid.Code, § 353.)   His trial ended in August 1980 almost two years before the Supreme Court filed De Lancie.   Although a party's failure to object at trial normally precludes an appeal on that point (People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048), a supervening change in the law permits the appellate court to consider the issue.  (People v. De Santiago (1969) 71 Cal.2d 18, 22–23, 76 Cal.Rptr. 809, 453 P.2d 353.)   Because we conclude De Lancie substantially altered the law regarding inmate monitoring (see pp. 11–13, post ), we address Stiles' contentions.

5.   In Stovall v. Denno, supra, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, the Court explained the determination whether a case should be applied retroactively involves consideration of “․ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.”  (Id., at p. 297, 87 S.Ct. at 1970.)

6.   The Court expressly limited its decision to the Fourth Amendment (United States v. Johnson, supra, 102 S.Ct. at p. 2594) but observed “[t]he logic of our ruling, however, is not inconsistent with our precedents giving complete retroactive effect to constitutional rules whose purpose is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function.  [Citations.]  Depending on the constitutional provision involved, additional factors may warrant giving a particular ruling retroactive effect beyond those cases pending on direct review.  [Citation.]”  (Id., at p. 2594, fn. 21.)

7.   Johnson noted other criteria for determining whether a new rule clearly breaks with precedent.   A decision does not work a sharp break “․ unless that ruling caused ‘such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one,’ [citations].  Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, [citations], or disapproves a practice this Court arguably has sanctioned in prior cases, [citations] ․”  (Id., at p. 2588.)

8.   North held statements made by an arrested husband to his wife could not be used against him after the police had indicated to the couple they could converse in private.   The court relied on both the marital relationship as evidenced by Evidence Code section 980, et seq. (marital privilege) and the officer's conduct to grant North's writ of mandate.

9.   The few federal courts addressing this issue almost unanimously reach the same conclusion.  (See Christman v. Skinner (2d Cir.1972) 468 F.2d 723, 726;  Williams v. Nelson (9th Cir.1972) 457 F.2d 376, 377;  Rodriguez v. Blaedow (E.D.Wis.1980) 497 F.Supp. 558, 559–560;  United States v. Paul (6th Cir.1980) 614 F.2d 115, 116, cert. den., 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796.)   Only one court has questioned the practice even though it affirmed a conviction based in part on statements obtained through inmate monitoring.  (United States v. Hearst (9th Cir.1977) 563 F.2d 1331, 1344–1346, cert. den., 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90.)

10.   The court sustained the prosecutor's objections to the following questions:“And when you discussed that selection of No. 2 by Mrs. [R.], did she point out to you that the person's thick neck was one of the features she recognized?“Did Mrs. [R.] tell you when she looked at that photograph that one of the features she recognized was the way he held his head, in photograph No. 2?“Did you make any indication or give her any indications as to who was depicted in photograph No. 2 on the A side?“Did you identify the person in photograph No. 2 as the right suspect?“Did Mrs. [P.] indicate to you that she could not give you a description of either the hair color or the hair length of the taller person?”

11.   Evidence Code section 356 provides:“Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party;  when a letter is read, the answer may be given;  and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”

12.   Stiles does not argue counsel was thus ineffective.  (See People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.)   In any case, we would not address this issue, preferring such matters be brought on petition for habeas corpus in the superior court.  (See In re Lower (1979) 100 Cal.App.3d 144, 152–153, 161 Cal.Rptr. 24.)

13.   Evidence Code section 1238 provides:“Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:“(a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;“(b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory;  and“(c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”

WIENER, Acting Presiding Justice.

WORK, J., and ZUMWALT, J.,* concur.