IN RE: Barbaro Escobedo ARIAS et al.

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Court of Appeal, Third District, California.

IN RE: Barbaro Escobedo ARIAS et al., on Habeas Corpus.

Cr. 13498.

Decided: October 04, 1984

Robert N. Chargin, Public Defender, and David Wellenbrock, Deputy Public Defender, for petitioners. John K. Van de Kamp, Atty. Gen., and J. Robert Jibson, Deputy Atty. Gen., for respondent. Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San Francisco, and American Civil Liberties Union Foundation of Northern California, Inc., as Amici Curiae on behalf of petitioners.

Petitioners are wards of the California Youth Authority (CYA) confined at the Karl Holton School in Stockton.   They seek a writ of habeas corpus to prohibit the use of an electronic sound monitoring security system in the Protestant chapel at the institution.   We shall deny the petition.

The Protestant chapel consists of three rooms, a vestible, sanctuary, and chaplain's office.   The CYA has installed and intends to put into operation a single microphone in the chapel which will be wired into the institution control center.   The microphone will be located in the vestibule and will enable security personnel in the control center to monitor sound in that room and also in the sanctuary when the doors between the two rooms are open.

The system will function primarily as an alarm system but will also be capable of gathering information.   As an alarm, the system will be activated if a preselected decible level is reached.   The preselected level can be adjusted up or down at the control center to approximate the noise level normally accompanying the particular activity taking place in the chapel at any given time.   When the pre-set level is exceeded, a warning light will be illuminated in the control center.   If the higher level persists or recurs within a short time, a speaker will also be activated in the control center.   Once the speaker has been activated, security personnel in the control center will be able audibly to monitor activity within range of the microphone, alerting them to the nature of any disturbance or threat to security in the area.   This information may then be relayed via two-way radio to security staff en route to the scene to prepare them to take appropriate action immediately upon arrival.

At the chaplain's request, the system may be turned off completely at the chapel.   It can only be reactivated at the chapel where security personnel must go to turn it on again.

Petitioners sought a writ of habeas corpus in the San Joaquin Superior Court alleging the use of the proposed sound monitoring system would deprive them of their constitutional rights of religious freedom and privacy.   After an evidentiary hearing, the superior court denied relief.   Petitioners applied to this court for a writ and we denied the petition peremptorily.   Petitioners then filed their petition in the Supreme Court which issued an order to show cause returnable before this court.

Petitioners participate in Protestant religious activities at Karl Holton.   These include worship, music and art, Bible studies, prayers, auricular confessions, individual spiritual counseling, and group counseling.   They assert these activities are protected by federal and state guarantees of religious freedom and privacy.  (See U.S. Const., Amend. I;  Cal. Const., art. I, §§ 1, 4;  Pen.Code, § 636;  Welf. and Inst.Code, § 1705.)   They claim that use of the proposed monitoring system would unconstitutionally infringe these rights.

 “[T]hough his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime.”  (Wolff v. McDonnell (1974) 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935, 950.)   A prison inmate retains those constitutional rights that are consistent with his status as a prisoner or with the legitimate penological objectives of the correctional system.  (Pell v. Procunier (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495.)   However, the maintenance of institutional security and order in prisons is a legitimate governmental interest that may limit a prisoner's retained constitutional rights.1  (Hudson v. Palmer (1984) ––– U.S. ––––, –––– – ––––, 104 S.Ct. 3194, 3197–3200, 82 L.Ed.2d 393;  Bell v. Wolfish (1979) 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447, 472–473.)   Our task is to reach accommodation between institutional needs and objectives and constitutional provisions.  (Id., at p. 546, 94 S.Ct. at p. 1877, 60 L.Ed.2d at p. 473;  Wolff v. McDonnell, supra, 418 U.S. at p. 556, 94 S.Ct. at p. 2974, 41 L.Ed.2d at p. 951.)

I.

 The free exercise of religion guaranteed by the First and Fourteenth Amendments is a right enjoyed by state prisoners.2  (Cruz v. Beto (1972) 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263;  Cooper v. Pate (1964) 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030.)   As a general rule, prisoners must be afforded reasonable opportunities to exercise their religious freedom.  (Cruz v. Beto, supra, 405 U.S. at p. 322, fn. 2, 92 S.Ct. at p. 1081, fn. 2, 31 L.Ed.2d at p. 268, fn. 2.)   Nonetheless, a prisoner does not have an absolute right to practice his religion in accord with his desires.  “[T]he needs of the institution and penological objectives must be balanced against the right of the individual prisoner.”  (Mawby v. Ambroyer (E.D.Mich.1983) 568 F.Supp. 245, 251;  Jihaad v. O'Brien (6th Cir.1981) 645 F.2d 556, 564.)

Most of the religious activities at the chapel in which petitioners participate are of the kind generally conducted in a communal setting.   Worship services, group prayers, bible studies and the like are customarily conducted in public.   Petitioners do not assert that any part of such activities is confidential in nature by virtue either of religious doctrine, custom or actual practice.

Notwithstanding the open, public nature of such chapel services, several clergymen, including the protestant chaplain at Karl Holton, testified that the installation of an electronic sound monitoring system in the chapel would “chill” or “dampen” religious expression by the inmates and “would be an infringement upon the privacy and the relationship between the chaplain and his parishioners.”   On the other hand, the protestant chaplain at the California Medical Facility at Vacaville, speaking on behalf of a statewide organization representing chaplains employed at state institutions, testified by affidavit that an electronic sound monitoring system in the chapel “presents neither an infringement of the right to free exercise of religion, nor an invasion of religious privacy, since protestant worship is traditionally a public function to which all are invited;”  accordingly, “the electronic sound security system in the chapels at Karl Holton strikes the proper balance between the security needs of the institution and the wards' rights to religious freedom and privacy.”

 Addressing the conflict between clerical witnesses, counsel for petitioners argues that we are bound by the testimony of those clergymen who insist that electronic sound monitoring in the chapel infringes religious freedom.   To do otherwise, it is argued, would involve the court in a dispute over religious doctrine, a role forbidden to it by the First Amendment (Presbyterian Church v. Hull Church (1969) 393 U.S. 440, 450, 89 S.Ct. 601, 606, 21 L.Ed.2d 658, 666.)   However, no clerical witness makes objection to electronic monitoring as an article of faith.   The disagreement between the clerics involves not ecclesiastical doctrine but legal doctrine.   Whether the use of an electronic sound monitoring security system in the chapel infringes petitioners' religious freedom is a question for judicial resolution.

Assuming that electronic sound monitoring may “chill” or “dampen” religious expression even in services of the type that are traditionally open and public, we must determine whether petitioners' right of religious freedom to that extent must yield to the governmental interest in institutional security, as manifested in the proposal to operate an electronic sound monitoring system.   In weighing the competing interests, we are mindful that “the burden is not on prison officials to show affirmatively that restricted activities would be detrimental to proper penological objectives or would constitute a present danger to security and order.  [Citation.] ․  The state needs only to produce evidence that to permit the exercise of first amendment rights would create a potential danger to institutional security.   This evidence may consist of expert testimony from the responsible officials, provided they testify to opinions that are ‘held “sincerely” and [are] arguably correct.’  [Citation.]  In determining whether the state has met its burden of production, the court must be mindful of the Supreme Court's instruction that restrictions on first amendment rights may be deemed valid when prison officials, in the exercise of their informed discretion, conclude that there is a potential danger to security, even though the same showing might be unimpressive if submitted to justify restrictions upon members of the general public.  [Citation.]  Once the state has met its burden of going forward with the evidence, the courts must defer to the expert judgment of the prison officials unless the prisoner proves by ‘substantial evidence ․ that the officials have exaggerated their response’ to security considerations [citations], or that their beliefs are unreasonable.”  (Fn. omitted.)  (St. Claire v. Cuyler (3d Cir.1980) 634 F.2d 109, 114–115;  Jones v. North Carolina Prisoners' Union (1977) 433 U.S. 119, 128–129, 133, fn. 9, 97 S.Ct. 2532, 2539–2540, 2541, fn. 9, 53 L.Ed.2d 629, 640–641, 643, fn. 9;  Pabon v. McIntosh (E.D.Penn.1982) 546 F.Supp. 1328, 1336.)

 CYA officials testified that continued reliance upon the security system presently in use in the chapel involved risks.   Staff are presently equipped with individual FM beepers which, when activated by the wearer, set off a buzzer in the institution's security control center.   The beepers provide inadequate protection for several reasons.   First, they must be activated manually by the wearer.   Hence, they are ineffectual if the wearer is divested of his beeper or incapacitated before he can activate the alarm.   Second, when activated, beepers notify security personnel that a problem exists, but provide no information regarding the nature or extent of the problem, nor do they permit the wearer to communicate with security staff.   Finally, because beepers are provided only to staff, wards are unprotected by the system unless a staff member is present and able to sound the alarm when a problem arises.

The electronic monitoring system, which has none of these shortcomings, would shorten security personnel's response time in an emergency and minimize the risk to responding staff.   CYA officials are of the opinion the system is necessary in areas where wards congregate, including the chapels, to protect both staff and wards and maintain order and security in the institution.

The foregoing evidence satisfies the state's burden.   The burden thus shifts to petitioners to prove by substantial evidence that the authorities' security concerns are unreasonable or their responses exaggerated.  (St. Claire v. Cuyler, supra. 634 F.2d at p. 116.)   Petitioners do not suggest that the officials are not sincere in their belief that the monitoring system is necessary to improve internal security.   Rather, they seek to satisfy their burden in other ways.   First, they argue the system is unnecessary because there has never been an incident of violence in the chapel.   However, it cannot be gainsaid that responsible prison officials must be permitted to take reasonable steps to forestall potential threats to institutional security “before the time when they can compile a dossier on the eve of a riot.”   (Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at pp. 132–133, 97 S.Ct. at p. 2541, 53 L.Ed.2d at p. 643;  Pell v. Procunier, supra, 417 U.S. at p. 825, 94 S.Ct. at p. 2805, 41 L.Ed.2d at p. 503.)   Second, petitioners argue that because no California prison chapel has an electronic monitoring system, a fortiori, the system is unnecessary in a CYA chapel.   The argument is unpersuasive.  “Whether a measure is essential to institutional security will depend on many factors, and thus may vary from one facility to the next.”  (De Lancie v. Superior Court, supra, 31 Cal.3d at p. 872, fn. 6, 183 Cal.Rptr. 866, 647 P.2d 142.)   Finally, petitioners claim use of the proposed system is unreasonable because less restrictive means exist for providing additional security in the chapel.   Although there are other types of security systems available, each of these systems suffers from shortcomings similar to the FM beepers now in use in the chapel.   Thus, these systems do not provide acceptable alternatives to that proposed here, since they are not “equally effective” in promoting institutional security.  (See In re Bell (1980) 110 Cal.App.3d 818, 822, 168 Cal.Rptr. 100.)

Deferring to the expert judgment of the CYA authorities, we cannot say their views are not “arguably correct.”  (See Jones v. North Carolina Prisoners' Union, supra, 433 U.S. at p. 127, 97 S.Ct. at p. 2539, 53 L.Ed.2d at p. 639–640;  St. Claire v. Cuyler, supra, 634 F.2d at p. 116.)   We conclude that use of the proposed system to monitor traditionally open, public worship services and other communal religious activities will not unlawfully infringe petitioners' constitutional right of religious freedom.

 Petitioners contend their statutory right of religious freedom is invaded by electronic monitoring of communal religious activities.  Welfare and Institutions Code section 1705 extends to those in CYA custody “reasonable opportunities to exercise religious freedom.”   This statute, however, does not enlarge the right secured by the Constitution (see 4 Pacific L.J. 418) and therefore is not violated where the constitutional right is not abridged.

II.

Petitioners' claim that operation of an electronic sound security system to monitor religious activities traditionally conducted in an open, public setting will violate their right of privacy as guaranteed by article I, section 1, of the California Constitution.   For present purposes, we assume that the California Constitution guarantees petitioners that degree of privacy not inconsistent with institutional security and public protection.  (Cf. De Lancie v. Superior Court, supra, 31 Cal.3d at p. 882, 183 Cal.Rptr. 866, 647 P.2d 142, dis. opn., Mosk, J.:  “The concept of one purporting to enjoy privacy while he is under legally authorized supervision would appear to be a monumental anomaly.”)

 Where the claimed violation of privacy consists of “police surveillance in the criminal context” (People v. Crowson (1983) 33 Cal.3d 623, 629, 190 Cal.Rptr. 165, 660 P.2d 389) which is subject to constitutional strictures upon unreasonable searches and seizures, the right of privacy affords no broader protection than that provided by the constitutional proscriptions against unlawful searches and seizures (ibid.;  People v. Owens (1980) 112 Cal.App.3d 441, 449, 169 Cal.Rptr. 359).   In other cases, an intrusion into the right of privacy must be justified by a compelling state interest.  (Loder v. Municipal Court (1976) 17 Cal.3d 859, 864, 132 Cal.Rptr. 464, 553 P.2d 624;  White v. Davis (1975) 13 Cal.3d 757, 775, 120 Cal.Rptr. 94, 533 P.2d 222.)

 It is unnecessary to decide whether the CYA may justify the use of electronic monitoring as against a claim of privacy infringement by the less rigorous standards by which the lawfulness of searches and seizures is determined.  “[T]he justifiable reasons for invading an inmate's privacy are both obvious and easily established․”  (Donaldson v. Superior Court (1983) 35 Cal.3d 24, 31, 196 Cal.Rptr. 704, 672 P.2d 110, quoting from Bonner v. Coughlin (7th Cir.1975) 517 F.2d 1311, 1316.)   As noted above, the CYA has satisfactorily demonstrated that electronic monitoring is reasonably necessary to upgrade the existing system in order to insure the security of the institution and the protection of the wards and staff.   Those purposes constitute compelling state interests which, to the extent reasonably required, will justify inroads into otherwise inviolable areas of privacy (De Lancie v. Superior Court, supra, 31 Cal.3d at pp. 868, 877, 183 Cal.Rptr. 866, 647 P.2d 142;  People v. Owens, supra, 112 Cal.App.3d at p. 450, 169 Cal.Rptr. 359, conc. opn., White, P.J.).   We conclude that electronic monitoring of traditionally open and public religious activities does not violate petitioners' constitutional right of privacy.

III.

Thus far we have considered the use of the proposed electronic security system to monitor traditionally open and public religious activities in the chapel.   We turn now to petitioners' claim that monitoring of those religious activities traditionally conducted in a private setting, such as individual counselling and auricular confessions, is unlawful.

Petitioners' claim to the inviolability of confessions, religious counselling and the like is recognized by statute.  Penal Code section 636 provides that “Every person, who, without permission from all parties to the conversation, eavesdrops on or records by means of an electronic or other device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer ․ and such person's ․ religious advisor ․ is guilty of a felony.”

 Respondent maintains that the chaplain's office is a suitable location for private religious activities.   There was evidence in the superior court hearing that the electronic sound system was incapable of monitoring the content of normal conversation conducted in the chaplain's office with the door closed.   The superior court impliedly credited such evidence, a factual determination to which we accord great weight in this proceeding (In re Wright (1978) 78 Cal.App.3d 788, 801–802, 144 Cal.Rptr. 535).   In any event, respondent is not constitutionally bound to exempt any particular area of the institution, such as the chaplain's office, from security surveillance.   Rather respondent's obligation is to afford petitioners reasonable opportunities to exercise their religious freedom (Cruz v. Beto, supra, 405 U.S. at p. 322, fn. 2, 92 S.Ct. at p. 1081, fn. 2, 31 L.Ed.2d 268, fn. 2;  Welf. & Inst.Code, § 1705).   In respect to participation in confessionals and other private religious activities, any area of the chapel is available for such purposes when the sound system is not operating.   Since the sound system can be turned off at the chaplain's request and can thereafter be reactivated only at the chapel, the sanctity of private worship is assured.

Respondent disavows any intention or desire to deny wards reasonable opportunities to speak in confidence with a religious advisor, and indeed no intrusions upon the privacy of such activities have been alleged or proved.   We are satisfied that the electronic monitoring system as proposed will accommodate both institutional security needs and reasonable opportunities for wards to engage in private communications with their religious advisors.

The order to show cause is discharged and the petition for writ of habeas corpus is denied.

FOOTNOTES

1.   The relevant cases deal factually with prisoners in adult penal institutions.   Although wards confined involuntarily in a CYA institution are not prison inmates, they are similarly situated with respect to the issues here under consideration and are entitled to no fewer rights than prison inmates (see Pen.Code, § 2600;  De Lancie v. Superior Court (1982) 31 Cal.3d 865, 870–872, 183 Cal.Rptr. 866, 647 P.2d 142).

2.   Although petitioners rely also on the free exercise clause of the California Constitution (Cal. Const., art I, § 4), this provision provides them no greater protection than is afforded under the federal constitution (U.S. Const., Amend. I).  (See People v. Woody (1964) 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813;  In re Serna (1978) 76 Cal.App.3d 1010, 143 Cal.Rptr. 350;  see also People v. Longwill (1975) 14 Cal.3d 943, 951, fn. 4, 123 Cal.Rptr. 297, 538 P.2d 753.)

PUGLIA, Presiding Justice.

EVANS and CARR, JJ., concur.