ROBINSON v. PEOPLE (1980)

Petitioner, James Lee Robinson, seeks a writ of mandate, pursuant to Penal Code section 1538.5, subdivision (i), directing the respondent to grant his motion to suppress a tape recording of a conversation with his wife.

We conclude that petitioner was constitutionally entitled to the privacy of his marital communication and that the warrantless seizure of the conversation by eavesdropping requires the suppression of the recording of the conversation. Accordingly, we shall issue the writ.

FACTS

We read the facts in the light most favorable to the real party in interest.

On March 13, 1979, petitioner and his wife, Jodean, were arrested by officers of the Sacramento Police Department and apparently booked into the county jail. At about 2:30 p. m. they were brought to the burglary section of the Sacramento Police Department. The record does not reveal the physical relationship of the police department to the jail.

They were placed alone in adjacent, locked interview rooms for twenty to thirty minutes during which time they attempted to talk to each other through the common wall while burglary detail officers attempted surreptitiously and unsuccessfully, by ear and by eavesdropping equipment, to listen in.

Jodean was then removed by officers from her room and placed in her husband's interview room. The officers left the room immediately, the door was closed and locked and a hidden recording device was activated. It is the content of the resulting recording which petitioner seeks suppressed. At some point prior to the eavesdropping, petitioner and his wife were given Miranda warnings but their responses are not revealed in the record.

Officer Pogue testified that neither petitioner nor Jodean inquired whether they could have a private conversation nor were they informed that the room contained an eavesdropping device. He further testified that it was common practice in the burglary detail to place two suspects together and record their conversations if it would be of benefit to the investigation and that such was a standard facet of the interrogation of suspects.

Jodean testified that she believed the room in which she and her husband were placed was totally private, that no devices were visible to indicate the room was not private and that her conversations were confidential.

I

This case tenders the constitutionality, under the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution, of the secret exploitation of marital confidences, exchanged in a police station interview room, accomplished solely for the purpose of obtaining possibly incriminating evidence.¹

Petitioner claims that this case is controlled by North v. Superior Court (1972) 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, and the constitutional principles upon which it rests. We agree. We shall examine the application of North to this case and its constitutional measure of privacy expressed in terms of “a reasonable expectation of privacy.”

As will be shown, the measure of privacy has not been unambiguously defined or applied. On occasion its use has the appearance of a label affixed to a preordained result. We shall examine the constitutional meaning of “reasonable expectation of privacy” as measured variously by (a) a claim of entitlement to privacy; (b) the actual (“subjective”) circumstances in which the claim arises; and (c) a constitutional norm of reasonableness.

We begin with an analysis of North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305. In North, the “petitioner's wife visited petitioner at the Palm Springs Police Department where he was incarcerated. This visit, which occurred during ordinary visiting hours, took place in Detective Neesan's own office, which was in the same building as the jail. According to Neesan, it is a frequent and normal practice to permit such visits to take place in a detective's office. Neesan was present during the initial ‘contact’ between petitioner and his wife; he then left the room and closed the door behind him. The subsequent five-minute conversation between petitioner and his wife was secretly monitored and tape-recorded.” (Id., at p. 305, 104 Cal.Rptr. at p. 834-835, 502 P.2d at p. 1306-1307.)

The court reasoned that although “an inmate of a jail ordinarily has no right of privacy . . . based upon a policy favoring the use by jail authorities of reasonable security measures . . . (P) (there are) exceptions which focus upon the special relationship between the communicants.” (Id., at pp. 308-309, 104 Cal.Rptr. at pp. 837-838, 502 P.2d at pp. 1309-1310.) A marital communication “is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.” (Evid.Code, s 917.)

“In the instant case, . . . the conversation occurred in a detective's private office under circumstances which strongly indicate that petitioner and his wife were lulled into believing that their conversation would be confidential. Although the record does not disclose whether or not Neesan made any representations to that effect, his admitted conduct spoke as clearly as words first by surrendering to petitioner and his wife Neesan's own private office so that they might converse and then by exiting and shutting the door, leaving them entirely alone. Certainly, nothing in Neesan's actions indicated that petitioner's conversation would be monitored. The foregoing circumstances, coupled with the statutory presumption that a conversation between spouses is presumed to have been made in confidence (Evid.Code, s 917, supra), constituted a sufficient showing by petitioner to establish a reasonable expectation of privacy.” (North v. Superior Court, supra, 8 Cal.3d at pp. 311-312, 104 Cal.Rptr. at p. 839, 502 P.2d at p. 1311.)

The court emphasized “that nothing in our opinion should be deemed a disapproval of the common practice of monitoring inmates' conversations with others, including their spouses, in visiting rooms or similar places. That practice seems reasonably necessary in order to maintain jail security and . . . is not proscribed by law.” (Fn. omitted.) (Id., at p. 312, 104 Cal.Rptr. at p. 839-840, 502 P.2d at p. 1311-1312.) This proviso was adhered to in People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1, in which a husband and wife conversed in a common jail visiting room over an intercom system. (See also People v. Santos (1972) 26 Cal.App.3d 397, 400-402, 102 Cal.Rptr. 608; People v. Finchum (1973) 33 Cal.App.3d 787, 790-791, 109 Cal.Rptr. 319.)

North expressly relies upon principles having their origin in Katz v. United States (1967) 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. In Katz, the United States Supreme Court held that “(t)he Government's activities in electronically listening to and recording the petitioner's words (in a public telephone booth) violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment. . . .” (Emphasis added.) (Id., at p. 353, 88 S.Ct. at p. 512.) Although the majority opinion in Katz did not use the phrase “reasonable expectation of privacy,” Justice Harlan in concurrence said: “As the court's opinion states, ‘the Fourth Amendment protects people, not places.’ The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a ‘place.’ My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” (Id., at p. 361, 88 S.Ct. at p. 516.)

In subsequent cases, the Harlan phrase has been made the touchstone of the constitutional right of privacy as against surreptitious governmental eavesdropping. But the distinction which Harlan made between the “subjective” and “reasonable” components has been blurred or obliterated and the significance of the distinction has been little explored. (See Amsterdam, Perspectives on the Fourth Amendment (1974) 58 Minn.L.Rev. 349.)

II

We turn to examine some aspects of the constitutional meaning of “reasonable expectation of privacy.” Justice Harlan assigned a dual meaning, which we shall shortly consider.

The court in North observed that: “ ‘As the Supreme Court stated in Katz v. United States, (supra,) 389 U.S. 347, 351 (88 S.Ct. 507, 511, 19 L.Ed.2d 576) . . . , ”What a person knowingly exposes to the public . . . is not a subject of Fourth Amendment protection. (Citations.) But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.“ ‘ ” (North v. Superior Court, supra, 8 Cal.3d at p. 311, 104 Cal.Rptr. at p. 839, 502 P.2d at p. 1311 (quoting from People v. Blair (1969) 2 Cal.App.3d 249, 256, 82 Cal.Rptr. 673).) (See also People v. Triggs (1973) 8 Cal.3d 884, 106 Cal.Rptr. 408, 506 P.2d 232.)

We perceive two important ideas here. First, a person may not wish to claim privacy to which he otherwise is entitled.² Second, a claim of privacy may be made and entitlement to privacy accrue even in circumstances in which no ordinary expectation of (entitlement to) privacy may exist. (See North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305.) We shall return to this second point in the context of this case.

We thus distinguish between a claim of privacy, which focuses upon the desire of the claimant, and an entitlement to privacy, which focuses upon the conditions under which privacy is to be constitutionally recognized. Under certain circumstances a claim may be transmuted into an entitlement and under other circumstances an entitlement may arise notwithstanding a failure to make a claim (as when a would-be claimant mistakes his entitlement).

We return to the Harlan distinction between subjective and reasonable expectation of privacy, both of which focus on the conditions under which an entitlement to privacy arises.

Justice Harlan distinguished between “an actual (subjective) expectation of privacy and (an) expectation . . . that society is prepared to recognize as ‘reasonable.’ ” (Katz v. United States, supra, 389 U.S. at p. 361, 88 S.Ct. at p. 516.)

The parenthetical use of the term “subjective” has an odd ring to it as a synonym of “actual,” for it does not mean something personal to the claimant of privacy. Rather, it means, we believe, that the claimant's expectation (entitlement) is subject to (measured by) the “actual” circumstances in which the claim is made and over which the claimant (presumably) has little or no control. The test of this “subjective” (actual) state is both normative and factual. An actual (subjective) expectation of privacy is critically dependent upon the degree of privacy, if any, that our society or government is willing to recognize. It is dependent upon facts and norms created independently of constitutional considerations.

As has been persuasively pointed out, a misplaced reliance upon a subjective measure of entitlement to privacy leads to a distinctly Orwelliam result. “An actual, subjective expectation of privacy obviously has no place in a statement of what Katz held or in a theory of what the fourth amendment protects. It can neither add to, nor can its absence detract from, an individual's claim to fourth amendment protection. If it could, the government could diminish each person's subjective expectation of privacy merely by announcing half-hourly on television that 1984 was being advanced by a decade and that we were all forth with being placed under comprehensive electronic surveillance.” (Amsterdam, Perspectives on the Fourth Amendment, supra, at p. 384.)

United States Supreme Court Justice Stevens made the same point recently in dissent in a case involving the Fourth Amendment rights of inmates of a federal custodial facility. “Although (the majority) recognizes the detainee's constitutionally protected interest in privacy, the Court immediately demeans that interest by affording it ‘diminished scope.’ The reason for the diminution is the detainee's limited expectation of privacy. (Citation.) At first blush, the Court's rationale appears to be that once the detainee is told that he will not be permitted to carry on any of his activities in private, he cannot ‘reasonably’ expect otherwise. But ‘reasonable expectations of privacy’ cannot have this purely subjective connotation lest we wake up one day to headlines announcing that henceforth the Government will not recognize the sanctity of the home but will instead enter residences at will. The reasonableness of the expectation must include an objective component that refers to those aspects of human activity that the ‘reasonable person’ typically expects will be protected from unchecked Government observation.” (Bell v. Wolfish (1979) 441 U.S. 520, 589, fn. 21, 99 S.Ct. 1861, 1900, fn. 21, 60 L.Ed.2d 447, 500-501, fn. 21, (dis. opn. of Stevens, J.).)

Justice Harlan, since Katz, has repudiated the Orwellian consequences of his creation. “The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present. Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.” (United States v. White (1971) 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453, 478 (dis. opn. of Harlan, J.).)

Likewise, we reject a subjective measure of privacy which contains the Orwellian flaw. The proper focus of a constitutional measure of privacy is an expectation (entitlement) which is “reasonable” in constitutional terms. The expectation of privacy which is reasonable is that to which a free people is entitled in a country which constitutionally values privacy. This requires resort to the values which privacy serves. As a corollary, any limitation on privacy by governmental intrusion must find justification in governmental interests which are compelling. This brings us to an analysis of the privacy value here present and the governmental interest claimed to justify the diminution of the entitlement to privacy in custodial settings.

III

This case puts in issue a fundamental privacy value: the confidence of a marital communication.

As North v. Superior Court, supra, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, emphasizes, a marital conversation between spouses is statutorily presumed to have been made in confidence. (Evid.Code, s 917.) There is no doubt that petitioner and his wife claimed the privacy of their communication. The petitioner's wife testified that she felt the room in which she and her husband were placed was totally private.

In North the court found that, although no express representations were made, the police conduct induced the spouses to believe that their conversation would be private and that such conduct coupled with the marital presumption created a protectable expectation of privacy notwithstanding a governmental interest in jail security.

The facts in this case are close to those in North, even assuming, for the moment, the existence of a governmental interest in custodial security. Petitioner and his wife attempted to have a conversation through a common wall. When officers could not hear the conversation Mrs. Robinson was removed from one room and placed in her husband's interview room, without the presence of police officers and the door closed, obviously for the purpose of permitting them to have a conversation in circumstances having the indicia of privacy.

Although the use of “an interrogation room (makes it) less likely (to) cause the parties thereto to believe that they were being extended the favor of privacy,” (In re Joseph A. (1973) 30 Cal.App.3d 880, 885-886, 106 Cal.Rptr. 729, 733) Mrs. Robinson testified that there were no visible signs of eavesdropping equipment and that she in fact believed the conversation to be private. Neither petitioner nor his wife was informed of the presence of the eavesdropping device.

These facts, coupled with the marital presumption, as in North, created an expectation of privacy which was unconstitutionally invaded by the warrantless intrusion by eavesdropping.

IV

This case tenders an issue not considered in North. North assumed that the reasonableness of the North's expectation of privacy was to be considered in the context of a governmental interest in custodial security. North said that jail inmates are excluded from rights of privacy because of a “general rule . . . based upon a policy favoring the use by jail authorities of reasonable security measures.” (North v. Superior Court, supra, 8 Cal.3d at p. 309, 104 Cal.Rptr. at p. 837, 502 P.2d at p. 1309.) In this regard, North follows the general rule that limits the right of privacy and hence the reasonableness of an expectation of privacy by governmental interests rooted in penological and custodial needs.

The United States Supreme Court has said that generally a prisoner loses those rights that are “inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” (Pell v. Procunier (1974) 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495, 501; Jones v. North Carolina Prisoners' Union (1977) 433 U.S. 119, 129, 97 S.Ct. 2532, 2539, 53 L.Ed.2d 629, 641.) “We start with the familiar proposition that ‘(l)awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ (Citations.)” (Emphasis added.) (Pell v. Procunier, supra, 417 U.S. at p. 822, 94 S.Ct. at p. 2804.) “(G)iven the realities of institutional confinement, any reasonable expectation of privacy that a detainee retained necessarily would be of a diminished scope. (Citation.)” (Bell v. Wolfish, supra, 441 U.S. at p. 557, 99 S.Ct. at p. 1883, 60 L.Ed.2d at p. 480.)

But the custodial coin has two sides. The limitation on privacy is not absolute but is to be measured by the governmental interest at stake. The diminution of privacy may occur only to the extent made necessary by the interest served.

California has expressed the constitutional policy in Penal Code section 2600, which provides: “A person sentenced to imprisonment in a state prison may, during any such period of confinement, be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public.” Although Penal Code section 2600 is applicable only to prisons, the policy it expresses is equally applicable to other custodial settings.

“(I)t has long been judicially recognized in California and in states with similar statutes that ‘prisoners, while forfeiting, as a necessary corollary of prison life, significant rights and privileges enjoyed by the general populace, retain those basic rights which are not incompatible with the running of the penal institution.’ ” (Payne v. Superior Court (1976) 17 Cal.3d 908, 913, 132 Cal.Rptr. 405, 409, 553 P.2d 565, 569, citing to Newkirk v. Butler (S.D.N.Y.1973) 364 F.Supp. 497, 501; see also In re van Geldern (1971) 5 Cal.3d 832, 836, 97 Cal.Rptr. 698, 489 P.2d 578.)

These cases uniformly limit the diminution of privacy to the purposes served by penal institutions. It follows that the diminution of the right depends upon that which justifies the diminution and if no custodial or penological objective is served the diminution of the right is therefore not “justified.”

Here, the sole purpose of the eavesdropping was to obtain incriminating evidence. There is no suggestion that a penological purpose was being served or that the security of a custodial institution was in any way involved. It does not even appear that the place of interview was physically a part of the jail facilities. The Robinsons, unlike the Norths, were not in a visiting situation (cf. People v. Hill, supra 12 Cal.3d 731, 117 Cal.Rptr. 393, 528 P.2d 1) or in jail cells (cf. People v. Suttle (1979) 90 Cal.App.3d 572, 577-580, 153 Cal.Rptr. 409), and if the officers had the slightest concern for security relating to the marital communication that concern would have been served by not allowing the defendants to speak at all.

Although petitioner and his wife were in custody, no custodial purpose was served by the officers' conduct. The rationale upon which the diminution of their privacy may be justified is not present.

Accordingly, petitioner had a reasonable expectation of privacy in his marital communication and the warrantless invasion of his privacy violates rights arising under the United States and California Constitutions. We do not reach the other contentions of the petition.

Let a writ of mandate issue directing the superior court to suppress the tape recording of petitioner's conversation with his wife. The order to show cause, having fulfilled its function, is discharged.

I dissent.

The conclusion arrived at by the majority opinion is aptly described by the exclamation of Lewis Carroll's character Alice in Alice in Wonderland as “curiouser and curiouser.” The result effectively emasculates existing California and federal decisional authority (Lanza v. New York (1962) 370 U.S. 139, 143, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384, 387-388; People v. Estrada (1979) 93 Cal.App.3d 76, 99, 155 Cal.Rptr. 731; People v. Suttle (1979) 90 Cal.App.3d 572, 577, 153 Cal.Rptr. 409; People v. Newton (1974) 42 Cal.App.3d 292, 116 Cal.Rptr. 690; People v. Todd (1972) 26 Cal.App.3d 15, 17, 102 Cal.Rptr. 539; People v. Hill (1974) 12 Cal.3d 731, 765, 117 Cal.Rptr. 393, 528 P.2d 1; and North v. Superior Court (1972) 8 Cal.3d 301, 311, 104 Cal.Rptr. 833, 502 P.2d 1305), which decree that incarcerated persons (here husband and wife) do not have a reasonable expectation of privacy in their jailhouse conversations.

In assessing Robinson's claim that his Fourth Amendment rights were violated by monitoring his conversation with his wife in a police interrogation room, I begin by acknowledging the well-settled rule that there is no reasonable expectation of privacy in the jailhouse. The Supreme Court in North v. Superior Court, supra, 8 Cal.3d at page 311, 104 Cal.Rptr. at page 839, 502 P.2d at page 1311, stated, “In view of the general rule that an inmate of a jail or prison has no reasonable expectation of privacy, it would follow that an ordinary jailhouse conversation between spouses could not be deemed to have been ‘made in confidence,’ as required by Evidence Code section 980 to establish the privilege.

“In the instant case, however, the conversation occurred in a detective's private office under circumstances which strongly indicate that petitioner and his wife were lulled into believing that their conversation would be confidential.” Parenthetically, it should be noted that in North, the wife was not in police custody as is the circumstance in the present instance.

The conclusion of the majority that the present factual situation is cast in the mold of the exception described in North v. Superior Court, supra 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, can only be achieved by judicial legerdemain.

The majority in North expressly recognized that “an ordinary jailhouse conversation between spouses could not be deemed to have been ‘made in confidence,’ . . .” (P. 311, 104 Cal.Rptr. p. 839, 502 P.2d p. 1311.) In that case it was the police officer's obvious attempt to create an expectation of privacy which led the majority to conclude that the expectations of the Norths were reasonable. In the absence of such unusual circumstances, spouses can have no reasonable expectation that their jailhouse conversation will be private. This is particularly so where both are in custody. (See People v. Hill, supra, 12 Cal.3d at p. 765, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Newton, supra, 42 Cal.App.3d at p. 296, 116 Cal.Rptr. 690; People v. Todd, supra, 26 Cal.App.3d at p. 17, 102 Cal.Rptr. 539; People v. Suttle, supra, 90 Cal.App.3d at p. 577, 153 Cal.Rptr. 409; People v. Martinez (1978) 82 Cal.App.3d 1, 15, 147 Cal.Rptr. 208.)

Robinson and his wife were both under arrest. Each was placed in a separate interrogation room and later joined in a single room. The record fails to disclose any evidence whatsoever that the officers created or attempted to create an expectation or belief that any conversation between Robinson and his wife would be private. Obviously, under such circumstances, they cannot reasonably claim an expectation of privacy since incarcerated persons have no reasonable expectation of privacy with respect to their conversations. (People v. Estrada, supra, 93 Cal.App.3d at p. 99, 155 Cal.Rptr. 731.)

Jailhouse conversations between prisoner spouses cannot be expected to be confidential. A jail does not share the attributes of the privacy of a home, an office, or a hotel room. In prison, subject only to the exception articulated in North and recognized in Hill, electronic surveillance has traditionally been and is the order of the day. (See People v. Estrada, supra, 93 Cal.App.3d at p. 99, 155 Cal.Rptr. 731; Lanza v. New York, supra, 370 U.S. at p. 143, 82 S.Ct. at p. 1220.)

The majority conclusion conveniently ignores existing constitutional authority as articulated by the Supreme Court (People v. Hill, supra, 12 Cal.3d at p. 765, 117 Cal.Rptr. 393, 528 P.2d 1, and others), decreeing a lack of expectation of privacy in jailhouse conversations except in very narrowly defined factual situations; and, in an over-zealous attempt to destroy any right of official electronic surveillance in jail or prison, the majority fabricates a factual circumstance to accommodate the exception carved out in North and redefined in Hill.

It is inconceivable that Robinson and his wife, while in custody, reasonably expected their conversation, conducted in a police interrogation room, to be confidential. The reasoning by which the majority achieves that result is, by its novel manipulation of fact and law, simply incredulous.

For the foregoing reasons, I would deny the petition to suppress.

FOOTNOTES

1.  We do not here consider the express and expanded right of privacy contained in article I, section 1, of the California Constitution, which creates inter alia a privacy right to the control of personal information. “Fundamental to our privacy is the ability to control circulation of personal information.” (White v. Davis (1975) 13 Cal.3d 757, 774, 120 Cal.Rptr. 94, 106, 533 P.2d 222, 234. See also Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839; Division of Medical Quality v. Gherardini (1979) 93 Cal.App.3d 669, 677, 156 Cal.Rptr. 59; Central Valley Chapter of 7th Step Foundation, Inc. v. Younger (1979) 95 Cal.App.3d 212, 235, 157 Cal.Rptr. 117.)

2.  The determination whether the claim has been made may require resort to the facts, but solicitude for the right involved requires more evidence than a failure of the individual to demonstrate his claim by an overt act. The California Supreme Court has shifted from the use of the term “exhibit” to “harbor” an expectation of privacy at the urging of Justice Tobriner in consideration of this concern. “. . . I wish to avoid any suggestion that the expectation of privacy must be demonstrated by an overt act of defendant, . . .” (People v. Bradley (1969) 1 Cal.3d 80, 90, fn. 1, 81 Cal.Rptr. 457, 463, 464, fn. 1, 460 P.2d 129, 135-136, fn. 1 (conc. and dis. opn. of Tobriner, J.).) (Compare North v. Superior Court (1972) 8 Cal.3d 301, 308, 104 Cal.Rptr. 833, 502 P.2d 1305, with People v. Hill (1974) 12 Cal.3d 731, 764, 117 Cal.Rptr. 393, 528 P.2d 1.)

BLEASE, Associate Justice.

REYNOSO, J., concurs.