IN RE: Joseph William AXTELL on Habeas Corpus. (1981)

During the pendency of his direct appeal¹ in 1 Criminal No. 20778, _ Cal.App.3d _, _ Cal.Rptr. _, from a judgment on a nolo plea, on July 30, 1980, defendant Axtell filed the instant petition for a writ of habeas corpus. He alleges that his prison sentence was unlawful as it was based on a personal letter obtained in violation of: 1) his right to privacy (Cal.Const. Art. I, § 1); (2) his right to be free from unnecessarily broad censorship (U.S.Const., First and Fourteenth Amends.; Pen.Code, § 2600); 3) his right to be free from unlawful searches and seizures (U.S.Const., Fourth Amend.; Cal.Const., Art. I, § 13); and 4) his right to counsel at the sentencing stage (U.S.Const., Sixth Amend.; state Const., Art. I, § 13). For the reasons set forth below, we have concluded that the instant petition must be denied.

As indicated in our summary of the pertinent facts based on the probation report in No. 20778, the report quoted from a letter to a friend defendant had written in jail; in this letter, defendant indicated that he committed the crime for “excitement and money.” At the sentencing hearing, no objection to or motion to suppress the letter was made. Defendant concedes that habeas corpus cannot be used as a substitute for direct appeal where the parties had knowledge of all the facts and knowingly proceeded without objection (In re Gomez, 31 Cal.App.3d 728, 107 Cal.Rptr. 609; In re Razutis, 35 Cal.2d 532, 219 P.2d 15).

The record before us shows no objection to the letter on any ground and no motion to suppress. Thus, defendant waived all of his objections and none of the constitutional issues he raises are properly before us. (People v. Medina, 78 Cal.App.3d 1000, 144 Cal.Rptr. 581).

Defendant, however, maintains that he falls within the exception we discussed and rejected in In re Rinegold, 13 Cal.App.3d 723, 725, 92 Cal.Rptr. 18, i. e., habeas corpus is the proper remedy for a collateral attack on constitutional grounds when there was no opportunity to raise the constitutional issue on appeal as it had not yet been revealed. (In re Spencer, 63 Cal.2d 400, 406, 46 Cal.Rptr. 753, 406 P.2d 33.) Defendant first argues that his privacy arguments could not be raised on direct appeal as they are predicated on Robinson v. Superior Court, formerly 105 Cal.App.3d 249, 164 Cal.Rptr. 389, hearing granted June 25, 1980, which held that a husband and wife both in custody had a reasonable expectation of privacy as to interspousal communications. Defendant recognizes that Robinson is currently pending in our Supreme Court, along with two other former Court of Appeal cases concerning reasonable expectations of privacy in conversations carried on in custody with visitors who are not in a special relationship to the defendant.²

This court (Division Four) recently held that a prisoner has no expectation of privacy as to letters posted by him unless the communication is a confidential one addressed to an attorney, court or public official (People v. Garvey, 99 Cal.App.3d 320, 323, 160 Cal.Rptr. 73). Defendant's letter to his friend was not within the ambit of these protected confidential communications or the marital one involved in Robinson, supra. Garvey also held that monitoring mail for purposes of jail security did not constitute unnecessarily broad and unconstitutional censorship and was consistent with Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224.

Further, as the People correctly point out, People v. Belleci, 24 Cal.3d 879, 887, 157 Cal.Rptr. 503, 598 P.2d 473, held that only illegally obtained evidence which was the subject of a motion to suppress must be excluded from consideration at a sentencing hearing, pursuant to Penal Code section 1538.5, subd. (d). Even assuming, without conceding, that defendant's privacy and censorship contentions have merit, he also has not met his burden of showing that, in the light of the entire record, the inclusion of the letter was prejudicial under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

However, defendant's contention that the use of the letter violated his right to counsel (United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115; state Const. Art. I, § 13) is properly before us, as Henry was not decided until June 16, 1980. Henry held that the defendant's Sixth Amendment right to counsel was violated where the government had intentionally created a situation likely to induce incriminating statements without the assistance of counsel, namely, by providing as a cellmate an undisclosed but paid government informer.³ Henry was based on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. The court focused on the fact that Nichols was a paid undisclosed agent and the subtle pressures imposed by custody on the accused to reveal information that he would not intentionally reveal to persons he knew were government agencies. Defendant's contention that the instant censorship of his mail is analogous to Henry is imaginative but far fetched. Defendant here wrote his letter to a personal friend. The interception of his letter for the permissible reasons discussed above did not constitute an impermissible interference with his federal or state right to the assistance of counsel within the ambit of Henry and Massiah.

The petition for writ of habeas corpus is denied.

FOOTNOTES

1.  In the direct appeal, we have disposed of defendant's due process contention.

2.  DeLancie v. Superior Court, formerly 97 Cal.App.3d 519, as modified 98 Cal.App.3d 533f, 159 Cal.Rptr. 20 (as modified), hearing granted November 29, 1979; People v. Maxie, formerly 105 Cal.App.3d 904, 169 Cal.Rptr. 4, hearing granted July 16, 1980. In view of these pending cases, we cannot agree that as an intermediate appellate court, we write on a tabula rasa on this issue.

3.  In Henry, supra, the informer Nichols was on a contingent fee, i. e., he was paid only if he produced useful information. Nichols was specifically instructed not to initiate any conversations with defendant but merely to listen. The information provided by Nichols linked Henry to the robbery in which no eyewitness had been able to identify him.

TAYLOR, Presiding Justice.

ROUSE and MILLER, JJ., concur.