PEOPLE v. BRENT (1984)

The primary issue raised in this appeal is the propriety of allowing the prosecution to introduce in rebuttal the contents of a secretly tape recorded conversation, allegedly made in violation of Penal Code section 632.   The trial court allowed the evidence to be introduced in rebuttal because it felt certain defense witnesses had lied about the contents of the conversation during their testimony.   In order to resolve this issue we must examine what qualifies as a confidential communication within the meaning of Penal Code section 632(c).

SUMMARY

In an attempt to gather evidence as to who was responsible for the theft of their merchandise, the victims in this matter, Eli Dadon and Alisha Sharvit, had several meetings with persons they suspected as having been involved in the theft, including appellant's codefendants, Amnon Levy and Baruch Bentov.   Dadon secretly tape recorded one of these meetings.   The tape recording was not offered in evidence during the People's case-in-chief.   Dadon did testify as to what took place during that meeting, based upon his independent recollection of the event.   During the defense portion of the case both Levy and Bentov either denied that parts of the conversation had taken place, or explained them away as negotiations concerning other financial matters not relating to a theft of the victim's merchandise.   The trial court then allowed evidence of the contents of the tape recording to be admitted into evidence in rebuttal.   This evidence tended to show that appellant's codefendants had lied during their testimony.

STATEMENT OF THE CASE

In an information filed by the District Attorney of Los Angeles County, appellant, Henry Chaim Brent, was charged in count III with receiving stolen property, in violation of Penal Code section 496.   Pursuant to Penal Code section 12022.6(b) it was further alleged that the appellant took funds and property in excess of $100,000.   Two of the other codefendants ¹ in this matter, Amnon Levy and Baruch Bentov were also charged in this count.

Appellant, Levy and Bentov were charged in count IV of the information with the crime of conspiracy to commit grand theft, burglary and receiving stolen property in violation of Penal Code section 182.   This count also contained an allegation pursuant to Penal Code section 12022.6(b).   Levy and Bentov were charged in counts I and II with violations of Penal Code sections 459, burglary, and 487, grand theft.   There was also an allegation pursuant to Penal Code section 12022.6(b) as to each count.   Appellant was not charged in either of these counts.

Appellant entered not guilty pleas to each count and denied the special allegations.

Prior to trial appellant litigated a motion to dismiss pursuant to Penal Code section 995, a motion to suppress pursuant to Penal Code section 1538.5, a motion to exclude evidence (“Hitch” motion), and a motion to dismiss for a lack of a speedy trial.   Each of the motions was ultimately denied.

After a five week trial, appellant was convicted of a violation of Penal Code section 496, receiving stolen property.   The jury also found that the value of the goods taken was in excess of $25,000, within the meaning of Penal Code section 12022.6(a).   The jury was unable to arrive at a verdict on the remaining counts.   Those counts were eventually dismissed as to all defendants.

Appellant's motion for a new trial was denied.   Proceedings were suspended and appellant was placed on three years probation, on various terms and conditions, including one that he spend 365 days in the county jail.

Appellant appeals from the judgment of conviction (order granting probation).

STATEMENT OF FACTS 2

ISSUES

Appellant raises the following issues, some of which are multi-faceted and will be discussed more fully below.

(1) the trial court erred in allowing the prosecution to introduce Dadon's tape recording in rebuttal, in violation of Penal Code section 632;

(2) the trial court erred by admitting statements of the codefendants against the appellant which did not qualify under Evidence Code section 1223;

(3) the trial court did not impose the proper sanctions against the prosecution for the destruction of material evidence;  and

(4) the trial court erred by not granting appellant's Penal Code section 1538.5 motion.

DISCUSSION

I

Appellant argues that the trial court improperly allowed the prosecution to impeach the appellant and his codefendants at trial, by using evidence obtained in violation of Penal Code section 632.³

 Although the trial court is required to determine whether or not a challenged recording is a confidential communication within the meaning of section 632 as a preliminary fact pursuant to Evidence Code section 400 et seq. (see e.g., People v. Pedersen (1978) 86 Cal.App.3d 987, 994, 150 Cal.Rptr. 577), the trial court did not specifically do so in this case.   We may assume however, from all of the trial court's remarks, that it considered the conversation that was recorded to be a confidential communication.   This determination constituted a legal conclusion which is subject to our independent review on appeal.  (People v. Watson (1981) 30 Cal.3d 290, 300, 179 Cal.Rptr. 43, 637 P.2d 279.)

At trial, the People objected to characterizing the conversation as confidential.   The trial court allowed the evidence to be introduced in rebuttal as a policy decision, in order to prevent some of the defendants at trial from being allowed to perjure themselves as to what took place at the meeting which was secretly recorded.  (See e.g., People v. Taylor (1972) 8 Cal.3d 174, 104 Cal.Rptr. 350, 501 P.2d 918.)

We need not discuss this issue of first impression in California in order to resolve this matter.   We find the question may be answered by reference to the definitions contained within Penal Code section 632 itself.

 From all of the testimony presented at the trial by codefendants Levy and Bentov, as well as the testimony of Sharvit and Dadon, it is clear to us that there was no evidence presented from which the trial court could have concluded that the meeting of July 13, 1981,⁴ was ever meant to be kept confidential among the parties who were present at that time, as required by subdivision (c) of section 632.

Present at the meeting were Dadon, Levy, Bentov, Levy's wife and Dadon's girlfriend.  (Dadon usually referred to his girlfriend as his wife.)

“The constitutional right of privacy and the state and federal regulations prohibiting the recording of conversations are all designed to protect confidential communications.   Therefore, the test as to whether these salutary laws have been violated depends upon whether the person whose conversation was recorded had a reasonable expectation of privacy at the time of the recording.”  (People v. Newton, (1974) 42 Cal.App.3d 292, 296, 116 Cal.Rptr. 690.)  (Emphasis added.)

 In the instant case none of the parties present during the meeting had a reasonable, justifiable expectation that the contents of their conversation would be kept confidential.   There was never any agreement or understanding among the parties that the conversation would be kept to themselves.   In fact, it was understood that at the very least, if any agreement were reached at the meeting, Levy's brother would be contacted in Israel concerning the transfer of funds, and even if no agreement were reached Dadon would discuss the meeting with Sharvit.   The only persons who were not to be informed about the meeting were the police.   An understanding by the parties present that persons not present at a conversation will be told about what was discussed removes any such conversation from the protections of Penal Code section 632, subsection (c).   The belief of one party that only the police will not be told of the conversation is insufficient, by itself, to make the conversation confidential, within the meaning of Penal Code section 632(c).

 Finally, we note that even if there had been a violation of Penal Code section 632, and had the trial court erred in allowing the evidence to be admitted in rebuttal, appellant could not claim any prejudice.   As to appellant, the jurors were instructed they could only consider the statements on the tape if they first found a conspiracy existed between Levy, Bentov and appellant.   The jury was unable to make such a finding, and those charges were ultimately dismissed.   Appellant received a benefit he was not entitled to when the trial court originally excluded evidence of the tape recording.   He cannot complain of error because the recording was played to the jury in rebuttal.

II–IV 5

CONCLUSION

For all of the reasons stated above, the judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   There were several other codefendants at the time of the preliminary hearing in this matter.   Their cases were dismissed before appellant's trial.

2.   See Footnote * ante.

3.   “§ 632.   Eavesdropping on confidential communication;  Punishment.“(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electonic amplifying or recording device, eavesdrops upon or records such confidential communication, whether such 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 punishable by 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 such fine and imprisonment in the county jail or in the state prison.   If such person has previously been convicted of a violation of this section or Section 631 or 636, he is punishable by fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both such fine and imprisonment in the county jail or in the state prison.“(b) The term ‘person’ includes an individual, business association, partnership, corporation, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording such communication.“(c) The term ‘confidential communication’ includes any communication carried on in such circumstances as may reasonably indicate that any party to such communication desires it to be confined to such parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.“(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.“(e) 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, or (2) to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs of such a public utility, or (3) to any telephonic communication system used for communication exclusively within a state, county, city and county, or city correctional facility.“(f) This section does not apply to the use of hearing aids and similar devices, by persons afflicted with impaired hearing, for the purpose of overcoming the impairment to permit the hearing of sounds ordinarily audible to the human ear.”

4.   Dadon testified the meeting he taped took place on July 13, 1981.   Respondent asserts Levy and Bentov denied any meeting occurred.   In fact, Levy and Bentov both recall the meeting, but allege it took place on July 15, 1981.

5.   See footnote * ante.

FIDLER, Associate Justice.**** FN**** Assigned by the Chairperson of the Judicial Council.

KLEIN, P.J., and ARABIAN, J., concur.