PEOPLE v. MOJICA (1982)

After a trial by the court, appellant was convicted of murder in the second degree and was sentenced to state prison.   He has appealed;  we affirm.

After his arrest, appellant, together with other persons also under arrest for their part in the same shooting, was placed in a jail cell.   Unknown to appellant, the conversation in the cell was “monitored” by a concealed microphone and tape recorded.   Over appellant's objection, that tape was included in the transcript of the preliminary examination, on which transcript the case was submitted to the trial judge.   The use of that tape is the sole ground here raised for a reversal.

I

 We agree with appellant that the use of that tape, so procured, violated the rule laid down by the Supreme Court in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142.   The sole purpose of the monitoring was to enable the police to secure damaging admissions from the detainees, and the record fully supports the claim that appellant was unaware of the monitoring.

II

 The trial was in February 1982;  De Lancie was not decided until July of 1982.   The People argue that the decision was not retroactive.   We agree.   The threshold inquiry in determining whether a decision is retroactive is whether or not it establishes a new rule.  “If it does, we proceed to test whether the new rule is retroactive.   If it does not, no such testing is necessary as, by definition, without a new rule, there is no change in the law and the question of retroactivity is immaterial ․ to constitute a new rule, the decision must either (1) overrule clear past precedent or (2) disrupt a practice long accepted and widely relied upon.”  (United States v. Bowen (9th Cir.1974) 500 F.2d 960, 975.)  (Fn. omitted.)

Contrary to appellant's contention that De Lancie does not establish a new standard, but merely enunciates an application of a previously existing principle, we find that De Lancie clearly meets the test of a “new rule,” under both criteria listed in Bowen.   First, it overrules clear past precedent.  “․ California cases have uniformly held that an inmate of a jail ordinarily has no right of privacy.”  (North v. Superior Court (1972) 8 Cal.3d 301, 308, 104 Cal.Rptr. 833, 502 P.2d 1305.)   As the court recently observed in People v. Owens (1980) 112 Cal.App.3d 441, 448, 169 Cal.Rptr. 359:  “It is firmly established under both state and federal law that in general no reasonable expectation of privacy, in the Fourth Amendment sense, exists in custodial conversation.  [Citations.]”  Secondly, the rule of De Lancie, that jail officials may only monitor conversations between pretrial detainees for purposes of institutional security or public protection, would disrupt a practice long accepted and widely relied upon.   Decisions abound concerning the practice of monitoring conversations between detainees and their visitors and among detainees themselves.   With the exception of those limited situations where a special privilege exists (see North v. Superior Court, supra, 8 Cal.3d at 310–311, 104 Cal.Rptr. 833, 502 P.2d 1305), courts have consistently upheld the practice as constitutional, proper, and not violative of prisoner's rights.  (See, e.g., Lanza v. New York (1962) 370 U.S. 139, 143, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384;  People v. Hill (1974) 12 Cal.3d 731, 764, 117 Cal.Rptr. 393, 528 P.2d 1;  People v. Owens, supra, 112 Cal.App.3d at p. 448, 169 Cal.Rptr. 359;  People v. Penrod (1980) 112 Cal.App.3d 738, 749, 169 Cal.Rptr. 533;  People v. Case (1980) 105 Cal.App.3d 826, 835, 164 Cal.Rptr. 662;  People v. Estrada (1979) 93 Cal.App.3d 76, 99, 155 Cal.Rptr. 731;  People v. Suttle (1979) 90 Cal.App.3d 572, 578, 153 Cal.Rptr. 409;  People v. Finchum (1973) 33 Cal.App.3d 787, 791, 109 Cal.Rptr. 319.)

 Where a new rule of law has been stated, the retroactivity of that decision must be established by applying the following criteria:  “ ‘(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.’   (Citation.)”  (People v. Gainer (1977) 19 Cal.3d 835, 853, 139 Cal.Rptr. 861, 566 P.2d 997.)

Applying the first factor, it is apparent from a reading of De Lancie that the purpose to be served by its rule is that of limiting the right of jailhouse officials to monitor conversations among detainees or between detainees and their visitors.   Such conversations may now only be monitored on a showing that the activity was done for the purpose of protecting the security of the institution or the public.   Although this prophylactic purpose is a laudible one, designed to give force to the civil rights granted incarcerated defendants under Penal Code section 2600, it does not outweigh the fact that law enforcement authorities have long relied on previously enunciated standards, nor the negative effect on the administration of justice which a retroactive application of De Lancie would produce.   As the foregoing list of representative cases demonstrates, law enforcement authorities have regularly monitored jailhouse conversations, and the contents of those conversations have been consistently deemed admissible at trial.   Further, that conduct has been reasonable, based on the unequivocal nature of the courts' rulings.   Prior to De Lancie, it was settled law that a person detained in jail could not reasonably expect to enjoy the privacy afforded to a person in free society;  his lack of privacy was deemed a necessary adjunct to his imprisonment.

To the extent that De Lancie represents a departure from that settled law, its application should be prospective only, in fairness to those who have relied on the law as it previously existed.   There is no reason to believe that the Supreme Court intended that De Lancie be applied retroactively.

The trial court properly ruled that the evidence of the monitored conversation was admissible.

The judgment is affirmed.

WOODS, Presiding Justice.

KINGSLEY, and AMERIAN, JJ., concur.