Conviction for Surreptitiously Recording Conversation with Police Chief in His Office Reversed;

Start at People v. DaviesDecreed on Feb. 8, by Justices Herbert Levy, Kathleen Meehan and Charles Poochigian, but slightly modified Wednesday

We are in agreement with appellant about the multiple prejudicial instruction errors that were made, and this requires us to reverse his decision. Although the court failed to clarify that in order for appellant to be found guilty, the prosecution had to show that appellant wanted to record confidential communications. Inadvertently, the court stated that a mistake in fact is not an argument for intent. Together, these errors strongly suggested to the jury that appellant could be convicted even if he lacked criminal intent and/or he reasonably believed the conversation was not confidential….

While inside the chief’s office, appellant spoke to the chief. During this conversation, the lieutenant was also present. It was still possible to enter the chief’s offices through this door. The chief asked the lieutenant to remain in his office because appellant had “issues in the past” with the police department. …

The chief and lieutenant both testified at trial that appellant seemed angry during the brief meeting. The appellant shouted. According to the lieutenant, appellant appeared possibly intoxicated….

California Invasion of Privacy Act (section 630 et al.) was created in 1967 with the goal of protecting privacy. [persons]They consent to the recording. It is a crime to use an electronic amplifying device or recording device “to eavesdrop on or record” confidential communications. Section 632 provides that it is a crime to do so. In order to be considered a criminal, the defendant must intentionally eavesdrop on or record the confidential communication without consenting of all the parties. {This may occur “among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio.”}

The definition of “confidential communications” is a key aspect in this case. The definition of a “confidential communication” is found in section 632. It refers to any communication which has been carried out in such circumstances that it can reasonably be assumed that one party wishes that it be kept to themselves. This excludes communication in public places or during legislative, judicial or executive proceedings open to the public. ….

[T]The California Supreme Court [has]The following is a test to determine confidentiality in a communication.[U]Under section 632, “confidentiality” appears to only require that one of the participants has a reasonable expectation that they are not listening in or recording the conversation. According to the high court, “a conversation under section 632 is confidential if one of the parties has an objectively reasonable expectation not that it is being recorded or overheard.” …

[But the jury instruction given in this prosecution]It was flawed in two aspects. First, it did not adequately address appellant’s intent to make him criminally responsible under section 632 subdivision (a). Second, it incorrectly stated that a mistake of fact was not a legal defense for intent….

[A]Jurors for the appellant were informed that appellant is guilty of using a recording device in order to record communications. The jury was instructed by appellant that he was guilty when he “intentionally used a recording device to record a communication”. The instruction given in this matter erroneously suggested that appellant could be convicted even if he lacked an intent to record a confidential communication…. The instruction stated that appellant could still be convicted even though he believed the conversation to not be confidential.

The jury also suffered instruction error when the court told them that the mistake of facts was “not legal defense for intention.” This was an incorrect statement of law…. A defendant’s actual and reasonable mistake of fact could show that he or she did not intentionally or knowingly record (or eavesdrop upon) a confidential communication….

The trial records contain evidence that could lead rational jurors to conclude that appellant didn’t intend to record confidential communications or that he wasn’t reasonable in believing he was doing so. It’s possible, however that rational jurors will find that appellant was unable to record the conversation because he had a mistaken belief.

Appellant made a request to talk to the chief of police on the particular afternoon. The chief was willing to talk with appellant and he led him through a locked gate. The chief did not search appellant. The recording was made in the chief’s office. It was not possible to access the chief’s offices through the door, but the lieutenant could be seen. Appellant talked about an alleged criminal case that was between appellant and D.R. Appellant was frustrated that D.R. wasn’t arrested by the police.

Appellant didn’t testify in court. When appellant was interviewed after the incident by the detective, appellant answered that he didn’t realize the chief’s office was in a controlled area. Appellant was then asked if he felt it was better to tell the chief that he was recording. Appellant said that “you can record me anytime you like.” The detective explained to appellant, that appellant must have been aware that the location near the chief of police was closed off because the door had a “key encoded locking key.” Because the area was “wide open,” appellant said no. It was not something he considered. …