People v. Thibodeaux

THE PEOPLE, Plaintiff and Respondent, v. KENNETH JEROME THIBODEAUX, Defendant and Appellant.

B246364

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE

Filed: April 20, 2014

Filed: April 21, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. KA0098244)

ORDER MODIFYING OPINION

AND DENYING PETITION FOR

REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on March 20, 2014, be modified as follows:

1. On page 15, the first paragraph, third full sentence, the word "initially" is inserted between the words "court" and "bypassed."

2. On page 15, the first paragraph, at the end of the fourth full sentence, add as footnote ⁷ the following footnote, which will require renumbering of all subsequent footnotes:

⁷ The parties stipulated that Calandra acted "under the direction of" the LASD when she recorded her cell phone conversation with appellant. After ruling on the basis of the Fourth Amendment, the trial court also found the recording admissible because Calandra acted as an agent of law enforcement. We agree with, but need not address appellant's argument regarding the propriety of, that ruling. The recording was admissible on the alternative ground articulated by the trial court. We affirm the trial court's rulings, not its reasoning and will affirm on any theory properly established by therecord. (People v. Mason (1991) 52 Cal.3d 909, 944; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19.)

3. On page 15, the last two sentences of the first paragraph are deleted.

4. On page 15, the second full paragraph beginning with "[I]n 1982," and ending with "at p. 227.)" is deleted and the following paragraph is inserted in its place:

"[I]n 1982, the California voters passed Proposition 8. Proposition 8 enacted article I, section 28 of the California Constitution, which provides in relevant part: 'Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial . . . motions and hearings . . . .' (Cal. Const., art. I, § 28, subd. (f), par. (2).)" (People v. Lazlo (2012) 206 Cal.App.4th 1063, 1069.) The "Truth-in-Evidence" provision in subdivision (f), paragraph (2), of article I, section 28 of the California Constitution "was intended to permit exclusion of relevant, but unlawfully obtained evidence, only if exclusion is required by the United States Constitution . . . ." (In re Lance W. (1985) 37 Cal.3d 873, 890 (Lance W.).) Section 28, subdivision (f), paragraph (2) applies both to judicially created rules of exclusion (In re Demetrius A. (1989) 208 Cal.App.3d 1245, 1247), and to statutory evidentiary restrictions. (See Lance W., at pp. 893-896.)

5. The six paragraphs which commence on page 15 with "In Algire, supra," and which end at the bottom of page 17 with the sentence ending with "(Lance W., supra, 37 Cal.3d at p. 896.)," including footnotes appended thereto, are deleted and the following paragraph is inserted in their place:

In 1985, the Legislature enacted the Cordless and Cellular Radio Telephone Privacy Act of 1985 (the 1985 Act), which, with certain exceptions, prohibits the interception of cell phone communications. (Stats. 1985, ch. 909, § 2, p. 2900.) The 1985 Act amended section 632 and related statutes, adding section 632.5, without substantially changing the language of section 632, subdivision (d). At least two-thirds of the members of each house of the Legislature voted in favor of the 1985 Act. (See tallies, Sen. Bill No. 1431, Final History (1985-1986 Reg. Sess.) p. 965.) Based on theprinciples articulated in Lance W., supra, 37 Cal.3d 873, we ascertain no legislative intent, in amending the Invasion of Privacy Act, to resuscitate the abrogated exclusionary rule of section 632, subdivision (d). The 1985 Act reflects the Legislature's intent to focus on the need to protect private cell phone communications. (Stats.1985, ch. 909, § 2, pp. 2900-2901 ["[T]his act is intended to provide recourse to those persons whose private cellular radio telephone communications have been maliciously invaded by persons not intended to receive such communications"].) No provision in the 1985 Act itself, nor any legislative history identified by appellant, reflects a Legislative intent to nullify the exclusionary rule of 632, subdivision (d). Accordingly, the trial court was correct: an audio recording of a cell phone call between the victim and defendant is excludable only under the federal rule applicable to evidence seized in violation of the Fourth Amendment. (Lance W., supra, 37 Cal.3d at p. 896.)

6. At the end of the newly inserted paragraph identified in Item No. 5 above, add as footnote ⁸ the following footnote:

⁸ Of course, if the victim did not record the conversation while acting as a government agent, defendant's Fourth Amendment interests are not implicated. (See Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 333; Zhou v. Pittsburg State University (D.Kan. 2003) 252 F.Supp.2d 1194, 1203-1204 [under 18 U.S.C. § 2511(2)(d), recordings of conversation between private individuals made with consent of one party to conversation is admissible].)

There is no change in the judgment.

The petition for rehearing is denied.

NOT TO BE PUBLISHED.

ROTHSCHILD, Acting P. J.

JOHNSON, J.

MILLER, J.^*

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE PEOPLE, Plaintiff and Respondent,

v.

KENNETH JEROME THIBODEAUX, Defendant and Appellant.

B246364

(Los Angeles County

Super. Ct. No. KA0098244)

APPEAL from a judgment of the Superior Court of Los Angeles County, Wade Olson, Commissioner. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E. Maxwell, Supervising Deputy Attorney General, and Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.

Appellant Kenneth Thibodeaux challenges his conviction for continuous sexual abuse. He contends that the trial court's admission of a surreptitiously recorded conversation between himself and the victim's mother contravened Penal Code section 632, subdivision (d), and was a violation of his Fourth Amendment right of privacy, and his Fifth and Sixth Amendment right to counsel. We affirm.

PROCEDURAL BACKGROUND

Appellant was charged by information with aggravated sexual assault of a child (count 1; Pen. Code, § 269, subd. (a)(1)),¹ forcible child molestation (count 2; § 288, subd. (b)(1)), continuous sexual abuse (count 3; § 288.5, subd. (a)), and rape (count 4; § 261, subd. (a)(2)). Appellant pleaded not guilty.

Before trial, appellant moved to suppress a recording of a cell phone call conversation between himself and his estranged wife, the victim's mother, C. Thibodeaux (C.), which C. made under the direction of Detective Alfonso Lopez, of the Los Angeles County Sheriff's Department (LASD). Appellant's counsel argued that the conversation was recorded in violation of sections 629.72, 631, 632 and 182, as it was "a confidential communication recorded without the knowledge or the consent of defendant." Counsel also argued that the recording violated appellant's Fourth Amendment right to privacy. At the hearing on the motion, appellant's counsel also argued that the recording violated appellant's right to counsel and his right against self-incrimination.

The parties stipulated that, following appellant's arrest in January 2012, he exercised his rights under Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (Miranda), and was released, and that the phone call was recorded at the detective's request after appellant had been released. The prosecution asserted that (1) disclosure of the recording was permissible, and use of the recording was permitted for law enforcement; (2) the term "victim," encompassed the victim's mother; and (3) that the Invasion of Privacy Act (§ 630 et seq.) was not preempted by federal lawbecause California law is more restrictive than federal law. The prosecutor argued that, although the "law enforcement exception" and "victim of the crime exception" were independent of one another, both applied and C. had acted as the LASD's agent. Appellant's counsel disagreed that "victim" included the victim's mother. The parties stipulated that C. recorded the call from appellant "under the direction" of the detective, and at a time when no case was pending against appellant, but after his initial arrest and exercise of his Miranda rights.

During the portion of the hearing directed to the Invasion of Privacy Act, the trial court itself raised, and the parties argued, whether the issue was governed by Fourth Amendment search and seizure law, section 632 having been abrogated by the passage in 1982 of Proposition 8.² The court noted that Proposition 8 "federalized" California's search and seizure law such that exclusion of unlawfully obtained evidence was required only if required by the United States Constitution. At the conclusion of the hearing the trial court found no Fourth, Fifth or Sixth Amendment violations, and denied the motion to suppress.

A jury deadlocked as to counts one, two and four, and the court...