Filed 2/8/22 P. v. Ambroise CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE,
Plaintiff and Respondent,
v.
RICHARD LEWIS AMBROISE,
Defendant and Appellant.
| H046633 (Santa Clara County Super. Ct. No. C1889050) |
After the trial court denied defendant’s motion to suppress evidence obtained from a probation search of his home, data extracted from cell phones found at the residence, and digital recordings of phone calls defendant placed as a county jail inmate, defendant pleaded no contest to pimping. Defendant challenges the trial court’s suppression ruling as it relates to the probation search and the jail phone calls. He argues that the probation search was unduly prolonged and harassing, and the disclosure and retention of the jail calls violated California’s Electronic Communications Privacy Act.
We find the probation search of defendant’s home to be reasonable and that the jail lawfully obtained and retained the electronic recordings of defendant’s phone calls. However, the district attorney’s prolonged retention of any jail call recordings that had not warned of disclosure to that office violated the Electronic Communications Privacy Act’s 90-day retention limit. The trial court preempted the prosecution from identifying which of the recordings contained the appropriate advisement. We will therefore reverse the judgment and remand for further proceedings.
At defendant’s request, we have independently reviewed the in camera Pitchess proceeding that took place before defendant entered his plea. We see no abuse of discretion in the trial court’s ruling that none of the documents produced in response to the Pitchess motion was discoverable to defendant.
- BACKGROUND
Defendant was placed on formal probation for robbing a cell phone store. He reported to the probation office in August 2017 after serving time in county jail. In November 2017, probation officers visited defendant’s residence, where defendant and a female were present, and they found evidence of pimping and prostitution activity. Sheriff’s personnel arrived to interview defendant and the female, photograph the residence, and collect evidence. Following a preliminary hearing in June 2018, defendant was charged by information with pimping (Pen. Code, § 266h, subd. (a); count 1), pandering by procuring a person for the purpose of prostitution (Pen. Code, § 266i, subd. (a)(1); count 2), and pandering by procuring for a person a place in a house of prostitution (Pen. Code, § 266i, subd. (a)(3); count 3). The information alleged that defendant had a prior strike conviction. (Pen. Code, §§ 667, subds. (b)–(i), 1170.12.)
The prosecution disclosed to the defense that phone calls initiated by defendant as a Santa Clara County Jail inmate between June 2017 and July 2018 were electronically preserved by the jail. Most of the recordings were disclosed after the preliminary hearing, and no recordings were used at the preliminary hearing to establish probable cause.
Defendant moved to suppress the fruits of the probation search, including content extracted from the cell phones seized from his residence, and the jail calls. The trial court denied the motion in its entirety. The court rejected defendant’s argument that the search of his residence was harassing and undertaken for an improper purpose. The court found that the jail recordings and the various warrants issued for defendant’s cell phone and email data complied with the Electronic Communications Privacy Act.
Defendant pleaded no contest to count 1, admitted the prior strike allegation, and admitted violating probation in the underlying robbery case. In exchange, the prosecution agreed to a prison commitment of between three and six years, to dismiss the remaining charges, and to not charge defendant with dissuading a victim. Defendant’s Romero motion was denied, he was sentenced to a six-year prison term, and probation in the robbery case was terminated.
- DISCUSSION
When reviewing a ruling on a motion to suppress evidence, we defer to the trial court’s factual findings, express or implied, that are supported by substantial evidence. (People v. Ayala (2000) 23 Cal.4th 225, 255.) We exercise our independent judgment in determining whether the search or seizure was reasonable under the Fourth Amendment. (Ibid.)
- The Probation Search Was Reasonable
Defendant argues the warrantless search of his residence, where “he was forced to sit for over four hours while he was handcuffed and unable to use a bathroom, get a drink of water, or fully clothe himself,” was unduly prolonged and harassing, and thus resulted in a constitutionally unreasonable probation search. A search pursuant to a valid parole or probation condition is a recognized exception to the Fourth Amendment’s warrant requirement. (People v. Vargas (2020) 9 Cal.5th 793, 814; People v. Robles (2000) 23 Cal.4th 789, 794–795.) But “[a] waiver of Fourth Amendment rights as a condition of probation does not permit searches undertaken for harassment or searches for arbitrary or capricious reasons.” (People v. Bravo (1987) 43 Cal.3d 600, 610.) A probation search “ ‘could become constitutionally “unreasonable” if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer.’ ” (People v. Reyes (1998) 19 Cal.4th 743, 749, 753–754.)
At the hearing on the suppression motion, defendant’s probation officer testified that he and three colleagues (one male and two female) visited defendant’s residence on November 16, 2017. Defendant was considered a high-risk probationer because “there was a gun involved” in the underlying robbery. Defendant had reported to the probation office several times before November 16, and the probation officer had no reason to believe defendant was engaged in criminal activity. Defendant was on track to move to less intensive probation, but that transition required a home visit which had not yet occurred.
At 2:25 p.m., the probation officer advised county communications that he and his colleagues were approaching defendant’s apartment, and they arrived at defendant’s door 10 or 15 minutes later. As they approached the residence, a man walking away from the door told the probation officer he had just finished visiting an escort. A female answered the door and was directed outside to the probation officer’s female partners. The probation officer and his male partner called for defendant to “[c]ome out.” Defendant emerged from the back hallway wearing a T-shirt and boxer shorts. The officers placed defendant in handcuffs, seated him at the dining table, and proceeded to search the two-bedroom apartment.
The officers spent the bulk of their time in the master bedroom, where they found clothing, letters, and several cell phones including an iPhone with defendant’s photo on the home screen. “There was a lot to go over. There were lots of letters. There was a lot of stuff in his bedroom. His closet was pretty packed with stuff.” There were “[h]undreds” of letters addressed to defendant “with photographs of women … some wearing clothes [and s]ome not wearing clothes,” and over 100 “[s]uggestive photographs referring to [defendant] as king, and things along those lines.” The second bedroom was “clean” and “well kept,” with a towel and lubricant on a bed, an unopened condom on the nightstand, and some women’s clothing.
About an hour after arriving, the probation officer called a sheriff’s sergeant with expertise in prostitution related crimes, and waited another hour (“[m]aybe a little longer”) for the sergeant to arrive. The sergeant contacted his partner whose arrival followed, at which point defendant was moved outside so sheriff’s personnel could conduct their investigation which included interviewing defendant’s girlfriend. Defendant was provided a blanket because he said he was cold. The sheriff’s investigation took a couple hours to complete, during which time defendant remained handcuffed outside. At one point defendant complained that the handcuffs were tight. He was “a big guy,” so the probation officer removed the handcuffs, permitted defendant to shake out his wrists for “15 to 30 seconds,” and applied different handcuffs with more shoulder access. The probation officer said “t was never brought up” when asked whether he allowed defendant to use the bathroom. And he did not remember defendant drinking water. The probation officer transported defendant to the county jail, where records showed he was booked at 6:40 p.m.
The sheriff’s sergeant testified that he received a call from the probation officer at roughly 3:45 p.m. He arrived at defendant’s residence “[a]nywhere between 20 and 45 minutes” after the call, and his partner arrived within an hour afterward. The sergeant scanned the apartment, spent about 30 minutes interviewing defendant, and 10 minutes interviewing the female. His partner interviewed the female a second time while the sergeant “was in and out of the room dealing with administrative things.” The sergeant seized cell phones and told defendant and the female that search warrants would be prepared for the phones. He did not seize a new phone belonging to the female because she was a victim and he did not want to leave her without a means of communication. He spent 30 to 45 minutes collecting evidence from the apartment, and about 15 minutes photographing the apartment. He left the residence a few minutes after the probation officer left with defendant. He was not familiar with defendant or the female before that day.
The assisting sheriff’s detective testified that he arrived at defendant’s residence at approximately 3:30 p.m., 15 or 20 minutes after receiving a call from the sergeant. He briefly participated in the search, which had “mostly been done”; joined an interview of the female led by the sergeant; and separately interviewed the female. He saw no negative interactions between defendant and his probation officer; defendant did not appear distressed; and he did not hear defendant ask for water or to use the bathroom.
An assisting probation officer testified that she was in the field with her colleagues on November 16, and defendant’s home was one of the residences they checked sometime after lunch. Defendant’s probation officer briefed her and her colleagues as they approached the residence. She pulled up defendant’s Facebook page, saw a photograph of a pool table, money, and marijuana, and showed it to defendant’s probation officer. She was present during the entire search, and she observed nothing unusual or unique about the search, which “[s]ometimes, depending on what happens, [] can take a long time.”
The female at the residence testified that she was defendant’s girlfriend and had been dating defendant for four years. Four probation officers arrived at the residence “around 11:00 or 11:30 [a.m.]”; defendant was placed in handcuffs at the front door and seated at the table; she was seated on the couch; the female officers remained with them; and the male officers went to the bedrooms. The sheriff’s department arrived “maybe 2:00, 2:00-ish,” with the sergeant arriving first and the detective within 30 minutes after. The probation officers were in the apartment when she noted the time on her cell phone at 11:27, 1:42, and “around 5:00 or 6:00.” She testified that the probation officers had been in the apartment for “[l]ike an hour” when she looked at her phone at 11:27; they arrived “like in between 10:30 and 11:00.” They searched defendant’s bedroom for “longer than” four hours before the sheriffs arrived; and defendant was interviewed for “two to three hours.” She clarified the four-hour search included the time the sheriff’s personnel were there, and the two to three hours defendant was interviewed included the time “going back and forth” between her and defendant, who were in separate rooms. At different times defendant asked to use the bathroom, for “socks or shoes, or maybe even some pants,” for water, and for his handcuffs to be loosened. Defendant was not allowed to use the bathroom or given water; she did not see anyone remove his handcuffs; and he was not given additional clothing or shoes until he was taken to jail at “[l]ike 6:00, 6:30.” Defendant was out of her view when she was interviewed in the second bedroom.
The female testified that neither she nor defendant had posted her photograph on Backpage to solicit sex; her only form of employment was babysitting her brother; she never sent or received emails from defendant; and she was not familiar with an email address containing defendant’s surname which was used to post her online advertisements. She denied saying when interviewed that she had worked as a prostitute or that she had used some of the proceeds to pay for defendant’s apartment. She denied that defendant told her not to go to court in order for the case to go away, or that defendant encouraged her to avoid service of a prosecution subpoena. She was testifying at the suppression hearing under a defense subpoena, and she acknowledged being served with a trial subpoena at a location where she was supposed to meet a sex buyer from an advertisement that she had posted on Backpage.
Defendant argued that the probation officer had an improper motive for the search based on a theory that the officers had illegally obtained information about the apartment, defendant, or the female. Defendant asserted the probation officer changed his preliminary hearing testimony regarding his arrival time after reviewing defendant’s [i]Pitchess motion; the sheriff’s sergeant left the female with a phone that “would have had evidence of some sort of either wiretapping, following, spying … or [c]ommunication with perhaps an undercover officer”; and the officers arrived much earlier in the day and were lying about their arrival time to “cover[] up” for wrongdoing which could not be determined because all the officers had provided false testimony. In denying the motion, the trial court commented that there was no evidence of “someone being rolled up regularly” or officers “showing up at 4:00 in the morning to do a search,” and the officers’ testimony did not raise any red flags.
Defendant does not dispute that he was subject to search terms as a condition of probation, and we see no prolonged or harassing conduct that would render the search unreasonable as a matter of law. The testimony of the prosecution’s witnesses constitutes substantial evidence that the probation officers arrived at defendant’s residence shortly after 2:30 p.m. and spent time in defendant’s bedroom looking through hundreds of photos and letters before contacting the sheriff’s office. The sergeant and assisting detective arrived sometime later, collected evidence, and conducted interviews. The search concluded within four hours of the probation officers’ arrival, before defendant was processed into county jail at 6:40 p.m. The probation officer changed defendant’s handcuffs when he complained, gave him a blanket when he was outside, and allowed him access to clothes before transporting him to the jail.
Defendant relies on his girlfriend’s testimony regarding the officers’ arrival time, and her claim that defendant was deprived of water, use of a bathroom, and proper clothing. That testimony was implicitly rejected by the trial court. The girlfriend, who denied working as a prostitute or using Backdoor to solicit sex, was impeached when she admitted being served with a trial subpoena at a time and place where she had arranged a meeting using Backdoor. We defer to the trial court’s adverse credibility determination.
- Some Recorded Phone Calls Were Retained by The District Attorney in Violation of The Electronic Communications Privacy Act
- Legal and Procedural Background
In the absence of a warrant or similar court order, California’s Electronic Communications Privacy Act (Pen. Code, § 1546, et seq.; undesignated statutory references are to this Act) prohibits a “governmental entity” from compelling “the production of or access to electronic communication information from a service provider”; compelling “electronic device information from any person or entity other than the authorized possessor of the device”; and accessing “electronic device information by means of physical interaction or electronic communication with the electronic device.” (§§ 1546.1, subds. (a)(1)–(3); 1546, subd. (i) [defining “[g]overnment entity” as “a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof”].) The “intended recipient of an electronic communication” may voluntarily disclose the communication to a government entity (§ 1546.1, subd. (a)(3)), and a service provider may voluntarily disclose electronic communications provided the disclosure does not violate state or federal law. (§ 1546.1, subd. (f).) A government entity may access information stored on an electronic device with the consent of the authorized possessor of the device. (§ 1546.1, subd. (c)(4).)
The Act requires a government entity that receives an electronic communication voluntarily disclosed by a service provider to destroy the communication within 90 days unless one or more of the following circumstances apply: (1) “The government entity has or obtains the specific consent of the sender or recipient of the electronic communications about which the information was disclosed”; (2) “The government entity obtains a court order authorizing the retention of the information”; (3) “The government entity reasonably believes the information relates to child pornography”; or (4) “The service provider is, or discloses the information to, a federal, state, or local prison, jail, or juvenile detention facility, and all participants to the electronic communication were informed, prior to the communication, that the service provider may disclose the information to the government entity.” (§ 1546.1, subd. (g)(1)–(4).)
A person may move to suppress electronic information obtained or retained in violation of the Act. (§ 1546.4, subd. (a).) A motion to suppress “shall be made, determined, and be subject to review in accordance with the procedures set forth in [Penal Code section 1538.5,] subdivisions (b) to (q).” (Ibid.) In his motion to suppress the jailhouse calls, defendant argued that federal law prohibited Global Tel Link (the entity contracted to provide inmate phone service) from voluntarily disclosing the calls under section 1546.1, subdivision (f), and even if the jail and district attorney’s office had obtained the recordings lawfully, the recordings did not come within an exception to the Act’s 90-day destruction mandate.
A sheriff’s deputy serving as the custodian of records for electronic content from the Global Tel Link phone system testified that signs are posted throughout the jail informing inmates that jail calls are monitored and recorded. The deputy described that when an inmate places a call from the jail using Global Tel Link, the phone system generates a notice, heard by both the inmate and recipient, after which the recipient must to press “0” to accept the call.[1] The prosecutor read two notices to the deputy, and the deputy testified that both were consistent with the notice played for inmates when using the Global Tel Link phone system. The first notice stated, “ ‘This call is from a corrections facility and is subject to monitoring and recording.’ ” The second notice contained an additional advisement about disclosure: “ ‘This call is from a correctional facility and is subject to monitoring, recording, and disclosure to the district attorney or other law enforcement agencies.’ ” The deputy had served as the records custodian for approximately three months, during which time the more comprehensive notice was used, and he did not know what notice was used before his tenure. The notice may have changed when the jail changed vendors “approximately within [the past] two years,” but the deputy “[did not] know a hundred percent how much of it changed.”
During cross-examination by defendant’s attorney, the trial court engaged counsel in a colloquy regarding the scope and nature of consent under the Fourth Amendment and the Act. In the court’s view, the recipient of a call originating from the jail consented to the monitoring and recording of the call under section 1546.1, subdivision (g)(1) (the consent exception to destruction) by affirmatively “push[ing] that button” in order to proceed with the call after being notified that calls are subject to monitoring and recording. The court rejected defendant’s argument that consenting to be monitored and recorded is distinguishable from consenting to disclosure. The court observed, “by allowing [a call] to be recorded, you are no longer in control of that information at all. … If someone wants to put it on the front page of the newspaper the next day, by saying you agree, you agree. … [¶] [W]hen you’re told it’s being recorded … you’re giving up control of that information.” Reasoning that a disclosure notice (identifying the district attorney or law enforcement generally) did not affect the scope of consent, the trial court declined to hear evidence about the warning actually played on each call to be used at trial.
A written stipulation was admitted in evidence regarding Global Tel Link’s phone service.[2] The stipulation referred to an agreement between Global Tel Link and the jail for an inmate telephone system; described how inmates pay for calls; described how calls are monitored, recorded, stored, and retrieved; and identified defendant as the initiator of all the calls and his girlfriend as the recipient of most of the calls disclosed to the defense. The recordings were marked for identification, but they were not moved into evidence.
- Analysis
We begin by addressing the Attorney General’s arguments that the Act does not apply to jail inmates—who have no expectation of privacy in their monitored phone calls—because the Act presumes the existence of private communications. The Attorney General argues alternatively that if inmate call recordings are covered by the Act, the jail complied with the Act as the possessor of Global Tel Link’s phone system and as an intended recipient of defendant’s calls. (We then turn to defendant’s argument that federal law prohibits Global Tel Link from voluntarily disclosing the calls under section 1546.1, subdivision (f), and finally, to whether the calls are subject to the Act’s 90-day destruction mandate.)
- Global Tel Link’s phone system is not an “electronic device” under the Act
As originally enacted, the Act did not refer to inmate phone calls. The Act was amended in 2016 to add subdivision (g)(4) to section 1546.1, which excepts inmate calls in electronic form from destruction, provided proper notice is given to the inmate and recipient. (Stats. 2016, ch. 541, § 3.5.) The amendment demonstrates the Legislature’s understanding that monitored jail calls are within the Act’s scope, and recordings may be subject to destruction absent compliance with the required notice. The Attorney General’s interpretation would make subdivision (g)(4) superfluous, which is contrary to the “cardinal rule of statutory construction that a construction that renders some words surplusage is to be avoided.” (Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1154.)
The Attorney General argues that the Act’s plain language confirms it does not protect “electronic communications” in the form of calls recorded using a jail call system. The Attorney General contends that Global Tel Link’s “system” comes within the Act’s definition of an “electronic device” because the system “stores, generates, or transmits information in electronic form”; the jail comes within the definition of an “authorized possessor” of such a device because the jail is authorized by contract to possess the Global Tel Link system; and the district attorney’s office lawfully accessed the recorded jail calls with the specific consent of the jail (as the authorized possessor of the device) under section 1546.1, subdivision (c)(4), which authorizes a government entity to “access electronic device information by means of physical interaction or electronic communication with the device” under certain circumstances including “[w]ith the specific consent of the authorized possessor of the device.”
The Attorney General’s argument is premised on Global Tel Link’s phone system being an “electronic device” under the Act. The argument is not supported by the language and structure of the Act. The Act defines an “electronic device” as “a device that stores, generates, or transmits information in electronic form.” (§ 1546, subd. (f).) Although the Act does not define “device,” it contemplates that a device may have a phone number, be lost or stolen, and be seized from an inmate’s possession. (§ 1546.1, subd. (c)(5), (7), (10).) That is consistent with the Merriam-Webster Dictionary’s definition of “device” as “a piece of equipment or a mechanism designed to serve a special purpose or perform a special function ¶ // smartphones and other electronic devices ¶ // a hidden recording device.” (Merriam-Webster.com 2022, <https://www.merriam-webster.com/dictionary/device?src=search-dict-box> [as of February 8, 2022], archived at https://perma.cc/2DK2-PTSD.) The Act also provides for a government entity to access information stored on an electronic device (§ 1546.1, subds. (a)(2), (3); (c)) separately from accessing information possessed by a service provider (id., subds. (a)(1), (f)).
The parties stipulated in the trial court that: the jail “monitors, records, and makes copies of recordings of the inmates’ outgoing telephone calls … through a service provider called Global Tel Link Corporation”; Global Tel Link “stores the recording of each call in a digital computer file, and maintains related call details in an electronic database”; and the jail’s custodian of records accesses the recordings “using a computer to login [sic] to a secure website provided by [Global Tel Link],” and downloads the audio file onto a CD.
The records custodian testified that he was trained on “how to retrieve the calls and document it and burn it on a compact disc, and forward[] it to the requesting agency or DA.” There is no evidence linking the electronic files and databases to a small personal piece of equipment or machinery owned by Global Tel Link and possessed by the jail. Section 1546.1, subdivision (c)(4), which applies to content stored on an “electronic device,” therefore does not apply to Global Tel Link’s disclosure or the district attorney’s receipt of the recordings.
- The recipient of defendant’s calls did not disclose the calls under section 1546.1, subdivision (a)(3)
The Attorney General argues that the calls were voluntarily disclosed under section 1546.1, subdivision (a)(3) (the intended recipient of an electronic communication may voluntarily disclose the communication to a government entity without violating the Act) because the recipient of defendant’s phone calls was notified that the calls would be monitored, recorded, and that the recordings would be disclosed to the district attorney’s office. Even if the recipient of the phone calls knew the calls were being recorded, subdivision (a)(3) does not apply here. The calls were not disclosed to the jail or district attorney’s office by the recipient; they were disclosed by Global Tel Link as the service provider.
- Global Tel Link voluntarily disclosed the calls to the jail under section 1546.1, subdivision (f)
Section 1546.1, subdivision (f) authorizes a service provider to voluntarily disclose electronic communications, provided “the disclosure is not otherwise prohibited by state or federal law.” The parties agree that Global Tel Link is a service provider under the Act. Defendant argues the disclosures were not authorized under section 1546.1, subdivision (f) because they violated the federal Stored Communications Act (18 U.S.C. §§ 2701–2713), which prohibits a service provider from knowingly divulging the contents of a stored communication to any person or entity unless an enumerated exception applies. (Id., § 2702(a)(1).) One of the exceptions applies here: where the service provider has “the lawful consent of the originator or an addressee or intended recipient of such communication.” (Id., § 2702(a), (b)(3).) Defendant consented to Global Tel Link disclosing to the jail the calls he initiated while in custody knowing that the calls were subject to monitoring and recording.
Defendant counters that the lawful consent exception under the Stored Communications Act does not apply because his consent was not “actual,” citing Facebook, Inc. v. Superior Court (Hunter) (2018) 4 Cal.5th 1245 (Facebook) and Negro v. Superior Court (2014) 230 Cal.App.4th 897 (Negro). Neither case supports his contention. Facebook involved a social media service provider’s refusal to comply with subpoenas for both public and private communications from the accounts of a homicide victim and a prosecution witness in a criminal case. (Facebook, at pp. 1248–1249.) The Supreme Court concluded that the federal act “generally and initially prohibits the disclosure of all (even public) communications—but that section 2702(b)(3)’s subsequent lawful consent exception allows providers to disclose communications configured by the user to be public.” (Id. at p. 1273.) The subscribers’ public communications came within the lawful consent exception because “one who posts a communication with a reasonable basis for knowing that it will be available to the public should be considered to have implicitly consented to such disclosure under section 2702(b)(3).” (Id. at p. 1271.) The Supreme Court cited Negro in rejecting Facebook’s argument that section 2702(b) affords a service provider the discretion to comply with a valid state subpoena. (Facebook, at pp. 1282–1285.)
Negro involved a civil discovery dispute in Florida which resulted in Google being served in California with a subpoena to produce emails from Negro’s gmail account. (Negro, supra, 230 Cal.App.4th at pp. 884–885.) Negro moved to quash the subpoena on grounds that he had not consented to the disclosure under the federal act. (Id. at pp. 885–886.) The motion was denied on the theory that issuance of the subpoena by a Florida court constituted consent under the act. (Id. at pp. 886–887.) A panel of this court rejected the notion that consent could be imputed to Negro by virtue of a subpoena, observing that the “lawful consent” exception “is not satisfied by consent that is merely constructive, implied in law, or otherwise imputed to the user by a court.” (Id. at pp. 889–891.)
Defendant’s consent to Global Tel Link’s disclosure is not imputed by the action of a court. Similar to the implicit consent to disclosure provided by a social media user who posts a communication knowing that the content will be available to the public (Facebook, supra, 4 Cal 5th at p. 1271), defendant implicitly consented to Global Tel Link’s disclosure of his calls by conversing on a phone line provided by the jail, knowing the calls are subject to monitoring and recording. (Cf. People v. Windham (2006) 145 Cal.App.4th 881, 886 [inmates impliedly consent to wiretap interception “when a jail or prison routinely monitors and records outgoing calls placed by inmates on the institution’s telephones and the inmates are put on notice of the recording policy”]; People v. Kelly (2002) 103 Cal.App.4th 853, 859 [same].)
- The district attorney retained some recordings beyond the 90-day retention period under section 1546.1, subdivision (g)
We now turn to whether, as a recipient of the disclosed recordings, either the jail or the district attorney’s office was required to destroy the recordings within 90 days of receipt under section 1546.1, subdivision (g). (Undesignated subdivisions refer to subdivision (g).) The prosecutor sought to use “at least 20” of the several hundred calls disclosed to the defense, and was prepared to play the automated notice for those calls at the suppression hearing. Referring to the call transcripts, defendant’s attorney commented that the notification on a call placed in April 2018 was different from the notification on a call from July 2, 2017, “[s]o there has been a change during that period of time.” The prosecutor asked the records custodian about two notices, one informing the inmate and recipient that the calls were subject to monitoring and recording, and the other adding that they may be disclosed to the district attorney or law enforcement. The custodian testified that the latter notice had been given from at least the time he became a records custodian three months earlier, but he had no knowledge of the form of the notice before that time. He understood that the notice had changed in 2017 when the service provider changed, but he did not testify to when in 2017 the notice changed or that the disclosure advisement was added at the time the service provider changed. After the trial court ruled that consent to recording was tantamount to consent to disclosure, precluding testimony from the records custodian regarding the notification given on each individual call, the prosecutor did not enter the recordings in evidence.
We agree with the trial court that which version of the advisement was given here is not relevant to whether the subdivision (g)(1) specific consent exception applies to the jail. “Specific consent” is defined as “consent provided directly to the government entity seeking information.” (§ 1546, subd. (k).) Defendant placed the calls as a jail inmate on a jail phone. According to the records custodian, notices were posted close to the phones and in the housing units warning: “Attention. These phones are being monitored and recorded at all times.” The shorter automated notice informed defendant that his calls from a correctional facility are subject to monitoring and recording. By proceeding with the calls, defendant gave consent specifically to the jail to access the calls. (People v. Windham, supra, 145 Cal.App.4th at p. 888 [reference to AT&T on signs and recorded notice did not suggest monitoring would be done by telephone provider for service purposes].)
The more pertinent question is whether, having received the recordings from the jail, the district attorney’s office was also covered by the exception to subdivision (g)’s 90-day destruction mandate. The subdivision (g)(4) exception to destruction requires that both the inmate and recipient be informed “that the service provider may disclose the information to the government entity.” The later calls containing the full advisement with the disclosure notice meet the subdivision (g)(4) notice requirement, and those calls are not subject to destruction. Defendant concedes as much, focusing on the absence of evidence that the disclosure warning was given on calls before May 2018.
As to the district attorney’s office, the earlier calls containing the shorter notification do not meet either the subdivision (g)(1) or (g)(4) exception to the destruction mandate. The district attorney’s office did not obtain “the specific consent of the sender or recipient of the call” and thus does not meet subdivision (g)(1)’s specific consent exception to destruction. Direct consent to the district attorney’s office is not achieved by the inmate and recipient acknowledging the monitoring and recording of their calls, and the trial court erred by ruling otherwise. Nor does the shorter notice inform the inmate and recipient that the calls may be disclosed to the district attorney’s office, as required by subdivision (g)(4). The Attorney General does not contend the short form warning is sufficient, arguing instead that the (g)(1) and (g)(4) exceptions are met because the custodian of records testified that all calls contained the disclosure notification. As we have explained, the custodian established only that calls made during his three-month tenure contained the full disclosure notice.
- Remand is appropriate to confirm the advisements given
Defendant argues that the trial court erred by refusing to consider the notification language on the calls the prosecutor sought to admit in evidence, which prevented the prosecution from meeting its burden to show that the warnings complied with subdivision (g)(4). We agree with respect to the district attorney’s retention of recordings that do not contain the full disclosure notification. We will therefore remand the matter to the trial court to allow the prosecution to identify which calls it seeks to use at trial and which of those do not contain the disclosure warning. We leave to the trial court in the first instance to determine whether the Act precludes the prosecution from using any recordings which were lawfully retained by the jail but not the district attorney’s office.
- No Pitchess Violation
The trial court granted defendant’s request to compel production of records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We have reviewed the sealed record of the Pitchess proceeding, including personnel records reviewed in camera. The trial court’s review comported with the procedures set forth in People v. Mooc (2001) 26 Cal.4th 1216, 1229–1230 (review and preservation of documents responsive to Pitchess request), and we see no abuse of discretion in the trial court declining to order disclosure of the personnel records for lack of relevance. (Id. at p. 1228 [Pitchess rulings are reviewed for abuse of discretion].)
IV. DISPOSITION
The judgment is reversed, and the case is remanded to the trial court for further proceedings consistent with this opinion.
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Grover, J.
WE CONCUR:
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Greenwood, P. J.
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Lie, J.
H046633 - The People v. Ambroise
[1] We note a discrepancy between the deputy’s testimony and four recordings admitted in evidence at defendant’s sentencing hearing. On those calls, initiated by defendant in 2018, the recipient was required to accept the call before the automated notification was played.
[2] We grant the Attorney General’s motion to augment the record on appeal with the stipulation.
