The Volokh Conspiracy

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Free Speech

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

on remand, jury must be instructed that it has to determine (among other things) whether the defendant “reasonably believed the conversation was not confidential.”


From People v. Davies, decided on Feb. 8 by Justices Herbert Levy, Kathleen Meehan, and Charles Poochigian but revised slightly Wednesday:

Appellant James Clinton Davies surreptitiously recorded a conversation he had with his local police chief while they were in the chief's office. A police lieutenant was also present, and appellant discussed his own uncharged criminal matter with the chief. Unbeknownst to the officers, appellant recorded the conversation as a video on his cellular phone. A short time later, appellant posted the video on Facebook.

A jury convicted appellant of recording a "confidential communication" in violation of Penal Code section 632, subdivision (a). Following this felony conviction, appellant was placed on formal probation for three years….

We agree with appellant that multiple prejudicial instructional errors occurred, which require reversal of his judgment. The court did not make it clear that, in order to establish guilt, the prosecution was required to prove that appellant intended to record a confidential communication. The court also erroneously instructed that a mistake of fact was not a legal defense 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….

Appellant spoke with the chief while inside the chief's office. The lieutenant was present during the conversation. The door to the chief's office remained open. At trial, the lieutenant testified that the chief had asked him to stay in the office with them because appellant "has had some issues in the past with the police department." …

At trial, the chief and the lieutenant testified that appellant appeared angry and upset during this brief meeting. Appellant was yelling. According to the lieutenant, appellant appeared possibly intoxicated….

The California Invasion of Privacy Act, section 630 et seq., was enacted in 1967 for the purpose of protecting the right of privacy by, among other things, "requiring that all [persons] consent to a recording of their conversation." Section 632 makes it a crime for a person to use an "electronic amplifying or recording device to eavesdrop upon or record" a "confidential communication." To constitute a crime, the defendant must eavesdrop or record "intentionally and without the consent of all parties" to the confidential communication. {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."}

A key issue in this matter is the definition of what constitutes a "confidential communication." Section 632 defines this as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, 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." ….

[T]he California Supreme Court [has] endorsed the following test for determining confidentiality of a communication: "'[U]nder section 632 "confidentiality" appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is "listening in" or overhearing the conversation.'" The high court stated, "a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded." …

[But the jury instruction given in this prosecution] was defective in two ways: first, it failed to address adequately the intent or knowledge required by appellant to find him criminally liable under section 632, subdivision (a). Second, it incorrectly stated that a mistake of fact was not a legal defense for intent….

[A]ppellant's jurors were told that appellant was guilty if he "intentionally used a recording device to record a communication." The jurors were instructed that appellant was guilty if, at the time of the recording, one of the parties to the communication desired it to be confidential; any party to the communication knew or reasonably should have known that the conversation was confidential; and all parties to the conversation did not consent to the recording. The instruction given in this matter erroneously suggested that appellant could be convicted even if he lacked an intent to record a confidential communication…. Instead, the instruction suggested that appellant could be convicted even if he reasonably believed the conversation was not confidential.

Instructional error also occurred because the trial court informed the jury that a mistake of fact was "not a legal defense for intent." 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….

This trial record contains some evidence from which rational jurors could conclude that appellant did not have the intent to record a confidential communication, or he did not reasonably believe he was recording a confidential communication. Likewise, it is possible that rational jurors could determine that appellant had held a reasonable mistaken belief that he could record this conversation.

Appellant went to the police department on the afternoon in question and he asked to speak with the chief. The chief agreed to speak with him, and appellant was escorted through a locked door. Appellant was not searched. The recorded conversation occurred in the chief's office. The door to the chief's office was left open and the lieutenant was present. Appellant discussed an alleged criminal matter that took place between appellant and D.R. Appellant expressed his frustration that the police were not arresting D.R.

Appellant did not testify at trial. However, when interviewed by the detective after this incident, appellant was asked if he had realized the chief's office was a "controlled area," and appellant said that he did not. Appellant was asked if he thought it would have been better to inform the chief that he was recording. Appellant responded that "you guys can record me at any time." The detective informed appellant that he (appellant) must have known that the area near the chief's office was not public because of the "key encoded locked door." Appellant disagreed because the area seemed "wide open." Appellant said that he "never considered it." …