People v. Garvey

99 Cal. App. 3d 320, 160 Cal. Rptr. 73, 1979 Cal. App. LEXIS 2506

• Court: California Court of Appeal
• Decided: December 3, 1979
• Docket: Crim. 18872
• Status: Published

Opinions

Opinion

CHRISTIAN, J.

Peter James Garvey appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)).

After spending some hours drinking in a bar, appellant attacked without warning another patron who was making ready to leave. The victim fell to the floor and appellant kicked him in the head. Other patrons subdued appellant and the bartender ordered him to leave. On his way out appellant passed the victim, who was still on the floor, and again kicked him in the head. The victim suffered serious injuries.

While appellant was in jail awaiting trial, appellant wrote to a friend. The letter, which was proved at trial through the introduction of a copy, contained a narrative of the events of trial: “[I] just walked up to this guy and nutted up on him, must have caught him by surprise as light as I am, anyhow, I started kicking him in the head, then quit and went out of the front door and the man was on us. Charged with A.D.W. The weapon is my shoe.”

Before trial, appellant moved to suppress the letter on the theory that its interception was a violation of “First and Fourth Amendment rights.” The court reserved its ruling and during the trial took evidence out of the hearing of the jury concerning the events which brought the letter into the possession of the prosecutor. The motion to suppress evidence was denied.

Defense counsel then objected to evidence based on a copy of the letter (the original having been sent on to the addressee) under the best evidence rule. Upon a showing that the addressee of the letter denied receiving it and stated “that even if I had, I sure wouldn’t turn it over to you.” The court ruled the copy admissible under exceptions to the best evidence rule (Evid. Code, §§ 1501, 1502).¹

Appellant contends, relying on Procunier v. Martinez (1974) 416 U.S. 396 [40 L.Ed.2d 224, 94 S.Ct. 1800], and related cases, that the letter should have been suppressed on the ground that it was obtained for the prosecution as the result of an unconstitutional program of mail censorship. This contention cannot be sustained. The letter was copied as authorized by section 1151 of the Humboldt County Administrative Code, pursuant to a program of monitoring all incoming and outgoing prisoner mail. The purpose of the monitoring operation is to protect jail security. This program is consistent with the holding of the United States Supreme Court in Procunier v. Martinez, supra, (see 416 U.S. at p. 413 [40 L.Ed.2d at p. 240]).

The jailer monitoring outgoing mail copied appellant’s letter because it contained an offer to provide the addressee, who was then incarcerated in Contra Costa County, with a pistol. The jailer did not censor the letter; after taking copies which ultimately reached the prosecutor and defense counsel, he posted the letter to the addressee. These actions by the jailer did not constitute a violation of First Amendment rights.

Appellant’s claim of the Fourth Amendment violation is also without merit. Except where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him. (People v. Manson (1976) 61 Cal.App.3d 102, 152 [132 Cal.Rptr. 265], cert. den. 430 U.S. 986 [52 L.Ed.2d 382, 97 S.Ct. 1686].)

Appellant contends that use of a copy of the letter, in lieu of the original, should have been precluded under the best evidence rule (Evid. Code, § 1500). But there was proof that the addressee had received the letter in the Contra Costa County jail. His cell was then searched pursuant to a warrant and the letter was not found. This evidence adequately established the unavailability of the document.

Appellant contends that it was improper for the court to allow proof of part of the contents of the letter after the defense had rested its case. The court admitted the evidence at that late stage of the trial on the dual ruling that the material was proper rebuttal evidence and that in the exercise of discretion the prosecution’s case in chief should be reopened. The first theory of admission was doubtful at best as the trial court recognized. We do not reach the question because the second alternative basis of the court’s ruling must be sustained as an exercise of discretion under Penal Code section 1094.² The evidence was highly pertinent and it was offered as soon as the necessary foundational showing could be made. Appellant had full opportunity to respond to the material taken from the letter. There was no abuse of discretion. (Cf. People v. Demond (1976) 59 Cal.App.3d 574 [130 Cal.Rptr. 590].)

Finally appellant contends that in pronouncing judgment the court should not have considered factors personal to appellant, as authorized by rule 421(b), California Rules of Court. This contention must be rejected as contrary to governing authority. (See People v. Cheatham (1979) 23 Cal.3d 829 [153 Cal.Rptr. 585, 591 P.2d 1237].

The judgment is affirmed.

Caldecott, P. J., concurred.

1 Evidence Code section 1501: “A copy of a writing is not made inadmissible by the best evidence rule if the writing is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.”

Evidence Code section 1502: “A copy of a writing is not made inadmissible by the best evidence rule if the writing was not reasonably procurable by the proponent by use of the court’s process or by other available means.”

2 Penal Code section 1094: “When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in the last section may be departed from.”