Monday, October 24, 2011

Motion to Dismiss delivered to Public Defender's Office

I dropped off the following motion to dismiss to the Public Defender's office.  I handed this motion to Cathy Pattinson's supervisor Nicole Wong Chong.   I have called my attorney three times and she has yet to answer a phone call.  My pre-trial date is next week.  I hope they file a motion with the court.


IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES, WEST JUDICIAL DISTRICT, AIRPORT COURT
_____________________________________________ |
THE PEOPLE OF THE STATE OF CALIFORNIA,     |
                                                                   Plaintiff           |
                                                                                           |            Case No. 1WA32230
                                   v                                                      |
                                                                                           |
                           JAMES ANTHONY BRETNEY,         |
                                                                                           |
                                                                    Defendant.      |            October 20, 2011
_____________________________________________ |

MEMORANDUM OF LAW IN SUPPORT OF MOTIONS TO DISMISS
            Defendant James Anthony Bretney submits this Memorandum of Law in support of his pending motion to dismiss on the ground that pursuant to California Penal Code 995.
Summary of Grounds for Motions.
Even if everything the prosecution alleges is true, the conversation in question was not a confidential communication.

The defendant depressed a button that activated the speakerphone option on his cellular phone.  Detective Eddie Soto knew that the speakerphone option had been activated when the defendant asked Detective Soto to “hold on.”    Detective Soto consented to others listening in on this conversation therefore it is not a confidential communication.

The suspect has a right to privacy and therefore his communications are confidential.  This is also true for complainants, witnesses and private persons.  The defendant at the time was a suspect in case involving conspiracy to commit premeditated murder, assault and an act of terrorism. 

No conversation with a police officer in the course of his public duties is confidential.    A police officer is a public servant.   A police officer works for the public.  He is in the pay of the public.  His work is the public business.  He records everything he does everyday he is on the clock in police, crime and incident reports.  These reports are in the public domain and the public has a right to view them. Dash cameras record the actions of police officers.  The officers wear digital audio recording devices to record their conversations.  The state cannot assert a privacy right afforded to public officers involved in public business.

The word of a police officer always rates higher than a law abiding citizen in a court of law despite police promises that they are here to protect and serve the public.  A police officer, assuming he is a reasonable person with average intelligence, must expect in the light of the Rodney King taping, the taping of the death of Kelly Thomas, and the police killing of Long Beach resident Douglas Zerby that the citizens will tape and record him.

Current case law substantiates this view. Rogers v. Ulrich , 52 Cal.App.3d 894  held that "But appellant [Rogers] has not shown how he could allege that a communication with a public employee [Ulrich], concerning public business such as the use of the council chambers for a meeting, could be [52 Cal.App.3d 900] confidential within the meaning of the statute."  The Rogers case clearly vindicates the defendant as it concerns a communication with a public employee concerning public business is not confidential.

No conversation with a police officer in the course of his public duties where the other party is a suspect is confidential.  

Deteresa v. ABC (121 F.3d 460) in quoting the statute “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  Detective Eddie Soto stated that the he would record the defendant’s responses in his report in that circumstance the communication was not confidential. 

Further, Deteresa states  “neither party reasonably expects the communication to be confined to the parties, it is not confidential.”  Therefore Detective Soto’s communication with the defendant is not confidential.

According to the Miranda warning that Detective Soto did not read to the defendant, the defendant has a ”right to remain silent. Anything [he might say] or do can and will be held against [him] in a court of law.”  Detective Eddie Soto initiated the call, identified himself that he was a Santa Monica Policeman and that it was not a joke or crank call.  He said whatever I say to him will go in his report. 

If we were to apply the DeTeresa case further we would find:  “we must ask whether [Officer Eddie Soto] had an objectively reasonable expectation that the conversation would not be divulged to anyone else. [Bretney] contends that there is no triable issue as to the fact that [Officer Eddie Soto] had no such expectation-[Soto] immediately revealed that he worked for the [Santa Monica Police Department] and wanted [Bretney] to discuss [the accusations of conspiracy to commit premeditated murder, assault and an act of terrorism; Officer Eddie Soto] did not tell [Bretney] that [his] statements were in confidence; [Officer Eddie Soto] did not tell [Bretney] that the conversation was just between them; and [Officer Eddie Soto] did not request that [Bretney] not share the information with anyone else. . . .  that no one in [Detective Eddie Soto]'s shoes could reasonably expect that a Police Officer would not divulge Bretney’s responses as to the accusations of conspiracy to commit premeditated murder, assault and an act of terrorism.

If Penal Code, section 633 exempts law enforcement officers from the operation of section 632 to the extent that they could lawfully overhear conversation prior to the enactment of section 632, a reasonable person of average intelligence may reasonably expect that the communication may be overheard or recorded.  Therefore the communication is not confidential. (People v. Blair (1969) 2 Cal. App. 3d 249 [82 Cal.Rptr. 673] )

A  "man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment." (People v. Morgan, 197 Cal. App. 2d 90, 93 [16 Cal.Rptr. 838] [cert. den. 370 U.S. 965 [8 L.Ed.2d 830, 82 S.Ct. 1606]]; People v. Lopez, 60 Cal. 2d 223, 248 [32 Cal.Rptr. 424, 384 P.2d 16]; People v. Chandler, 262 Cal. App. 2d 350, 355 [68 Cal.Rptr. 645]; Lanza v. New York, 370 U.S. 139, 143 [8 L.Ed.2d 384, 387, 82 S.Ct. 1218].)  A conversation, even a telephonic conversation where the police officer initiated the phone call and is engaging in a type of fishing expedition and soliciting the suspect to incriminate himself is a kind of detention.    Therefore the communication is not confidential. (People v. Blair (1969) 2 Cal. App. 3d 249 [82 Cal.Rptr. 673] )

The Plaintiff claims a violation of his constitutional right of privacy in the recording of the conversation in question. It is now settled law that detainee, an inmate of a jail or prison may not successfully complain of such a recording even if its taking was not known to him at the time.

In People v. Miller, 252 Cal. App. 2d 877, 881 (fn. 2) [60 Cal.Rptr. 791] we said: "It is well established, moreover, 'that a jail shares none of the attributes of privacy of a home, an automobile, an office or a hotel room' (Lanza v. New York, 370 U.S. 139, 143 [8 L.Ed.2d 384, 387, 82 S.Ct. 1218]); that inmates of prisons do not have the usual array of federal and state constitutional [262 Cal. App. 2d 356] rights guaranteed to nonincarcerated citizens. (Price v. Johnston, 334 U.S. 266, 285 [92 L.Ed. 1356, 1369, 68 S.Ct. 1049]; 

If "In re Ferguson, 55 Cal. 2d 663, 670-671 [12 Cal.Rptr. 753, 361 P.2d 417]; Davis v. Superior Court, 175 Cal. App. 2d 8, 20 [345 P.2d 513]; People v. Hernandez, 229 Cal. App. 2d 143, 149 [40 Cal.Rptr. 100]); and that prison authorities may subject inmates to intense surveillance and search unimpeded by Fourth Amendment barriers. (Lanza v. New York, supra; People v. Hernandez, supra.).

In People v. Morgan, 197 Cal. App. 2d 90, 92-94 [16 Cal.Rptr. 838] (cert. den. 370 U.S. 965 [8 L.Ed.2d 830, 82 S.Ct. 1606]) it was held that an electronic recording of conversation between a county jail prisoner and his sister was not an illegal search and seizure nor an unlawful invasion of the prisoner's privacy. The court stated as follows: 'A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment.' (P. 93.)


In People v. Lopez, 60 Cal. 2d 223, 248 [32 Cal.Rptr. 424, 384 P.2d 16], it was held that 'Except only insofar as concerns consultation with his attorney in a room designated for that purpose, a prisoner has no right of privacy in a jail.' " (See also People v. Apodaca, 252 Cal. App. 2d 656, 658-659 [60 Cal.Rptr. 782].) Reasonably the right of defendant to privacy while under valid arrest in a police car can be no greater than if he were confined in jail.

A reasonable person of average intelligence would presume that solicitous conversations of an incriminating nature with the police where the person in question is a suspect would be recorded and therefore not confidential communications.

No conversation with a police officer in the course of his public duties where the other party is a suspect and the alleged crime is conspiracy to commit an act of terrorism or premeditated murder or assault (the threat of violence.)  By the Deteresa reasoning, the topic of a conspiracy to commit an infamous act of mass murder on the scale of the Virginia Tech shooting, the Oklahoma City bombing or the Olso shooting is not confidential.  In August 16 of this year, a report of unconfirmed gunman on the Santa Monica College campus made national headlines. 

The conversation was not confidential as the defendant had a reasonable expectation that the other party recorded the conversation. 

At the time of the call, the defendant had no independent verification of the caller’s police credentials.  Therefore the defendant had a reasonable expectation that conversation was recorded and not confidential.  The caller was a police officer.  The caller told the defendant that this conversation was to be recorded in the caller’s incident report.  Also police officers record their conversations on an audio digital recording device.

At the time of the call, the defendant had no independent verification of the caller’s police credentials.  Therefore the defendant had a reasonable expectation that conversation was recorded and not confidential.    The defendant could reasonable expect that the phone call in question was a crank  or joke call. 

The conversation was not confidential as the defendant had a reasonable expectation that the other party recorded the conversation.   People v. Blair (1969) 2 Cal. App. 3d 249 [82 Cal.Rptr. 673] , People v. Lopez, 60 Cal. 2d 223, 248 [32 Cal.Rptr. 424, 384 P.2d 16], People v. Morgan, 197 Cal. App. 2d 90, 92-94 [16 Cal.Rptr. 838] (cert. den. 370 U.S. 965 [8 L.Ed.2d 830, 82 S.Ct. 1606]), Davis v. Superior Court, 175 Cal. App. 2d 8, 20 [345 P.2d 513]; People v. Hernandez, 229 Cal. App. 2d 143, 149 [40 Cal.Rptr. 100], People v. Miller [252 Cal. App. 2d 877], People v. Chandler [262 Cal. App. 2d 350] are cases upholding the convictions of those held in police custody based on a recording by the police without informing the defendant of the recording device.

In Warden v. Kahn (1979) 99 Cal.App.3d 805 , 160 Cal.Rptr. 471, the court stated “We are mindful of the general principle that in a criminal prosecution the defendant should be given the benefit of doubt as between two plausible interpretations of a penal statute. (E.g., People v. Ralph, supra, 24 Cal.2d at p. 581.

O'Laskey v. Sortino(1990) 224 Cal.App.3d 241 , 273 Cal.Rptr. 674 stated when communications may be confidential:  “an expectation of privacy is objectively reasonable in telephone conversations between business associates relating to ongoing ventures (Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1488-1490 [250 Cal.Rptr. 819]), between an attorney and a physician who had previously refused to assist the attorney in a personal injury case (People v. Wyrick, supra, 77 Cal.App.3d 903, 909), and probably between an attorney and a blind client notwithstanding the client's belief that a reasonable attorney would expect his telephone conversations with a blind client to be recorded (Warden v. Kahn (1979) 99 Cal.App.3d 805, 814-815 [160 Cal.Rptr. 471]). . . .  The investigator was a complete stranger to [the defendant] . . .  In short, judged objectively, there was no reasonable expectation of [224 Cal.App.3d 249] confidentiality and nothing to indicate a desire by [Detetcive Eddie Soto] that the communication be confined to the parties thereto.

                                                                                                    Respectfully submitted,





                                                                                             BY: ______________________________
                                                                                                    JAMES ANTHONY BRETNEY
                                                                                                    1421 West Venice Boulevard # 7
                                                                                                     Venice, California 90291
                                                                                                     Tel. (520) 255 4137



1 comment:

James A. Bretney said...

case dismissed