holding that to make a marital communication in confidence, "one must intend nondisclosure and have a reasonable expectation of privacy" (citation and internal quotation marks omitted)
How later courts described this case
- holding that to make a marital communication in confidence, "one must intend nondisclosure and have a reasonable expectation of privacy" (citation and internal quotation marks omitted)
- holding that there is no expectation of privacy in jail visiting area and that federal wiretap statute does not apply in such situations
- same conclusion, but such conviction may not be useable for impeachment of witness for other reasons
- conc. & dis. opn. of Woods, J.
Written by the judges who cited it.
The opinion
WOODS (Fred), J., Concurring and Dissenting.
I concur in the affirmance of the Ford judgment and dissent from the majority opinion’s disposition as to Von Villas.
I dissent from that disposition because it leaves intact convictions obtained by a trial of “undermine[d] integrity [and] taint[ed] [by] fundamental unfairness. . . (People v. Marshall (1990) 50 Cal.3d 907, 951 [ 269 Cal.Rptr. 269 , 790 P.2d 676 ].)
Instead of forthrightly reversing the Von Villas judgment and ordering a new trial, as the law requires, the majority shrinks from its duty and without authority or coherent explanation simply invokes the deus ex machina of ordering a new trial hearing. Conceding that Von Villas proved once that his *262 trial was unfair, the majority opinion now—three years later—requires him to prove it again.
How does the majority opinion reach this result? Only by fundamentally distorting appellate court function, by ignoring binding appellate authority, and by creating out of whole cloth a new rule irreconcilable with stare decisis. I explain.
The majority opinion concedes Von Villas proved juror misconduct.
The majority opinion concedes the parties agreed to a stipulation which the trial court accepted. (Maj. opn., ante, pp. 252, 257.) By that stipulation Von Villas’s investigator, Mr. Boykoff, was deemed to have testified Juror Cornick told him that, during the Von Villas deliberations, the jury discussed the Ford jury’s conviction of Ford for murder. (Maj. opn., ante, pp. 251-252, fn. 15.) They then convicted Von Villas of murder.
This evidence, admitted without objection and by stipulation, was properly received. The majority opinion—despite some hand wringing—does not claim otherwise.
Further, the trial court weighed and evaluated this testimony and determined it to be truthful. That is, the trial court determined both that Juror Cornick had made the statements to investigator Boykoff and that the statements were true. The trial court stated. “Well, it narrows down to the issue of did ... the knowledge of the jurors of Ford’s conviction influence the jury improperly and has it prejudiced the defendant.” (Italics added.) The majority opinion concedes as much. (Maj. opn., ante, p. 257.)
The majority opinion also concedes, as it must, that this obtaining of evidence “from sources other than in court is misconduct. . .” (Maj. opn., ante, p. 255.)
Thus, the majority opinion concedes Von Villas presented evidence of jury misconduct, that evidence was properly received, and the trial court determined it to be truthful.
The majority opinion concedes the juror misconduct was prejudicial.
The majority opinion concedes, juror misconduct having been proved, prejudice is presumed. (Maj. opn., ante, p. 255.) Further, as the majority *263 opinion states: “The prosecutor. . . produced no evidence to either disprove the allegation of jury misconduct or to prove that if there was misconduct it caused no prejudice to Von Villas.” (Maj. opn., ante, p. 253.)
That the misconduct was prejudicial is beyond dispute. Apart from juror bribery or comparable felony conduct, one can hardly imagine misconduct more prejudicial than one jury discovering another jury has just convicted the accomplice of its defendant.
The majority opinion concedes that prejudicial jury misconduct requires a new trial.
Our Supreme Court has held that if a defendant proves prejudicial juror misconduct “the state must then rebut the presumption or lose the verdict.” (People v. Marshall, supra, 50 Cal.3d 907, 949 [italics added]; see also People v. Andrews (1983) 149 Cal.App.3d 358, 366 [ 196 Cal.Rptr. 796 , 46 A.L.R.4th 1 .) The majority opinion concedes the rule. (Maj. opn., ante, p. 255 [If the prosecution does not rebut the presumption of prejudice “the defendant is entitled to a new trial.”] Italics added.)
Creating out of whole cloth a new rule irreconcilable with stare decisis.
The majority opinion avoids the conclusion its concessions require—the ordering of a new trial—by creating out of whole cloth a new rule irreconcilable with stare decisis. The new rule apparently is that only live testimony counts. Otherwise there will be “an untenable situation for the trial judge.” (Maj. opn., ante, p. 257.) “We are convinced,” the majority opinion states, ‘that the trial judge must be allowed the opportunity to at least test the credibility of Juror [] Comick . . .” (Maj. opn., ante, p. 258.)
No authority is cited for this new rule. People v. Perez (1992) 4 Cal.App.4th 893 [ 6 Cal.Rptr.2d 141 ], for some unexplained reason discussed by the majority opinion, is—in the words of the majority opinion—“quite different” from the instant case. (Maj. opn., ante, p. 259.)
That this rule abrogates Evidence Code section 140 (“ ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.” Italics added.) is not considered by the majority opinion.
That this rule is irreconcilable with stare decisis is also not considered by the majority opinion. (See In re Mosley (1970) 1 Cal.3d 913 [83 CaLRptr. *264 809, 464 P.2d 473 ] [the entire trial consisted of stipulated to testimony, viz., the preliminary hearing transcript]; People v. Hobbs (1970) 10 Cal.App.3d 831 [ 89 Cal.Rptr. 123 ]; People v. Moreland (1971) 15 Cal.App.3d 269 [ 92 Cal.Rptr. 563 ]; People v. West (1971) 15 Cal.App.3d 1015 [ 93 Cal.Rptr. 496 ]; People v. Neder (1971) 16 Cal.App.3d 846 [ 94 Cal.Rptr. 364 ]; People v. Johnson (1971) 18 Cal.App.3d 959 [ 96 Cal.Rptr. 421 ]; People v. Cook (1971) 19 Cal.App.3d 405 [ 96 Cal.Rptr. 860 ]; People v. Guerra (1971) 21 Cal.App.3d 534 [ 98 Cal.Rptr. 627 ]; People v. Soranno (1971) 22 Cal.App.3d 312 [ 99 Cal.Rptr. 235 ]; People v. Sanchez (1972) 24 Cal.App.3d 664 [ 101 Cal.Rptr. 193 ]; People v. Dorsey (1972) 25 Cal.App.3d 366 [ 101 Cal.Rptr. 826 ]; People v. Howell (1973) 30 Cal.App.3d 228 [ 105 Cal.Rptr. 748 ]; People v. Phillips (1973) 31 Cal.App.3d 483 [ 107 Cal.Rptr. 386 ] [all trials by stipulation, just some of the more than 10,000 such trials in Los Angeles County during 1970. (Greenwood et al., Prosecution of Adult Felony Defendants (1976) pp. xxiii, 125)]; People v. Hall (1979) 95 Cal.App.3d 299, 314-316 [ 157 Cal.Rptr. 107 ] [trial evidence included the stipulated evidence of a witness]; People v. Phillips (1985) 172 Cal.App.3d 670 [ 218 Cal.Rptr. 524 ] [stipulated to preliminary hearing transcript plus live testimony]; People v. Townsend (1971) 20 Cal.App.3d 919 [ 98 Cal.Rptr. 8 ] [stipulation to doctors’ reports at a mentally disordered sex offender hearing]; People v. Wells (1983) 149 Cal.App.3d 497 [ 195 Cal.Rptr. 608 ] [stipulation to preliminary hearing transcript and police reports]; In re Michael V. (1986) 178 Cal.App.3d 159 [ 223 Cal.Rptr. 503 ] [entire trial consisted of a stipulation to police reports ]; In re Steven H. (1982) 130 Cal.App.3d 449 [ 181 Cal.Rptr. 719 ] [trial consisted of stipulated suppression hearing testimony]; People v. Drieslein (1985) 170 Cal.App.3d 591 [ 216 Cal.Rptr. 244 ] [trial consisted of a “live” witness and stipulations to the preliminary hearing and suppression hearing transcripts]; People v. Imler (1992) 9 Cal.App.4th 1178 [ 11 Cal.Rptr.2d 915 ] [by stipulation, trial consisted of a police report, tape recording, a memorandum, trial briefs, and testimony of one witness.])
Fundamentally distorting appellate court function.
When an appellate court attempts to tell parties how to try a case, how evidence is to be offered, what witnesses must be called, what stipulations cannot be agreed to—it ceases to be an appellate court. Our function is to review hearings and trials, not orchestrate them. The majority opinion violates this fundamental precept.
Conclusion.
The majority opinion is fundamentally flawed. Reading it, one has the impression that its author knows reversal is required but just can’t bring *265 himself to say so. So, like a father, refereeing his defeated son’s tennis match, the majority opinion requires that the last point be replayed.
Such a disposition may be called many things. Justice is not one of them.
Petitions for a rehearing were denied December 3, 1992, and December 10, 1992. Woods, J., was of the opinion that the petition filed December 10, 1992, should be granted. Appellants’ petition for review by the Supreme Court was denied February 11, 1993. George, J., did not participate therein. Baxter, J., was of the opinion that the petition should be granted.