Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0306
SCOTLAND, P. J.
Defendant Rodney John Sency was charged by indictment with a felony, voluntary manslaughter, and two misdemeanors, illegal movement of a dead body and failure to notify the coroner of a death. Following denial of his motion to dismiss the indictment on the ground of outrageous government conduct, a jury acquitted defendant of voluntary manslaughter but convicted him of the two misdemeanors. Imposition of sentence was suspended, and he was placed on probation with various conditions.
On appeal, defendant contends the trial court erred by denying the motion to dismiss the indictment. We shall affirm the judgment.
TRIAL FACTS
On August 2, 2002, defendant went to the El Dorado County Sheriff’s Office in South Lake Tahoe, accompanied by his attorneys. Defendant reported he knew of a dead body and gave its location to a deputy sheriff. Attorney Routsis then told the deputy that defendant would not answer any questions. An investigation commenced, and law enforcement officers eventually found the body.
On August 6, 2002, defendant returned to the sheriff’s office, accompanied by his attorneys. In a statement that was videotaped, defendant said to Deputy Sheriff Patrick Tener: “Ed Ortega tried to kill me with a weapon and I killed him.”
At trial, defendant testified as follows: He owned a ranch near the Lake Tahoe area, had hired Ortega to do some masonry work, and let Ortega live on the ranch. Ortega drank too much and often failed to show up for work on time or to show up at all. On July 31, 2002, defendant told Ortega that defendant was dissatisfied with his work and wanted him to leave the following Monday. They argued, and when defendant threatened to call the police, Ortega attacked him with a utility knife. As Ortega tried to stab him, defendant hit Ortega several times with the handle and end of a sledge hammer, killing him. Defendant panicked, put the body on the flatbed of Ortega’s truck, drove the truck to a remote area, got out, caused the truck to go over an embankment, and walked home.
PROCEDURAL FACTS
Following defendant’s indictment, Attorney Routsis received as discovery a videotape of Deputy Tener’s interview of defendant on August 6, 2002. In addition to defendant’s statement that he killed Ortega, the tape contained a conversation between defendant, Routsis, and Attorney Laub after Tener had left the room.
Claiming the recording of his conversation with his attorney was intentionally made and violated his attorney/client privilege, defendant moved to dismiss the indictment on the ground of outrageous governmental conduct. An evidentiary hearing was conducted, starting on April 4, 2005.
EVIDENTIARY HEARING ON MOTION TO DISMISS THE INDICTMENT
In accordance with the rules governing appellate review of challenges to the sufficiency of the evidence, we set forth the evidence in the light most favorable to the trial court’s ruling. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Deputy Tener testified that on August 6, 2002, he was told there were people in the sheriff’s office parking lot who wanted to speak to a deputy sheriff. Tener put a videotape in the interview room recorder, went to the parking lot where he contacted defendant and Attorneys Routsis and Laub, and took them to the interview room. Routsis said defendant would make a statement, but would not answer any questions. Defendant then stated: “Ed Ortega tried to kill me with a weapon and I killed him.” Surprised by defendant’s statement, Deputy Tener responded that this was “over [his] head” and he needed to call the detectives who were working on the case. Tener left the interview room and called Detective Tom Hoagland, who was in Placerville, and reported what had occurred. Tener then returned to the interview room and told defendant, Routsis, and Laub it would take the detectives about an hour to an hour and a half to arrive. After leaving to make the coffee, Tener returned to the interview room and took defendant, Routsis, and Laub to the squad room where they all “hung out” eating pizzas and drinking coffee. Tener had forgotten to turn off the videotape, but at “some point” remembered it was still running and went back to the interview room and shut it off. Because the interview with defendant had been so short, Tener never looked at the videotape.
Detective Hoagland testified he and Detective Paul Moschini arrived at the South Lake Tahoe office about two hours after Deputy Tener’s call. After Tener repeated what he had told Hoagland by telephone, Hoagland and Moschini interviewed defendant, who gave the same statement he had made to Tener. Hoagland never viewed the videotape.
Detective Moschini testified he recalled seeing the videotape while at the South Lake Tahoe office, but that he did not watch it beyond the point when Deputy Tener stated this was “over his head” and walked out of the interview room. Moschini could not remember whether Detective Hoagland and Sergeant Hal Lamb, the detectives’ commanding officer, were present when Moschini saw the tape.
Deputy District Attorney Paul Sutherland, who was assigned to prosecute this case, testified he received a telephone call from Attorney Routsis about his receipt of the videotape as part of the discovery. Routsis informed Sutherland that the tape included about 40 minutes of his confidential communications with defendant. Sutherland, who had been unaware of the videotape, watched it for about two minutes forty seconds after he heard Tener say this was over his head and leave the interview room. When he heard Routsis say “this is clearly self-defense but for the post self-defense stupidity” and “we’re going to get through this,” Sutherland realized he was watching the confidential communication part of the tape. Therefore, he turned off the tape.
Sergeant Hal Lamb testified that, after receiving a telephone call from Deputy Tener regarding defendant’s interview, he drove from Placerville to the South Lake Tahoe Sheriff’s office, arriving about the same time as Detectives Hoagland and Moschini. Tener told Lamb that defendant had said he killed Ortega in self-defense. Dumbfounded that an attorney would have his client make such a statement, but would not permit the officers to “go any further than that,” Lamb told Tener he wanted to see the videotape. He could not recall whether Hoagland and Moschini were present when Lamb viewed the videotape. Believing the interview was over when Tener left the room, Lamb began thinking of what to do next. Although he was no longer paying attention to the tape, it continued to run for “maybe five minutes.” During that time, Lamb remembered hearing Attorney Routsis say something about stupidity and self-defense and also heard some “personal chit chat” between Routsis and defendant, though Lamb could not recall what it was.
TRIAL COURT’S RULING
The trial court denied the dismissal motion, explaining its decision as follows: Videotaping of the attorney-client conversation was unintentional, as reflected in the testimony of Deputy Tener; the “evidence regarding who viewed the tape and what they viewed [was] inconclusive”; although Detective Lamb had viewed some of the conversation between defendant and his counsel, it was “not clear that... Lamb [was] aware that the portion of the tape he was viewing was a confidential communication”; and there was no showing that “Defendant or his counsel suffered any prejudice to the preparation of the Defendant’s case or the conduct of the Defendant’s trial as a result of the taped portions in question.” The court concluded that Barber v. Municipal Court (1979) 24 Cal.3d 742 (hereafter Barber), upon which defendant relied, was distinguishable because, unlike in this case, Barber involved intentional governmental interference with the Sixth Amendment right to counsel.
DISCUSSION
Defendant argues the evidence at the hearing on his motion to dismiss established that the recording of his privileged conversation with his attorney was made pursuant to a policy of the sheriff’s department to record such conversations and, thus, the recording must have been intentionally made. Such a policy, defendant continues, is so outrageous that only dismissal of the indictment would suffice as a remedy to curb this behavior.
At oral argument in this court, defendant expressly conceded he cannot establish that the recording prejudiced his case.
The record does not support defendant’s underlying premise or his conclusion.
In United States v. Morrison (1981) 449 U.S. 361 [66 L.Ed.2d 564] (hereafter Morrison), agents knew the defendant had retained counsel; nonetheless, they contacted her, without her attorney’s knowledge, in an attempt to obtain her cooperation in a related investigation. (Id. at p. 362 [66 L.Ed.2d at p. 566].) The agents disparaged the defendant’s attorney, said the defendant would be better off represented by the public defender, and told her she would gain benefits by cooperating but would face a “stiff jail term” if she did not. (Ibid.) Her counsel moved to dismiss the indictment with prejudice because of governmental interference with the defendant’s Sixth Amendment right to counsel. (Id. at p. 363 [66 L.Ed.2d at p. 567].) The sole basis for the motion to dismiss was “the egregious behavior of the agents,” which “‘interfered’ in some unspecified way with [the defendant’s] right to counsel.” (Ibid.)
Recognizing that the behavior of the agents was “egregious,” the Supreme Court denied relief, observing that, “absent demonstrable prejudice, or substantial threat thereof, dismissal of the indictment is plainly inappropriate, even though the violation may have been deliberate.” (Morrison, supra, 449 U.S. at pp. 365-367 [66 L.Ed.2d at pp. 568-569].)
Notwithstanding the requirement of prejudice announced in Morrison, the dismissal of an accusatory pleading has been approved as the appropriate remedy for some egregious governmental behavior. (See Boulas v. Superior Court (1986) 188 Cal.App.3d 422, 429 [“Dismissal is, on occasion, used by courts to discourage flagrant and shocking misconduct by overzealous governmental officials in subsequent cases”].)
Assuming, but not deciding, that outrageous government conduct may constitute a bar to prosecution without a showing of prejudice, this is not such a case.
The essence of defendant’s position is he established at the evidentiary hearing that the officers were not truthful about how much of the videotape they observed and that it was the policy of the sheriff’s department to record all conversations occurring at the sheriff’s department. Defendant supports this argument by citing conflicts in testimony of the officers and the prosecutor, and resolving these conflicts in his favor, a procedure wholly at odds with the rules governing appellate review of a trial court’s finding of fact (see discussion below). He is also wrong in the way he characterizes the testimony about the sheriff’s department policy of recording interviews conducted at the sheriff’s station.
The rules of appellate review of challenges to findings of fact by a trial court are well settled. We examine the record for substantial evidence to support the trial court’s ruling. (People v. Howard (1992) 1 Cal.4th 1132, 1155.) Substantial evidence means evidence that is reasonable, credible, and of solid value. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) In determining whether there is substantial evidence, we view the evidence in a light most favorable to respondent and presume in support of the ruling the existence of every fact the trier could reasonably deduce from the evidence. (People v. Iniguez (1994) 7 Cal.4th 847, 854.) It is the trial court’s province to determine the credibility of witnesses and resolve conflicts in the evidence. (People v. Hamlin (2009) 170 Cal.App.4th 1412, 1463.) Thus, the uncorroborated testimony of one witness may provide substantial evidence, unless the testimony is physically impossible or inherently improbable. (People v. Scott (1978) 21 Cal.3d 284, 296.)
Typical of defendant’s purported impeachment of the officers (which supposedly shows they were untruthful in their testimony about how much of the videotape they watched) are the following examples: Detective Hoagland testified he had never watched the videotape and that Detective Moschini had told Hoagland that Moschini had never watched the videotape. Moschini testified that he watched the first part of the videotape but could not remember if Hoagland or Sergeant Lamb was present at that time. Lamb testified that he recalled viewing the tape with Hoagland and Moschini. Prosecutor Sutherland testified that Moschini said he “looked at all of [the tape].”
Because the officers were testifying about events that occurred over two and one-half years before, the trial court was entitled to conclude that the discrepancies were due to innocent misrecollection rather than falsehood. Indeed, as a matter of standard practice, jurors, acting as finders of fact, are instructed as follows on such inconsistencies in evidence: “Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently.” (See CALCRIM No. 226.)
Defendant claims the following cross-examination of Deputy Tener showed it was the policy of the sheriff’s department to record all conversations, including those protected by the attorney/client privilege: “Q. Okay. Do you remember me asking you, ‘what happened?’ And you told me -- and you answered my question and you said, ‘... it’s our policy up there. It’s my policy to tape-record’? [¶] A. Yes. [¶] Q. Do you remember saying that? [¶] A. I may have said that. That is a policy. [¶] Q. Right. And you were just following your policy that day, weren’t you, Mr. Tener? [¶] A. Correct. [¶] Q. And, frankly, you had no idea until Paul Sutherland called you on a later date that there may be something wrong with recording that conversation because it was an unusual event; is that a fair statement? [¶] A. That’s fair, yes. [¶] Q. Because, generally, you guys record anybody that comes up there. That’s part of your job description. [¶] A. Correct.”
However, defendant does not mention the following other testimony by Deputy Tener: It was “common practice to throw a tape in to record the interview, the conversations, so that, one, I don’t miss anything and, two, I don’t have to take notes and I can give my attention to the people that I’m speaking with.” In the interview room, when Tener heard defendant say he killed Ortega, Tener was surprised, believed he was now in over his head, and left to call the detectives in Placerville. When Tener was asked whether he remembered that the videotape was still running, he replied: “No, I did not. That was the furthest thing from my mind at that point.” When Tener was asked whether he intended to record a “confidential attorney-client communication” between Routsis and defendant, Tener replied, “No.”
Considered in its entirety, the trial court reasonably could understand Tener to have testified that the sheriff’s policy was to record the conversations of interviews between law enforcement and the persons being interviewed, not conversations between suspects and their counsel, and that the recording of defendant’s conversation with his counsel was inadvertent.
In sum, substantial evidence supports the trial court’s finding that the recording of defendant’s privileged communication with his attorney was unintentional and, thus, no outrageous conduct had been shown. Accordingly, the court did not err in denying defendant’s motion to dismiss the case.
DISPOSITION
The judgment is affirmed.
We concur: RAYE, J., HULL, J.