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Ineffective Assistance for Not Attempting to Exclude the Recorded Conversation

Defendant contends his trial counsel rendered ineffective assistance by not moving to exclude the recorded conversation between defendant and the victim’s father, Vasily Dovgan, as an unlawful eavesdropping under section 632. We disagree, as such a motion was without merit. Section 633.5 provides an exception that would defeat a motion under section 632 in this instance.

A. Background

Vasily met with defendant approximately five months after the shooting. He recorded their conversation using a recorder placed in his pocket. Before trial, defense counsel and the prosecution agreed not to call Vasily as a witness, and they stipulated instead to present the conversation’s transcript and recording to the jury. Defendant claims his attorney violated constitutional standards of performance by not moving to exclude the evidence at trial.

B. Analysis

To demonstrate ineffective assistance of counsel, a defendant must show both that counsel’s performance was deficient and the deficient performance prejudiced the defense. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) Because of the difficulties inherent in evaluating counsel’s performance, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation.]” (Id. at p. 689.)

Counsel’s performance here was not deficient. A motion to exclude the conversation as an unlawful eavesdropping under section 632 would fail due to the exception contained in section 633.5. Section 632 prohibits a person from intentionally recording a confidential communication by an electronic recording device without the consent of all parties. (§ 632, subd. (a).) Generally, no evidence obtained from such eavesdropping is admissible at trial. (§ 632, subd. (d).)

However, section 633.5 provides an exception to section 632’s prohibitions. According to section 633.5, “[n]othing in Section . . . 632 . . . prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of . . . any felony involving violence against the person . . . . Nothing in Section . . . 632 . . . renders any evidence so obtained inadmissible in a prosecution for . . . any felony involving violence against the person . . . or any crime in connection therewith.” (§ 633.5.)

Section 633.5 exempts Vasily’s recording of his conversation with defendant from section 632’s prohibitions, and would defeat any objection to admitting the recording. Vasily recorded the conversation to obtain evidence regarding defendant’s “felony involving violence against the person.” His recording the conversation was not prohibited, and the transcript of the recording was admissible. Thus, any attempt by defendant’s counsel to exclude the evidence would have been denied.

Defendant claims section 633.5 does not apply here because, as he reads it, the statute applies only when the “felony involving violence against the person” is a felony committed against the person who is recording the conversation. No felony was committed against Vasily, so, defendant contends, evidence of the conversation was not admissible.

Defendant’s interpretation of section 633.5 is not consistent with the statute’s language or the judicial precedent that interprets it. The statute applies to a “party to a confidential communication,” but its scope reaches to evidence of any felony involving violence against “the person.” The Legislature used the term “the person” to extend the statute’s scope beyond the communicating parties. A “person” is a “human being.” (Black’s Law Dict. (10th ed. 2014) p. 1324, col. 1.) Thus, for example, the phrases “crimes against the person” or “crimes against persons” refer to a “category of criminal offenses in which the perpetrator uses or threatens to use force” against a human being. (Id. at p. 454, col. 2.) The Legislature’s use of the term “the person” in section 633.5 confers the same effect on the statute. It applies to evidence of “any felony involving violence against the person,” or, in other words, violence against a human being.

Had the Legislature intended the statute to apply only to felonies committed against one of the parties to the communication, it would have limited its application to any felony involving violence against a “party to a confidential communication,” the same term it used to designate the persons having the communication. Instead, the Legislature used the phrase “violence against the person.” “It is a general rule of statutory construction that ‘[w]hen one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates the Legislature intended to convey a different meaning.’ [Citations.]” (Klein v. United States (2010) 50 Cal.4th 68, 80.) The term “person” in section 633.5 means something different than “party to a confidential communication.”

Only two reported cases apply section 633.5 in fact situations similar to this case, and both apply the meaning of section 633.5 we apply here. People v. Maury (2003) 30 Cal.4th 342, concerned anonymous telephone calls made to, and recorded by, a public “hotline.” The defendant in a murder trial sought to suppress evidence of his recorded calls to the hotline. As part of addressing that claim, the Supreme Court stated the taped communications were lawful under section 633.5 because they concerned three murders the police suspected defendant committed. (Id. at p. 385.) The recordings were lawful even though the violence was not committed against the person who recorded the calls.

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