P. v. DaSilva CA4/1

Filed 3/6/13 P. v. DaSilva CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D061233
Plaintiff and Respondent,
v. (Super. Ct. No. JCF25800)
MICHAEL DaSILVA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County, Christopher
W. Yeager, Judge. Affirmed.
Michael DaSilva appeals his conviction of conspiracy to bring drugs into a state
prison (Pen. Code,1 § 182, subd. (a)(1); Health & Saf. Code, § 11350, subd. (h)) and his
restitution fine (§§ 1202.4(b); 1202.45). He contends the trial court violated his
constitutional and administrative rights when it denied his motion to suppress the
1 All further statutory references are to the Penal Code unless otherwise inidicated.
contents of a letter marked "legal mail" and that a $240 restitution fine violated the
constitutional prohibition against ex post facto laws. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
Correctional Officer Samuel Sandoval is part of the Centinela prison's
Investigative Service Unit (ISU) and is trained on the prison's Inmate Monitoring
Automated Recording System (IMARS) and in drug and narcotics recognition. On
August 2, 2007, Officer Sandoval was randomly scanning IMARS telephone
conversations. He heard a conversation between DaSilva and his wife Shaw Marie
DaSilva.
Officer Sandoval testified he heard DaSilva asking his wife: "if [she] got the
stuff?" DaSilva's wife replied, "I'm waiting on Bobby's stuff, but I'm actually ironing."
They also discussed whether to send the "stuff" in one package or two. According to
Officer Sandoval, "ironing" is a way to conceal heroin within the mail and "stuff" is
generally a "common word used by inmates to identify a narcotic or certain illegal
item[s]."
Officer Sandoval deduced from the conversation that DaSilva and his wife were
conspiring to introduce a controlled substance into the prison. Officer Sandoval
contacted the prison mailroom and asked the mailroom to notify ISU if any mail
addressed to DaSilva arrived.
2 We view the evidence in the light most favorable to the judgment. (People v.
Gaut (2002) 95 Cal.App.4th 1425, 1427.) Certain portions of the factual and procedural
history are discussed post.
2
On August 3, 2007, two U.S. mail envelopes arrived for DaSilva labeled "legal
mail" and ISU was duly notified. Another ISU Officer, Dana Mortimer, intercepted the
mail on behalf of Officer Sandoval. When Officer Mortimer arrived at the mailroom, he
received the envelopes and was told they looked a "little strange on the x-ray." Officer
Mortimer also x-rayed the envelopes and found there were "several large black blots on
the screen." Unlike normal papers that are transparent under the x-ray, these envelopes
had "different shapes in the packet."
Both envelopes bore a return address of "Callahan & Associates," with a
San Diego street address. However, Officer Mortimer could not find that address on a
list of California attorneys maintained by the prison mailroom. Officer Mortimer found
there were two Callahan & Associates in San Diego; however, neither firm's address
matched the street address which appeared on the envelopes addressed to DaSilva.
Officer Mortimer then delivered the unopened envelopes to Officer Jesus Diaz who was
in charge of delivering legal mail to inmates.
Under California Department of Corrections and Rehabilitation (CDCR)
regulations legal mail is opened by a correctional officer in front of the inmate whose
name appears on the address. Officer Diaz had been alerted that DaSilva's "legal mail
was going to be containing some controlled substances . . . ." Officer Diaz logged the
envelopes, then paged DaSilva and directed him to report to the program office. Upon
arrival, DaSilva showed proof of identification and signed for his mail. Officer Diaz
placed DaSilva in handcuffs and moved him to a holding cell. Officer Diaz then opened
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the two envelopes in front of DaSilva. Officer Diaz testified that when he opened the
envelopes he saw "two sheets of paper . . . glued together." However, Officer Diaz did
not have the equipment to separate the paper; therefore, he could not determine why they
were stuck together.
Officer Sandoval received the envelopes from Officer Diaz, and removed the
papers from the envelopes to find "bogus paperwork . . . [containing] . . . old police
reports, just random copies of papers . . . ." Officer Sandoval separated the "glued"
papers and found a "black sticky substance between [the] two sheets of paper." The
substance tested positive for heroin.
DaSilva was indicted for conspiracy to bring drugs into a state prison (§§ 182,
subd. (a)(1), 4573), and for possession of an illegal substance in a prison facility
(§ 4573.6). The indictment alleged DaSilva committed the offenses while confined in a
state prison (§ 1170.1, subd. (c)) and DaSilva had four prior strike convictions.
DaSilva filed a motion to suppress evidence under section 1538.5 and following a
hearing, the trial court denied the motion. In particular the court found that, even though
the correctional officers treated the envelopes as legal mail and opened them in DaSilva's
presence, the envelopes in fact were not legal mail and were subject to inspection outside
of DaSilva's presence. In determining that the envelopes could be treated like any other
inmate mail, the court noted that the correctional officers were aware DaSilva's wife
3 There was some confusion in the record about whether the envelopes were opened
in front of DaSilva. The trial court found the confusion arose from taking the grand jury
testimony out of proper sequence rather than inconsistent statements.
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might be sending him contraband, the x-ray scan revealed something irregular in the
contents of the envelopes and the return address on the envelope did not match the list of
attorneys maintained by the prison.
Pursuant to People v. West (1970) 3 Cal.3d 595, DaSilva then agreed to plead
guilty to a single amended count of conspiracy to commit possession of a controlled
substance (§ 182, subd. (a); Health & Saf. Code, § 11350, subd. (h)) with an admitted
prior strike conviction for robbery. The court sentenced DaSilva to a lower term of 16
months in prison with an additional 16 months to be served consecutively because of the
prior strike conviction. The court also imposed a $240 restitution fine for the crime
committed (§ 1202.4(b)) and an additional, suspended $240 parole revocation restitution
fine. (§ 1202.45.)
DISCUSSION
I
DaSilva contends the trial court erred in denying his motion to suppress. He
asserts that in opening the envelopes, prison officials violated constitutional, statutory
and administrative limitations on his powers. We find no error.
Primarily we rely on the fact that there is nothing in the record which suggests the
envelopes inspected by the correctional officers contained any confidential attorney-
client communications. Rather the unambiguous record shows the envelopes, although
labeled legal mail, were in fact solely a means of introducing contraband into the prison.
Given these circumstances, in opening the envelopes the correctional officers did not in
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any manner intrude on DaSilva's Sixth Amendment right to counsel or on any cognizable
right to privacy that arose during his incarceration.
Moreover, there is nothing in this record to support DaSilva's contention that any
of his statutory or administrative rights were infringed.
A. Standard of Review
In a proceeding to suppress evidence under section 1538.5, the trial court is vested
with the power to judge the credibility of witnesses, resolve conflicts in testimony, weigh
evidence and draw inferences of fact. (People v. Lawler (1973) 9 Cal.3d 156, 160.) "In
reviewing the denial of a motion to suppress, an appellate court defers to the trial courts
express or implied findings of fact that are supported by substantial evidence . . . ."
(People v. Middleton (2005) 131 Cal.App.4th 732, 737.) Under the substantial evidence
standard, we examine the entire record in the light most favorable to the trial court
decision and draw all reasonable inferences in support of that decision. (Bickel v. City of
Piedmont (1997) 16 Cal.4th 1040, 1053.) We neither evaluate the credibility of witnesses
nor reweigh the evidence. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631-
632.) However, the issue of whether a search or seizure was reasonable under the facts
found is a question of law for which the appellate court must exercise its independent
judgment. (People v. Loewen (1983) 35 Cal.3d 117, 123.)
B. Prisoner Privacy
Prisoners have no constitutionally protected expectation of privacy while they are
incarcerated and thus no expectation that their mail will not be opened and inspected by
prison officials. (See People v. Harris (2000) 83 Cal.App.4th 371, 376; People v. Burns
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(1987) 196 Cal.App.3d 1440, 1454; see also Hudson v. Palmer (1984) 468 U.S. 517, 522
(Hudson.) "A prisoner's theoretical expectation of privacy simply yields to the
institutional security of the prison." (People v. Harris, supra, at p. 376.) "[C]entral to all
other corrections goals is the institutional consideration of internal security within the
corrections facilities themselves." (Pell v. Procunier (1974) 417 U.S. 817, 823.)
In Hudson4 an inmate argued a random " 'shakedown' " search of his prison cell
for contraband was a violation of his constitutional right to privacy under the Fourth
Amendment. (Hudson, supra, 468 U.S. at p. 519.) In finding no such right to privacy the
court stated "[p]risons, by definition, are places of involuntary confinement of persons
who have a demonstrated proclivity for anti-social criminal, and often violent, conduct."
(Id. at p. 526.) The court concluded that "[a] right of privacy in traditional Fourth
Amendment terms is fundamentally incompatible with the close and continual
surveillance of inmates and their cells required to ensure institutional security and
internal order. We are satisfied that society would insist that the prisoner's expectation of
privacy always yield to what must be considered the paramount interest in institutional
security." (Id. at pp. 527-528, fn. omitted.)
4 DaSilva relies on a pre-Hudson case, United States v. Savage (9th Cir. 1973) 482
F.2d 1371, 1373, in which the court found photocopying and reading an inmate's letter
was a violation of the inmate's Fourth Amendment rights. In light of Hudson, United
States v. Savage is no longer persuasive authority with respect to a prisoner's right to
privacy.
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C. Legal Mail
Although a prisoner has no general right to privacy, there are statutory and
administrative limitations on the power of prison personnel to inspect a prisoner's
confidential communications with his or her attorney. (See § 2601, subd. (b); In re
Jordan (1972) 7 Cal.3d 930, 938-939 (Jordan I); In re Jordan (1974) 12 Cal.3d 575, 579
(Jordan II).) In particular section 2601, subdivision (b), which permits inspection of
incoming mail to search for contraband, also expressly provides a prisoner with the right
to "correspond, confidentially, with any member of the State Bar or hold of public
office . . . ."
In Jordan I, an inmate challenged a prison regulation which prohibited
confidential correspondence between an inmate and his attorney. Our Supreme Court
held that the regulation was inconsistent with the right to confidential correspondence
provided by former section 2600, subdivision (2), the predecessor to section 2601,
subdivision (b), and was therefore invalid. (Jordan I, supra, 7 Cal.3d at p. 939, fn. 4.)
The court suggested that the prison could insist that letters from attorneys be opened in
the presence of prison guards to assure that they do not contain contraband, but that they
could not ban all such correspondence. (Id. at pp. 938-939.) The court further suggested
that prison officials could assure themselves that correspondence was to or from counsel
by checking the purported lawyers' names against a list provided by the State Bar. (Id. at
p. 939.)
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In Jordan II, the same inmate challenged a regulation which permitted prison
officials to read any printed material contained in otherwise confidential attorney
communications. The Supreme Court rejected the regulation as potentially intruding on
the attorney-client privilege and serving no institutional interest. (Jordan II, supra, 12
Cal.3d. at p. 580.) The court reiterated its earlier determination that there was only a
"remote and wholly speculative danger that an attorney, sworn to obey the laws of this
state, would assist a prisoner in avoiding legitimate prison regulations [citation] or
conspire in plots that threaten prison security." (Id. at p. 579.)
Consistent with Jordan I and Jordan II, the state prisons adopted regulations
which attempt to protect the confidentiality of attorney-client communications and at the
same time safeguard valid institutional security interests. California Code of Regulations
Title 15,5 section 3141 (c)(6), expressly permits inmates to have confidential
communications with attorneys.
Section 3143 of the regulations in turn prescribes the procedure for processing
incoming confidential mail and states:
"Incoming letters must show the name, title, return address and the office of
persons listed in Section 3141 on the outside of the envelope to be processed as
confidential correspondence. An attorney's return address must match the address listed
with the State Bar. A notice or request for confidentiality is not required on the envelope.
Correspondence that is appropriately addressed with a return address that indicates it may
5 All further administrative references are to title 15 of the California Code of
Regulations unless otherwise specified.
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be confidential shall be processed and treated as confidential correspondence whether or
not it is stamped as such.
"(a) Designated staff shall open the letter in the presence of the addressed inmate
at a designated time and place. Staff shall not read any of the enclosed material. Staff
shall remove the pages and shake them to ensure the absence of prohibited material.
"(b) Inmates shall sign for all confidential mail at the time of delivery. This shall
be accomplished by use of a permanent logbook or use of receipts. If receipts are used,
the receipts shall be forwarded to the mailroom for filing. The log book at a minimum
must record the date of delivery, the inmates name and departmental identification
number, and the senders name and address." (Cal. Code Regs., tit. 15, § 3143.)
D. Analysis
Because as a prisoner DaSilva had no expectation of privacy, he cannot assert he
was the victim of any unreasonable search or seizure within the meaning of the Fourth
Amendment. (See Hudson, supra, 468 U.S. at pp. 527-528; People v. Harris, supra, 83
Cal.App.4th at p. 376; People v. Burns, supra, 196 Cal.App.3d at p. 1454.) Because the
envelopes did not contain any confidential attorney-client communications, in opening
the envelopes prison officials did not intrude in any manner on DaSilva's Sixth
Amendment right to counsel. Thus, DaSilva has no colorable claim his constitutional
rights were invaded when the envelopes were opened and their contents discovered.
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The fact that the envelopes did not contain any attorney-client confidential
communications of course also forecloses any claim the prison infringed on the statutory
right to such communications provided by section 2601, subdivision (b) and Evidence
Code section 954.
This leaves us with DaSilva's contention that correctional officers who opened his
mail failed to observe the requirements of sections 3141 and 3143 of the prison
regulations. The difficulty here is two-fold: first, a simple breach of DaSilva's rights
under the prison's regulations, standing alone, will not support any suppression of
evidence. (See Cal. Const., art. 1, § 28; People v. Poe (1983) 145 Cal.App.3d 574, 580.)
Second, the record shows that, in any event, no breach of the regulations occurred.
Section 3143 of the regulations requires that an attorney's address on an incoming piece
of mail match the attorney's address as it is listed by the state bar. The trial court
properly found envelopes addressed to DaSilva did not meet this requirement. Although
on appeal DaSilva notes that Officer Mortimer was unable to confirm that the prison's list
was provided by the State Bar, the trial court could rely on the presumption that official
duties have been regularly performed and that the prison therefore relied on a State Bar
list of attorneys. (Evid. Code, § 664). We note that for his part, DaSilva made no
attempt to show the address, which appeared on the envelopes for Callahan & Associates,
matched the firm's address as listed by the bar. The relative ease with which this might
have been accomplished in the trial court is telling, but not at all surprising in light of the
fact that heroin was in fact discovered in the envelopes. As the court in Jordan II noted,
it is very unlikely that an attorney would send contraband to an inmate. Because the
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envelopes did not meet the requirements of the prison's regulations, the prison officials
were not required to treat them as legal mail.
In sum, the record shows that in opening the envelopes the prison did not infringe
on any of DaSilva's constitutional, statutory or administrative rights. Thus the trial court
did not err in denying DaSilva's motion to suppress.
II
DaSilva also contends the court violated the ex post facto provisions of the federal
constitution when it imposed a $240 restitution fine under section 1202.4, subdivision
(b).
In 2007 when DaSilva committed the offense, section 1202.4, subdivision (b)(1)
stated, "[t]he restitution fine shall be set at the discretion of the court and commensurate
with the seriousness of the offense, but shall not be less than two hundred dollars and not
more than ten thousand dollars." Section 1202.4, subdivision (b)(1), as amended in 2011
and effective January 1, 2012, provides for a minimum $240 fine.
DaSilva claims the court erred because it imposed a $240 fine instead of the $200
statutory minimum that was applicable in 2007. DaSilva believes the trial court intended
to impose the statutory minimum and therefore erroneously imposed the minimum
applicable in 2012, rather than the minimum which governed crimes committed before
then. DaSilva relies on the fact that the sentencing documents prepared in December
2011 imposed a $200 fine which, by handwritten amendment, was increased to $240 at or
near the time sentence was imposed in January 2012. We are not persuaded by DaSilva's
argument.
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The court is presumed to have followed the correct law, even if it did not explicitly
state the law it was applying. (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 Cal.3d
554, 562.) An appellant has the burden of affirmatively showing error. The sentencing
court in this case made no reference to applying the statutory minimum for the restitution
fine. As the Attorney General notes, the trial court may have decided, as a matter of
discretion, that in this case it was appropriate to raise DaSilva's fine to at least the
minimum level imposed on other offenders. The trial court plainly had the discretion to
do so without offending the constitutional limitation on ex post facto laws.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McINTYRE, J.
AARON, J.
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