A eavesdropping conviction of former Tehachapi resident James Clinton “Clint” Davies was overturned by a Fresno appeals court on Feb. 8.
Davies was found guilty on January 10, 2020 and later appealed the conviction.
He was living in Tehachapi on May 7, 2019, when he requested a meeting with Police Chief Kent Kroeger and recorded his conversation with the chief, unbeknownst to Kroeger, later posting it on Facebook.
Davies was arrested by Tehachapi police and in January 2020 a Kern County jury found him guilty of one count of eavesdropping for this recording, specifically a violation of Penal Code 632. He was sentenced to three years of conditional supervision from a county jail. 76 day term with 76 day service time credit.
The case went to court on January 27. Three judges from the Fifth Appellate District of the State Court of Appeals heard arguments — Herbert I. Levy, Charles S. Poochigian and Kathleen A. Meehan.
Levy and Meehan signed the rescission order and Poochigian agreed but with reservations stated in his opinion.
In a statement after the reversal was announced, Davies said the opinion was “an affirmation of the public’s right to hold our local and state governments to account.”
Davies’ attorney, Charles M. Bonneau Jr., of Sacramento, argued that his client was invited into the police chief’s office to voice his complaint about the failure to investigate an assault.
“This was not a confidential communication actionable under Penal Code 632,” Bonneau wrote in his brief, adding that the caller was denied his First Amendment rights.
The justices did not address First Amendment issues, instead focusing on jury instructions.
“The prosecutor never specified that the appellant’s knowledge of confidentiality was something the government was required to prove beyond a reasonable doubt. Instead, the prosecutor argued that the government had proven that the caller knew he was recording,” Levy and Meehan wrote.
Although Poochigian agreed with the majority view that the trial court’s direction did not convey the statutory requirement, he wrote that “there was substantial evidence that defendant (Davies) himself even intended to record a confidential communication”.
An amendment to PC 148 enacted in 2015 offers some protection to people photographing or recording police in public places – while PC 632 aims to protect people who have a reasonable expectation of privacy.
“The fact that a person takes a photograph or makes an audio or video recording of a public officer or a peace officer, while the officer is in a public place or the person taking the photograph or who makes the recording is in a place that it is entitled to be, does not, in itself, constitute a violation” of state law, “nor does it constitute a reasonable suspicion of detaining the person or probable cause to arrest the person,” says PC 148.
According to the appeals court ruling, the police chief and a lieutenant present in the chief’s office treated the conversation as confidential, but Davies disagreed, saying the area appeared ‘wide open’ and said he “never thought about it”.
“Without transparency, the American experiment in democracy will fail,” Davies said in response to the ruling. “I urge the State Legislature to amend Penal Code 632 to conform to the right to record law. The essence of a right is that you don’t need permission from the government to exercise it. I have never doubted that our courts would reject this abuse of process and I will continue to be vigilant, defiantly, in demanding transparency and accountability from our government officials.”
Davies’ attorney filed a request for a rehearing on February 8, after the release of the annulment decision.
“The motion for rehearing concerns some minor details of the opinion,” he said in an email. “It will not affect the outcome or finality of the decision, which is expected to come on April 9. After that date, the prosecution will have 60 days to bring him back to trial, if they wish. If they do nothing, the inversion will remain in place.
Assistant District Attorney Joseph A. Kinzel also responded by email to a request for comment.
“When the remission is issued in 60 days, the case will be returned to Kern County in the same position as before trial,” he said. “The issue on appeal concerned the court’s instructions to the jury, not the sufficiency of the evidence presented at trial. The Court of Appeal has now made clear its expectations for how trial courts should instruct a jury in this and other similar cases in the future.
Kinzel said efforts to resolve the case will be made in conjunction with any other ongoing cases for the accused, and if a resolution cannot be reached, a subsequent trial may be required.
Kern County Superior Court records show Davies has been involved in seven other cases since June 11, 2018. Among those, he was acquitted of vandalism and disorderly conduct charges on January 27, 2020, and the charges were dropped in cases related to arrests for vandalism on October 15, 2019 and disturbances at a meeting on June 17, 2019.
Several charges, including assault, following an incident on August 25, 2019, were also dismissed.
Davies is scheduled to appear for a pre-trial on March 4 due to impaired driving arrests on June 10, 2019 and October 21, 2019, as well as a vandalism (under $400) charge filed on August 25. 2020.
Claudia Elliott is a freelance journalist and former editor of Tehachapi News. She lives in Tehachapi and can be contacted by email: firstname.lastname@example.org.