People v. Marcus

Opinion

ALLPORT, J.

— Following a trial by jury defendant was convicted of extortion (Pen. Code, § 518), receiving stolen property (Pen. Code, § 496), and an attempt to violate Penal Code section 475 (Pen. Code, § 663). Proceedings were suspended and he was placed on probation for four years upon condition that the first 270 days be spent in the county jail

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and that all laws be obeyed. Defendant appeals from the judgment contending that the trial court committed prejudicial error in admitting into evidence a rerecording of a prerecorded conversation between defendant and the People’s witness Kathleen Daniel.

During trial it was determined by the court out of the jury’s presence that the original tape recording (People’s exh. 2 for identification) was inaudible. Mrs. Daniel testified she recorded a conversation between herself and defendant. After listening to the original out of the jury’s presence she testified as follows:

“Now, Mrs. Daniel, you just heard here in court the tape which has been marked People's 2 for identification played, is that correct? The Wetness: Yes. The Court: Let me ask you, were you able to understand what the tape said? The: Witness: Most of it; not some of the first part of it. The Court: Had you ever heard the tape before today? The Witness: No. The Court: Any questions from any counsel? Mr. Polakovic: Is this for the purpose of laying a foundation, your Honor? The Court: Right. Mr. Polakovic: Excuse me. Do you have any questions?

“Redirect Examination (Resumed)

“By MR- Becker: Q. Is this a tape of the conversation you had with the defendant on the 4th of October which you made? A. Yes. Mr. Becker: Nothing further. The Court: Is it a fair and accurate representation of the conversation to the best of your knowledge to tell? The Witness: Yes.”

John M. Back, an investigator from the district attorney’s office, then testified that he made an accurate, audible, unedited copy of People’s exhibit 2 by running it through a filter. Defendant objected to an attempt to introduce the rerecording on the ground that, “The original is here and available, and the People are seeking to introduce a copy thereof ... in violation of [the best evidence] rule.” The objection was overruled. Mrs. Daniel was then recalled and testified as follows: “Q. Mrs. Daniel, you have listened to the tape that is now on the tape recorder, have you not? A. Yes. Q. Is that a tape of the conversation you had with the defendant which you tape recorded? A. Yes.” Both tapes were received in evidence. The original was marked as People’s exhibit 2 and the rerecording People’s exhibit 3. People’s exhibit 3 was played to the jury. There was no error in admitting the rerecording in evidence.