A felony eavesdropping conviction of former Tehachapi resident James Clinton “Clint” Davies was overturned by an appeals court in Fresno on Feb. 8.
Davies was found guilty on Jan. 10, 2020, and subsequently appealed the conviction.
He lived in Tehachapi on May 7, 2019, when he requested a meeting with Police Chief Kent Kroeger and recorded his conversation with the chief, without Kroeger’s knowledge, later posting it on Facebook.
Davies was arrested by Tehachapi police and in January 2020, a Kern County jury found him guilty of one felony count of eavesdropping for that recording, specifically a violation of Penal Code 632. He was sentenced to three years of probation supervision conditioned on a county jail term of 76 days, with credit for time served of 76 days.
The matter came before the appeals court on Jan. 27. Three justices from the Fifth Appellate District of the state Court of Appeal heard the arguments — Herbert I. Levy, Charles S. Poochigian and Kathleen A. Meehan.
Levy and Meehan signed the reversal order and Poochigian concurred but with reservations spelled out in his opinion.
In a statement following news of the reversal, Davies said the opinion was “an affirmation of the public’s right to hold our local and state governments accountable.”
Davies’ attorney, Charles M. Bonneau Jr., of Sacramento, argued that his client was invited into the police chief’s office in order to voice his complaint about the failure to investigate an assault.
“This did not involve a confidential communication subject to prosecution under Penal Code 632,” Bonneau wrote in his brief, adding that the appellant was denied his rights protected by the First Amendment.”
The justices did not take up the First Amendment issues, instead focusing on jury instructions.
“The prosecutor never made it clear that appellant’s knowledge of confidentiality was an element that the government was required to prove beyond a reasonable doubt. Instead, the prosecutor argued that the government had proven that appellant knew he was recording,” Levy and Meehan wrote.
Although Poochigian concurred with the majority opinion that the trial court’s instruction did not convey the requirement of the law, he wrote that “there was substantial evidence that defendant (Davies) himself intended to record a confidential communication.”
An amendment to PC 148 enacted in 2015 provides some protection for people who photograph or record police in public places — while PC 632 is intended 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 peace officer, while the officer is in a public place or the person taking the photograph or making the recording is in a place he or she has the right to be, does not constitute, in and of itself, a violation” of state law, “nor does it constitute reasonable suspicion to detain the person or probable cause to arrest the person," PC 148 states.
According to the appellate court decision, the police chief and a lieutenant present in the chief’s office considered the conversation confidential but Davies disagreed, saying the area seemed “wide open” and said he “never considered 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 be in line with the Right to Record Act. The very essence of a right is that you do not need permission from the government to exercise it. I never doubted that our courts would reject this abuse of process and I will to be continue to be vigilant, defiantly so, in demanding transparency and accountability from our government officials."
Davies’ attorney filed a rehearing petition on Feb. 8, following issuance of the reversal decision.
“The rehearing petition has to do with some minor details of the opinion,” he said in an email. “It will not affect the result or the finality of the decision, which should occur on April 9. After that date the prosecution will have 60 days to bring him back to trial, if they so choose. If they do nothing the reversal will remain in place.”
Assistant District Attorney Joseph A. Kinzel also responded by email to a request for comment.
“When the remittitur issues in 60 days, the case will be returned to Kern County in the same position as it was prior to the trial,” he said. “The issue on appeal involved the court’s instructions to the jury, not the sufficiency of the evidence presented in the trial. The Appellate Court has now made clear its expectations of how trial courts should instruct a jury on this type of case and others like it going forward.”
Kinzel said efforts to resolve the case will be made in conjunction with any other cases the defendant has pending, and if a resolution cannot be reached, a subsequent trial may be required.
Kern County Superior Court records show Davies involved in seven other cases since June 11, 2018. Of these, he was acquitted on charges of vandalism and disorderly conduct on Jan. 27, 2020, and charges were dropped in cases related to arrests for vandalism on Oct. 15, 2019, and disturbance at an assembly on June 17, 2019.
Multiple charges, including assault, from an incident on Aug. 25, 2019, were also dismissed.
Davies is set to appear for a pretrial conference on March 4 due to DUI arrests on June 10, 2019, and Oct. 21, 2019, as well as a charge of vandalism (less than $400) filed on Aug. 25, 2020.
Claudia Elliott is a freelance journalist and former editor of the Tehachapi News. She lives in Tehachapi and can be reached by email: email@example.com.