Loyd

In this case we consider whether secretly monitoring and recording an inmate’s unprivileged jail conversations with her visitors, solely for the purpose of gathering evidence, constituted prosecutorial misconduct by violating De Lancie v. Superior Court (1982) 31 Cal.3d 865 [ 183 Cal.Rptr. 866 , 647 P.2d 142 ] (De Lancie). Because we decide De Lancie had been superseded by statute at the time of the taping, we find the prosecutor’s request for and use of the tape did not constitute misconduct under state law.

I. Factual and Procedural Background

Christine Loyd was convicted by jury of two counts of first degree murder (Pen. Code, § 187) 1 and one count of arson (§451, subd. (c)), and was sentenced to prison for a term of 55 years to life.

Before her trial began, defendant sought a ruling on the legality of the taping of defendant’s personal visits and telephone calls. 2 After the prosecution noted defendant’s motion failed to request a remedy, defendant formally moved for dismissal of the charges or recusal of the prosecutor. Defendant *1000 alleged the prosecutor violated the rule of De Lancie, supra, 31 Cal.3d 865 , which bars monitoring of inmate conversations…

I agree with the majority that the monitoring and recording of defendant’s personal visits did not violate California law, despite our decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865 [ 183 Cal.Rptr. 866 , 647 P.2d 142 ] (De Lancie). In my view, however, this is true not because the holding of De Lancie has been abrogated by intervening amendments to Penal Code section 2600, 1 but because De Lancie was erroneously decided.

In De Lancie , this court assumed that an incarcerated person had a reasonable expectation of privacy in his or her conversations, creating a privacy right upon which jail officials could, under section 2600, infringe *1012 only as necessary for institutional security. (De Lancie, supra, 31 Cal.3d at pp. 873-876.) Our error, as the dissenting justices explained, was in assuming that either the common law or constitutional right to conversational privacy persisted when a person entered prison or jail and became subject to the pervasive official surveillance that traditionally characterizes those environments. (See id. at p. 881 (dis. opn. of Richardson, J.) [“ ‘ “A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a…

I agree with the majority that our decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865 [ 183 Cal.Rptr. 866 , 647 P.2d 142 ] (De Lancie) was superseded by the 1994 amendment to Penal Code section 2600 such that, subject to Penal Code section 636, 1 “California law now permits law enforcement officers to monitor and record unprivileged communications between inmates and their visitors to gather evidence of crime.” (Maj. opn., ante, at p. 1010.) In this case, however, the Alameda County prosecutor, without a warrant, asked the Santa Rita jail authorities to monitor and record defendant’s in-house jail conversations and her outbound telephone calls. I write separately to underscore that federal law, specifically, title III of federal Omnibus Crime Control and Safe Streets Act of 1968 ( 18 U.S.C. §§ 2510-2520 ) (the Act), still restricts the warrantless monitoring 2 of an inmate’s outbound telephone calls.

I

In People v. Otto (1992) 2 Cal.4th 1088 [ 9 Cal.Rptr.2d 596 , 831 P.2d 1178 ], we recognized that the Act governs wiretapping violations in California. We stated: “ ‘The purpose of the [Act] . . . was effectively to prohibit . . . all interceptions of oral and wire…