“Wiretap evidence is subject to the normal rule that a party seeking exclusion must object or move to suppress in the trial court, or claims of inadmissibility will be deemed forfeited on appeal.” In this trial for attempted murder and conspiracy to commit murder, the jury heard wiretapped conversations which implicated appellants. They argued on appeal, inter alia, that the evidence was inadmissible absent a judicial finding of lawfulness, and evidence the recordings were properly sealed. Since these reasons were not raised at the motion to suppress, the court found the claims forfeited. The court rejected appellants’ claim that a defendant has no obligation to move to suppress on these grounds because the proponent of wiretap evidence must show it is admissible, and because the trial court has a sua sponte duty to review the legality of the wiretaps. While the proponent of the evidence should be prepared to defend its propriety, in the absence of an objection, the evidence will be admitted. In this respect, “Penal Code section 1538.5 does not treat wiretap evidence differently from other potential evidence subject to exclusion.”
The corpus delicti rule does not apply to uncharged acts, except those used in the penalty phase of a capital case. Appellants argued some of the statements made on the tapes should have been excluded under the corpus delicti rule because they described acts at least arguably criminal. The court acknowledged that some of the case law arguably supports the notion that uncharged acts are subject to the corpus delicti rule, and that the California Supreme Court has not resolved the question. But, it noted that the authorities which lend support to the argument do not actually hold the corpus delicti rule applies uncharged acts evidence. It also noted that many out of state authorities have held the rule does not apply to uncharged acts. As in People v. Denis (1990) 224 Cal.App.3d 563, the court decided it was unwilling to expand the application of the corpus delicti rule to uncharged acts.