County of Los Angeles v. Los Angeles County Civil Service etc. ( 2018 )

Filed 4/18/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
COUNTY OF LOS ANGELES, B278519
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS156018)
v.
LOS ANGELES COUNTY CIVIL
SERVICE COMMISSION,
Defendant and Respondent;
CARLOS ARELLANO,
Real Party in Interest and
Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Mary H. Strobel, Judge. Affirmed.
Peterson•Bradford•Burkwitz, Avi Burkwitz, Craig
Marinho and Jessica Y. Lee for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
The Gibbons Firm and Elizabeth J. Gibbons for Real Party
in Interest and Respondent.
Based on phone calls legally intercepted by law
enforcement during a drug trafficking investigation, investigators
came to believe that Carlos Arellano (Arellano), then a detective
with the Los Angeles County Sheriff’s Department (Sheriff’s
Department), was associating with known narcotic felons, using
his law enforcement status to obtain inside information from the
department to provide to individuals involved in illegal narcotic
activity, and was himself involved in cultivating marijuana. As
the Sheriff’s Department expanded its criminal investigation to
include Arellano, it sought a court order releasing the wiretap
recordings, and transcripts from those recordings, to the Sheriff’s
Department for use against Arellano. The court’s order
permitted the district attorney to release the wiretap evidence to
the Sheriff’s Department and further authorized testimony
regarding the evidence pursuant to Penal Code section 629.78.1
Although the Sheriff’s Department closed its criminal
investigation without filing charges, the department later sought
to discharge Arellano from his position. During the civil service
commission hearing that followed, the Sheriff’s Department
attempted to use the intercepted calls during the administrative
proceeding. The hearing officer granted Arellano’s motion to
suppress the calls and ultimately recommended that the Arellano
only receive a five day suspension without pay. The civil service
commission adopted the recommendation. The County of Los
Angeles then filed a petition for writ of administrative
mandamus in superior court. The superior court denied the
petition. We affirm
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
BACKGROUND
I. The initial investigation
Arellano was hired by the Sheriff’s Department in 1989.
Arellano later joined the Sheriff’s Department Narcotics Unit and
was transferred to the Palmdale station as the filing detective on
loan. As part of this assignment, Arellano would check to see if
deputies had made any narcotics arrests, review the suspect’s
booking packets and files, and determine whether the suspect
might serve as a potential informant. Arellano would also
determine whether the suspect’s case should be sent to the
district attorney’s office for filing of criminal charges.
On February 23, 2009, the Sheriff’s Department Narcotics
Strike Team (NST) conducted a controlled purchase of cocaine
near the El Dorado restaurant in Palmdale under the belief that
the restaurant’s owners were involved in illegal conduct.
Arellano, assigned to NST at the time, was not aware of this
operation because he was still on loan to the Palmdale station.
After the controlled purchase was complete, Detective Angela
Riggs told her supervisor, Sergeant Phil Morris, that Arellano
was related to the owners of the El Dorado, Omar Monreal and
Francisco Monreal. Detective Riggs also said that Arellano had
thrown a party at the El Dorado to celebrate his transfer from
patrol to narcotics, despite departmental policies forbidding
fraternization with criminals. Although Arellano was not in fact
related to Omar Monreal or Francisco Monreal, Arellano did
know Omar Monreal. Arellano also knew Eric Monreal, another
Monreal brother, whom he had met at the El Dorado through
Omar Monreal.
In March 2009, the high intensity drug trafficking area
(HIDTA) task force began investigating Arellano to determine if
3
he was engaged in any criminal activity. Detective Mark
Montoya worked as the lead criminal investigator on the case. In
April 2009, HIDTA obtained several court-ordered state wiretaps,
issued by Judge Larry P. Fidler.2 Among the intercepted calls
were 26 calls between Omar Monreal and others discussing
illegal narcotics activity. Two of the calls were between Omar
Monreal and a caller identified as UM845 and UM9068. After
conducting voice comparisons of UM845, UM9068, and Arellano,
five Spanish linguists signed declarations opining that UM9068
and UM845 were Arellano.
On April 23, 2009, agents intercepted a call between Omar
Monreal and UM845 (Arellano) during which the two men
discussed marijuana plants, money, and the weight of the
product. During this conversation, Arellano told Omar that the
cloned plants he had purchased infested the other marijuana
plants with “spider mites.” Arellano asked Omar about money
and told him that he (Arellano) needed the money, “Hey, what’s
up with the money dude? I need the money, man!” After
discussing the weight of the product and a getting a certain room
“ready,” the conversation ended with Arellano telling Omar
several times “[d]on’t burn me man!” and that he would see Omar
the next day.
On June 9, 2009, several hours after law enforcement
searched Omar Monreal’s residence, agents intercepted a call
between UM9068 (Arellano) and Omar that appeared to disguise
the true nature of the call. The two discussed a traffic accident at
the intersection of “40th” and “Avenue L” although investigators
concluded no such accident had occurred at that location.
2 Arellano was not a target subject in these wiretaps.
4
Arellano told Omar, “Well, like I said, whatever you need, let me
know . . . on this thing . . . I could only tell you what I hear.”
Arellano also told Omar “[whatever you need] [or] you guys or
your mom, your dad, anybody, your brothers, . . . [call me].”
Arellano also told Omar, “they try to keep a lot of things hush
hush because . . . You know, they found out about me and then
they found out that [stutters] that a lot of Deputies would hang
out there.”
On June 11, 2009, agents intercepted a call between Omar
and Eric Monreal. Omar and Eric discussed the purported traffic
accident at the intersection of 40th and Avenue L. Omar told
Eric that law enforcement were called to the accident and said,
“Yeah, they went over there and I called Arellano and he called
them so they could chill on ’em.”
On June 16, 2009, agents intercepted a call between Omar
and Felipe Rios. Felipe asked Omar if Arellano had called back
yet, and Omar responded that he called Arellano three times
today, but Arellano had not called back. On June 17, 2009,
agents intercepted another call between Omar and Felipe Rios.
Omar said Arellano had advised him how to conceal the fact that
he (Omar) knew about an indoor marijuana grow and how to
disassociate himself from the grow location by showing that he
tried to evict tenants from the home before the law enforcement
raid. Omar said that Arellano advised him to post eviction
notices, “I just briefly spoke to him and he told me, ‘you know
what? Post the three (3) uh, the, the forty-eight (48)
hours . . . the notice and then we’ll go over there.’ ” Omar then
said, “So, I, I told him (Arellano) ‘cool, we’ll get it done.’ Right
now I’m about to print it out, give me about fifteen (15) minutes
and I’ll print it out and we’ll post it.”
5
II. The investigation into Arellano
On June 25, 2009, the Sheriff’s Department Internal
Criminal Investigations Bureau (ICIB) opened a criminal
investigation into Arellano. On November 30, 2009, while the
ICIB investigation proceeded, Detective Montoya and Deputy
District Attorney Jay Grobeson filed an application to Judge
Fidler for an order releasing wiretap recordings, and transcripts
of those recordings, to the Sheriff’s Department for use against
Arellano. The application sought “authorization to release
recordings and other materials (line sheets) for specific
calls . . . to the Los Angeles County Sheriff Department for use in
an internal investigation.” The application further stated that
the “evidence derived therefrom [the intercepted recordings] are
relevant to an internal investigation by the Los Angeles County
Sheriff Department.”
Detective Montoya’s declaration in support of the
application reiterated that the recordings were relevant to the
Sheriff’s Department internal investigation of Arellano: “The Los
Angeles County Sheriff Department is considering an internal
investigation into the actions of the deputy, and the recording(s)
during this period of interceptions covered by the referenced
Wiretaps is relevant to that investigation.” The declaration
further stated that “[i]n order to proceed administratively to
prevent any future public offense by Detective Carlos Arellano,
the Los Angeles Sheriff Department needs access to the specific
related intercepted calls.”
On December 1, 2009, Los Angeles Superior Court Judge
Larry P. Fidler signed an order authorizing the disclosure of
those records pursuant to the application. The order provided, in
relevant part: “The People have made application to this court
6
for an order pursuant to Penal Code Section 629.82. This court
has read and considered said application. [¶] IT IS HEREBY
ORDERED that the District Attorney for the County of Los
Angeles may release such information and documentation,
including, but not limited to: [¶] 1. Monitor Logs; . . . [¶]
2. Recordings of intercepted calls; . . . [and] [¶] 3. Evidence
derived from these Wiretaps . . . . [¶] The Court further
authorizes pursuant to Penal Code § 629.82(b), testimony of the
above items pursuant to Penal Code § 629.78.”
On July 6, 2010, Drug Enforcement Administration Special
Agent Virginia Waters and Detective Montoya concluded their
criminal investigation into Arellano. In August 2010, the ICIB
closed its investigation without filing criminal charges because
Arellano’s intercepted conversations solely involved marijuana
activity, which is not a prosecutable offense under California
wiretap authority. After the ICIB closed its investigation, the
matter was referred to the Sheriff’s Department Internal Affairs
Bureau (IAB) based on Arellano’s alleged violations of multiple
departmental policies. The IAB began its investigation in August
2010 and ended it a year later. As part of the IAB investigation,
the Sheriff’s Department had access to the wiretapped calls.
In addition to the conduct described above, the Sheriff’s
Department also determined that Arellano performed favors for
Eric Monreal and other individuals involved in illegal narcotics
activity. In August 2008, Eric Monreal was arrested for a felony
narcotics charge and placed on a probation hold, meaning he was
not to be released. Without obtaining supervisor approval and
despite the valid probation hold, Arellano released Eric from jail.
It was shortly after Eric’s release that Arellano held a party at
the El Dorado to celebrate his transfer to the narcotics bureau.
7
The Sheriff’s Department also determined that Arellano
associated with a federal fugitive named Abraham Angulo.
Angulo was Arellano’s brother-in law although Arellano did not
report the relationship to the Sheriff’s Department. In August
2008, Arellano asked a sergeant to determine if Angulo was
“wanted.” After Angulo’s status as a federal fugitive was
confirmed, Arellano refused to provide information to enable the
Sheriff’s Department to apprehend Angulo.
The Sheriff’s Department also found that Arellano engaged
in unauthorized use of the justice data interface system (JDIC).
JDIC is a departmental database that allows employees to search
for confidential information on suspects, criminals, and fugitives.
Deputies must be certified annually on the JDIC system and
have an individual password to log onto the system. Arellano
was trained and certified to use the JDIC system on August 20,
1998. He never got recertified, however, and had been dependent
upon support staff and other deputies to run his searches. On or
about June 8, 2009, Arellano used the password belonging to
Deputy Henry Corral to access the JDIC system and obtain
information regarding several individuals engaged in criminal
activity.
On August 8, 2011, the Sheriff’s Department issued its
notice of intent to discharge Arellano from his position of Deputy
Sheriff citing multiple departmental policy violations. On
August 24, 2011, the Sheriff’s Department issued its notice of
final discipline finding that Arellano violated the department’s
Manual of Policy and Procedures relating to general behavior,
prohibited association, fraternization, professional conduct,
obstruction of an investigation, and false statements. Arellano
8
was discharged from his position as Deputy Sheriff effective
August 29, 2011.
III. The administrative hearing
The Los Angeles County Civil Service Commission hearing
regarding Arellano’s discharge took place from September 2012 to
February 2014. During the hearing, Arellano filed a motion to
suppress the wiretapped calls. The Sheriff’s Department opposed
the motion. The hearing officer granted the motion after finding
that Judge Fidler’s December 1, 2009 order permitting the
wiretap evidence to be released did not expressly provide that the
evidence could be used for administrative purposes. Instead, the
hearing officer interpreted the order to authorize disclosure of the
wiretap evidence only in criminal court or grand jury proceedings
pursuant to section 629.78.
On September 11, 2013, the Sheriff’s Department filed an
ex parte application seeking an order clarifying or amending
Judge Fidler’s December 1, 2009 order. During the hearing,
Judge Fidler stated that although the order as prepared by the
district attorney could be considered ambiguous, “the application
clearly noted that they intended to use the results in an internal
affairs hearing against [Arellano].” Judge Fidler also stated that
his intent was “to allow [the wiretap evidence] to be used not just
in a trial, not just before a grand jury, but if they chose to proceed
against the officer or do anything they could use the materials.”
Judge Fidler further noted, “I would say this is a pretty simply,
cut and dry request. I guess I can understand where the hearing
officer, perhaps, had a problem. But if read in context, it is clear
the order requested that I do so. Unfortunately, the district
attorney referred to a section, a specific section that was
contained in the order that would have prevented it, but if it’s
9
read in its entirety—and my order says I have read and
considered the application—why would I sign it unless—if I was
planning on keeping something out, I would have stated it or
written over it by hand.” Indeed, Judge Fidler concluded, “So I
intended—my order intended that this material be used against
[Arellano] in his administrative hearing. I can’t state it any
clearer than that.” According to Judge Fidler, the only thing
preventing such use, “is a poorly drafted order from the district
attorney.” Judge Fidler declined to modify the actual order,
however, stating that he did not believe he was allowed do so.
Judge Fidler also noted that the Sheriff’s Department and
District Attorney could request an amendment of the order and
he would consider complying with such a request. The record
does not reflect any subsequent request to Judge Fidler to amend
the order, however.
The hearing officer upheld her decision to exclude the
wiretap evidence based on Judge Fidler’s decision not to amend
the order. “I want the record to be clear,” the hearing officer told
the parties. “At no time did I think I needed a clarification of the
intent of the court. I always believed and still believe that it was
the court’s intent to issue an order that would permit the use of
the wiretap evidence in an administrative proceeding.” However,
the hearing officer continued, she could not ignore “the letter of
the order because I understand [Judge Fidler’s] intent.” Absent a
modification of the order, the hearing officer determined she had
no authority to admit the wiretap evidence in the administrative
proceeding. The hearing officer declined to address whether
California wiretap law permitted disclosure or use of the
intercepted calls in an administrative proceeding, stating she was
10
“bound by the specific order of the court” and that the statutory
interpretation would be left for appeal.
Without the wiretap evidence, the Sheriff’s Department
was only able to introduce evidence of Arellano’s use of another
deputy’s credentials to access the JDIC system as well as his
unauthorized release of Eric Monreal from the probation hold. At
the conclusion of the hearing, the hearing officer ultimately found
that Arellano had only violated the Sheriff’s Department policy
prohibiting access to the JDIC system without certification. On
June 25, 2014, the hearing officer issued a written decision
recommending that the Sheriff’s Department decision to
terminate Arellano be reduced to a five-day suspension without
pay. On March 18, 2015, the civil service commission issued an
order adopting the hearing officer’s findings and recommendation
to reduce Arellano’s discharge to a five-day suspension.
On May 13, 2016, the County of Los Angeles (the County)
filed a petition for writ of administrative mandamus in superior
court. On July 14, 2016, the superior court denied the petition.
The superior court found that Judge Fidler’s order only
authorized the Sheriff’s Department to use the intercepted calls
in an internal investigation and not in an administrative law
proceeding as the latter would involve a more public disclosure.
The superior court further found that although the California
Wiretap Act allows for disclosure of the wiretap communications
without a court order, the wiretap evidence here did not meet the
standard for disclosure to prevent a public offense under
section 629.82, subdivision (b), because there was no evidence of
ongoing misconduct or the imminence of Arellano’s commission of
a public offense.
11
STANDARD OF REVIEW
Under Code of Civil Procedure section 1094.5, there are two
alternative standards of review that a trial court uses to review a
petition for writ of administrative mandamus. (JKH Enterprises,
Inc. v. Department of Industrial Relations (2006) 142 Cal. App. 4th
1046 (JKH Enterprises).) “If the administrative decision involved
or substantially affected a ‘fundamental vested right,’ the
superior court exercises its independent judgment upon the
evidence disclosed in a limited trial de novo in which the court
must examine the administrative record for errors of law and
exercise its independent judgment upon the evidence.” (Id. at
p. 1057.) “Where no fundamental vested right is involved, the
superior court’s review is limited to examining the administrative
record to determine whether the adjudicatory decision and its
findings are supported by substantial evidence in light of the
whole record.” (Ibid.)
In this case, the trial court did not explicitly state which
standard of review it was employing. However, regardless of the
standard of review that applied in the trial court, appellate courts
apply a substantial evidence standard. (JKH Enterprises, supra,
142 Cal.App.4th at p. 1058.) If the trial court exercised its
independent judgment because a fundamental vested right was
involved, we review whether substantial evidence supports the
trial court’s judgment. (Ibid.) If the trial court reviewed the
administrative decision for substantial evidence because no
fundamental vested right was involved, then our review is the
same as the trial court’s—we review the administrative record to
determine whether substantial evidence supports the agency’s
findings. (Ibid.) In that review, we resolve all conflicts in the
evidence and draw all inferences in support of the agency’s
12
findings. (Ibid.) However, we review de novo issues of law
related to the administrative decision, such as interpretation of
statutes and regulations. (Hoitt v. Department of Rehabilitation
(2012) 207 Cal. App. 4th 513, 522.)
RELEVANT PENAL CODE SECTIONS
Under section 629.74, “[t]he Attorney General, any deputy
attorney general, district attorney, or deputy district attorney, or
any peace officer who, by any means authorized by this chapter,
has obtained knowledge of the contents of any wire or electronic
communication, or evidence derived therefrom, may disclose the
contents to one of the individuals referred to in this section, to
any judge or magistrate in the state, and to any investigative or
law enforcement officer . . . to the extent that the disclosure is
permitted pursuant to Section 629.82 and is appropriate to the
proper performance of the official duties of the individual making
or receiving the disclosure.” However, “[n]o other disclosure,
except to a grand jury, of intercepted information is permitted
prior to a public court hearing by any person regardless of how
the person may have come into possession thereof.”
Under section 629.76, “[t]he Attorney General, any deputy
attorney general, district attorney, or deputy district attorney, or
any peace officer or federal law enforcement officer who, by any
means authorized by this chapter, has obtained knowledge of the
contents of any wire or electronic communication, or evidence
derived therefrom, may use the contents or evidence to the extent
the use is appropriate to the proper performance of his or her
official duties and is permitted pursuant to Section 629.82.”
Under section 629.78, “[a]ny person who has received, by
any means authorized by this chapter, any information
concerning a wire or electronic communication, or evidence
13
derived therefrom, intercepted in accordance with the provisions
of this chapter, may, pursuant to Section 629.82, disclose the
contents of that communication or derivative evidence while
giving testimony under oath or affirmation in any criminal court
proceeding or in any grand jury proceeding.”
Under section 629.82, subdivision (a), if a law enforcement
officer, while intercepting wire or electronic communications in
an authorized manner, intercepts wire or electronic
communications relating to crimes other than those specified in
the authorization order, but which are listed in section 629.52,
subdivision (a), or any violent felony as defined in section 667.5,
subdivision (c), then “(1) the contents thereof, and evidence
derived therefrom, may be disclosed or used as provided in
Sections 629.74 and 629.76 and (2) the contents and any evidence
derived therefrom may be used under Section 629.78 when
authorized by a judge if the judge finds . . . that the contents were
otherwise intercepted in accordance with the provisions of this
chapter.”
Under section 629.82, subdivision (b), if a law enforcement
officer, while intercepting wire or electronic communications in
an authorized manner, intercepts wire or electronic
communications relating to crimes other than those specified in
subdivision (a), then “the contents thereof, and evidence derived
therefrom, may not be disclosed or used as provided in
Sections 629.74 and 629.76, except to prevent the commission of a
public offense.”
DISCUSSION
We must resolve two issues in this appeal—Did
Judge Fidler’s December 1, 2009 order authorize the disclosure
and use of the wiretap evidence at Arellano’s administrative
14
hearing before the civil service commission? If not, could the
wiretap evidence be disclosed and used at the administrative
hearing without a court order? As discussed below, we answer
both questions in the negative.
Judge Fidler’s order was two-fold. The order first allowed
release of the wiretap evidence to the Sheriff’s Department for
use in an internal investigation. Next, the order authorized
testimony regarding the wiretap evidence pursuant to
section 629.78. However, section 629.78 allows for disclosure of
such evidence only while testifying in a criminal or grand jury
proceeding. Thus, nothing in Judge Fidler’s order expressly
authorized disclosure or use of the wiretap evidence in an
administrative hearing against Arellano.
The County argues that the Sheriff’s Department’s
application made it clear that the release of the wiretap evidence
was for use in an administrative proceeding such as a hearing
before the civil service commission. However, the first page of
the application requested release of the evidence “for use in an
internal investigation”—not an administrative proceeding. In its
accompanying points and authorities, the department argued
that disclosure of the evidence at an administrative hearing was
not precluded by section 629.78. But the attached declaration
again reiterated that the intercepted calls were relevant to the
department’s internal investigation of Arellano: “The Los
Angeles County Sheriff Department is considering an internal
investigation into the actions of the deputy, and the recording(s)
during this period of interceptions covered by the referenced
Wiretaps is relevant to that investigation.” The declaration also
stated that “[i]n order to proceed administratively to prevent any
future public offense” by Arellano, the department needed access
15
to the intercepted calls. The declaration further requested
authorization to release such evidence “as necessary to assist in
the administrative process” and “to prevent ongoing public
corruption.”
The declaration appeared to use the terms “release” and
“disclose” interchangeably, seeking release of the evidence to the
Sheriff’s Department as well as authorization to “release” or, in
this context, disclose, the evidence during the administrative
process. Nevertheless, even if the application and declaration
can be reasonably interpreted as communicating that the
Sheriff’s Department intended to use the intercepted calls in an
internal investigation and when proceeding administratively
against Arellano, the prepared order signed by Judge Fidler did
not authorize disclosure or use of the wiretap evidence in an
administrative proceeding. Instead, the order cited
sections 629.82, subdivision (b), and 629.78, neither of which
provides for disclosure or use of such evidence in an
administrative proceeding. In other words, although the order
permitted release of the intercepted calls to the Sheriff’s
Department, its cited statutory parameters limited disclosure of
and testimony about the calls to a criminal court or grand jury
proceeding pursuant to section 629.78. Therefore, the order did
not authorize disclosure or use of the wiretap evidence in any
other kind of proceeding, including an administrative hearing
before the civil service commission, which could involve more
public disclosure than an internal departmental investigation.3
3 Under Los Angeles Civil Service Commission rule 4.11,
“[a]ll meetings of the Commission shall be open to the
public . . . except as otherwise provided by rule or law.” However,
according to rule 4.05, “[t]he Commission may meet in Executive
16
According to the County, the term “release” as stated in the
order actually meant “release and use.” Thus, when Judge Fidler
released the wiretap evidence to the Sheriff’s Department, he
also allowed the department to subsequently use the evidence in
any proceeding identified in the application or declaration. The
County argues that because Judge Fidler “further” authorized
testimony regarding the evidence in a criminal court or grand
jury proceeding, he must have first authorized testimony in
another setting, i.e., an administrative hearing. Although
section 629.76 allows law enforcement to use wiretap evidence “to
the extent the use is appropriate to the proper performance of his
or her official duties and is permitted under [s]ection 629.82,”
Judge Fidler’s order plainly did not cite section 629.76. Instead,
the order relied on section 629.78, which allows law enforcement
to disclose wiretap evidence only when testifying in criminal
court or before a grand jury. Thus, we read the order just as it is
written—Judge Fidler released the wiretap evidence to the
Sheriff’s Department and also allowed the department to disclose
the evidence only in a criminal or grand jury proceeding.
Although Judge Fidler subsequently stated he intended to allow
the evidence to be used in an administrative proceeding as well,
the County cites no authority that would allow us to consider
anything other than the four corners of the order. Nor has the
County cited any authority holding that a judge’s intent may
expand the express limited scope of an operative statute. Thus,
we hold that the order did not authorize the disclosure or use of
Session to consider the . . . discipline, or dismissal of public
employees unless an employee or the employee’s representative
requests that the employee’s matter be considered only in public.”
17
the wiretap evidence at Arellano’s administrative hearing before
the civil service commission.
The County next contends that the order’s defects are
immaterial because the evidence could be disclosed or used at the
administrative hearing even without a court order. We disagree.
Even if the state statutes relied upon by the County do not
require that law enforcement obtain judicial authorization prior
to disclosure or use, the County cannot satisfy the conditions
imposed by the cited statutes.
In interpreting a state wiretap scheme, an appellate court
may look for guidance to cases under the federal wiretap act,
which “provides ‘a comprehensive scheme for the regulation of
wiretapping and electronic surveillance.’ ”4 (People v. Otto (1992)
2 Cal. 4th 1088, 1097.) The federal wiretap act sets minimum
standards for the admissibility of evidence procured through
electronic surveillance. “[S]tate law cannot be less protective of
privacy than the federal [wiretap] [a]ct.” (Id. at p. 1098.)
The County argues that although crimes involving the
cultivation or importation of marijuana are not specifically
covered under section 629.52, subdivision (a), of the wiretap
authorization statute,5 the intercepted calls relating to these
4 See title III of the Omnibus Crime Control and Safe
Streets Act of 1968, title 18 United States Code sections 2510 to
2520.
5 Specified offenses under section 629.52, subdivision (a),
include the importation, possession for sale, transportation,
manufacture, or sale of heroin, cocaine, PCP, or
methamphetamine, but do not include the cultivation or
importation of marijuana. Furthermore, although Arellano was
intercepted during the wiretap, the County does not contend he
was listed as a target subject in the wiretap application.
18
crimes may nevertheless be disclosed or used pursuant to
section 629.82, subdivision (b). Under section 629.82,
subdivision (b), if a law enforcement officer, while intercepting
wire or electronic communications in an authorized manner,
intercepts wire or electronic communications relating to a non-
specified offense, the evidence may not be disclosed or used (as
provided in sections 629.74 and 629.76) except to prevent the
commission of a public offense. In other words, the evidence may
be disclosed or used only if doing so would prevent the
commission of a public offense.6
A “public offense” is defined, in relevant part, as “an act
committed . . . in violation of a law,” which is punishable by
“[d]eath; [¶] [i]mprisonment; [¶] fine; [¶] [r]emoval from office;
or [¶] [d]isqualification to hold and enjoy any office of honor,
trust or profit in this state.” (§ 15.) Thus, the cultivation or
importation of marijuana would fall under this definition.
However, the Sheriff’s Department did not issue its notice of
intent to discharge Arellano until August 2011, at least two years
after he was intercepted discussing these offenses, and the
administrative hearing did not begin until September 2012.
Therefore, without additional evidence demonstrating Arellano’s
continued involvement in these crimes, it is difficult to see how
6 The trial court found that section 629.82 does not require
a court order. Conversely, the hearing officer believed that
section 629.82 did require judicial authorization. We need not
decide which view is correct given that the County failed to
satisfy the statute’s requirements. However, we note that
legislative action could resolve the critical issue raised by this
case; whether, as a matter of course, calls captured during a
lawful wiretap may be disclosed and used during a subsequent
civil service commission hearing.
19
disclosure or use of the wiretap evidence during the
administrative hearing could have prevented the commission of a
public offense.
This was a historical case, in which the intercepted calls
revealed Arellano’s past misconduct. By September 2012, fresh
evidence was needed to show that disclosure or use of the calls
would prevent a crime from occurring. The County highlights the
absence of evidence to make its point, arguing there was no
evidence that Arellano no longer associated with “known narcotic
felons” when the administrative hearing took place. Leaping
from this slim reed into thin air, the County then argues that
disclosure or use of the intercepted calls thus would have
prevented ongoing violations of obstructing a peace officer, being
an accessory after the fact to a crime (the cultivation of
marijuana) and conspiring to commit a crime. We are not
persuaded. Without evidence of a continued association, the
County could not, and, indeed did not, demonstrate that any
ongoing offenses could be prevented. Thus, section 629.82,
subdivision (b), cannot be construed to justify disclosure or use of
the intercepted calls at the administrative hearing.7
The County also argues that disclosure or use was allowed
pursuant to federal wiretap law. Again, we are not persuaded.
The most closely analogous federal statute, title 18 United States
Code section 2517, subdivisions (3) and (5), allows for disclosure
or use of intercepted information in any proceeding “held under
7 Although the parties further debate whether the wiretap
evidence could be disclosed under section 629.74, or used under
section 629.76, the discussion is unnecessary. Both statutes still
require compliance with section 629.82 and, as we have already
held, the County failed to do so in this case.
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the authority of the United States or of any State or political
subdivision thereof.” This language is far more expansive than
section 629.78, which limits such proceedings to testimony in
criminal court or before a grand jury. Although state law cannot
be less protective of privacy than the federal wiretap act, (People
v. Otto, supra, 2 Cal.4th at p. 1097; see People v. Roberts (2010)
184 Cal. App. 4th 1149, 1179–1180), this is precisely the result the
County seeks here. At issue in Roberts was California’s more
restrictive provision with respect to the timing and content of
reports submitted during a wiretap. At issue here is California’s
more restrictive provision with respect to the disclosure and use
of the wiretap’s intercepted calls. As in Roberts, the significant
difference in the scope of the privacy protection created by the
California statute “indicates that [the state legislature] intended
the statute not conform to federal law in this regard.” (Id. at
p. 1180.) Thus, relying upon federal wiretap act does not aid the
County’s position here. Nor does citation to factually
distinguishable federal decisions—bound not by California law
but by the far broader scope of the federal wiretap act—assist the
County’s contentions. (See, e.g., Forsyth v. Barr (5th Cir. 1994)
19 F.3d 1527.)
DISPOSITION
The judgment is affirmed. The parties are to bear their
own costs on appeal.
CERTIFIED FOR PUBLICATION.
JOHNSON, J.
We concur:
CHANEY, Acting P. J. BENDIX, J.
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