IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION _____

PETITION FOR WRIT OF MANDATE

TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE JUSTICES OF THE CALIFORNIA COURT OF APPEAL, SECOND APPELLATE DISTRICT:

Defense counsel moved for disclosure of the use of any wiretap from which evidence in this case was derived. The prosecutor attempted to assert a privilege with respect to that disclosure, and sought an in camera hearing on that assertion. Defense counsel objected to the court conducting an in camera hearing, arguing that the evidence derived from a wiretap was not "information obtained in confidence" and thus could not be the basis for assertion of any privilege. Instead of ruling upon petitioners' objection to the in camera proceedings, or upon the merits of the motion itself, the court denied the disclosure motion, stating that since the materials might involve sensitive matter the court was obliged to deny the disclosure motion in its entirety. The court erred by denying the motion simply because the defense objected to conducting an in camera hearing. In support of this petition, petitioners respectfully allege as follows:

I

The parties directly interested in these proceedings are the named petitioners, defendants in criminal case number BA109895, and respondents, the Superior Court of the State of California for the County of Los Angeles. The People of the State of California, by their attorney, Gil Garcetti, District Attorney of the County of Los Angeles, are the real party in interest. Although all the co-defendants charged herein are not real parties in interest, petitioners are serving them with a copy of this petition.

II

On March 24, 1999, an indictment was filed against petitioners and two co-defendants alleging five counts. Count one is conspiracy to transport and sell cocaine, in violation of Penal Code section 182, with eleven overt acts alleged. Count two is sale/transportation/offer to sell cocaine, in violation of Health and Safety Code section 11352, subdivision (a), with an enhancement under Health and Safety Code section 11370.4, subdivision (a)(6), for the amount being over 80 kilograms. Count three is possessing over $100,000 obtained as a result of drug trafficking, in violation of Health and Safety Code section 11370.6, subdivision (a). Count four is having proceeds derived from controlled substance offenses, in violation of Health and Safety Code section 11370.9, subdivision (a). Count five is using a false compartment with intent to conceal a controlled substance, in violation of Health and Safety Code section 11366.8, subdivision (a). All counts are alleged to have occurred on February 12, 1999. An enhancement for a principal being armed was alleged with respect to all five counts, under Penal Code section 12022, subdivision (a)(1).⁽¹⁾

III

On April 6, 1999, petitioners were arraigned on the indictment, and the matter was continued to April 20, 1999. On that date, petitioners were arraigned and plead not guilty. Extended matters unrelated to this petition occurred; eventually the matter was assigned to Department 106, the Honorable James M. Ideman, judge presiding.

IV

Counsel for petitioners Pena and Villalta filed two informal requests for discovery. The first request asked, among other items, for all statements obtained through electronic interception, including all copies of tape recordings and logs of conversations between any of the defendants. The request stated that an arresting officer told Pena "we've been listening to you since 10:00 a.m. this morning." The request also sought all documents reflecting the basis for the initiation of the surveillance resulting in the arrests of the defendants.

The second request sought the source of information linking the defendants to drug trafficking, and all transcripts of conversations overheard by wiretaps. On May 18, 1999, petitioner Gonzalez joined in the discovery requests.

V

On May 10, 1999, real party filed a response to the motion for discovery. Real party objected to the wiretap disclosure request as overbroad⁽²⁾, and stated that real party would be asserting a privilege under Evidence Code section 1040. Real party also argued that the request was premature because the statute provides that evidence derived from a wiretap may not be used unless it is disclosed ten days before such use. Real party noted that no trial date had yet been set, and argued that more than ten days would occur before any such trial, rendering the request for disclosure premature.

VI

On May 18, 1999, petitioners filed an objection and opposition to any in camera hearing on a claim of privilege with respect to any wiretap, arguing that a wiretap is not "information obtained in confidence" and that the specific disclosure provisions of the wiretap law control over any claim of privilege. (Exh. G.) Petitioners requested judicial notice of the pleadings and ruling in superior court case number BH 0011188, In re Salcido, et.al. (Exh. G, p. 6, fn. 2.)

VII

On June 14, 1999, co-defendant Rios filed a motion for discovery, seeking, among other items, copies of recordings of communications during the surveillance. On June 24, 1999, real party filed a second response to discovery, again arguing that the request for disclosure was overbroad ⁽³⁾and referencing their first response where they sought to assert a privilege under Evidence Code section 1040. Real party argued that Penal Code section 1054.1 controls discovery in criminal cases, and seemed to argue that the request was outside Penal Code section 1054.1 and thus need not be granted. Real party also argued that under People v. Luttenberger (1990) 50 Cal.3d 1, a criminal defendant must make a preliminary showing casting doubt on the veracity of statements made by an affiant in support of a search warrant before the court is required to conduct any in camera hearings on such statements. Real party filed a third response to discovery, specifically listing co-defendants Villalta and Pena, and repeated the arguments in their second response.

VIII

On June 25, 1999, the matter came on calendar in the superior court, the Honorable James M. Ideman, judge presiding, for hearing on the defense motions. The court first heard a bail motion. (Reporter's Transcript of June 25, 1999, hereafter "IRT.," Exh. K herein, pp. 4-8.)

Defense counsel then sought disclosure of whether a wiretap was involved in this case, and objected to any in camera review of that issue. (IRT, pp. 10-11.) The court appeared to suggest a distinction between a defendant who was the specific and direct target of a wiretap and someone not such a target who was overheard during a wiretap, either by a call to someone who was the target of a wiretap or who was merely mentioned by others being tapped. (IRT, pp. 13-16.)

Real party then stated that the defendants were not the specific targets of a wiretap in this case. (IRT, p. 16.) Real party argued that if the defendants were merely mentioned by others being tapped, they have no standing to receive disclosure. (IRT, p. 27.) Real party admitted that the applicable federal statute requires disclosure to "any aggrieved person," while the controlling California statute requires disclosure to "any person," but real party argued that this was merely a drafting error, and thus the California statute should be construed to mean only "any aggrieved person" is entitled to disclosure. (IRT, pp. 27, lines 21-27, 30.)

Real party argued that if the defendants called a target of the wiretap, real party was entitled to go in camera and assert a privilege with respect to disclosure of that situation. (IRT, pp. 28, 30.)

The court asked whether defense counsel rejected real party's alternative of having the court conduct an in camera hearing on the claim of privilege; the defense rejected that alternative. (IRT, pp. 34-35.) The court stated that it would not turn over wiretap information to the defense without reviewing it first, to protect any ongoing investigations. (IRT, pp. 38-39.) The court then denied the motion, without prejudice, telling the defense to reconsider its position opposing review of the material in camera. (IRT, pp. 41, 46, 47.)

Counsel for petitioners specifically joined in the request for disclosure of any wiretap. Counsel argued that real party was required to disclose whether a wiretap was used and whether information from that wiretap led to the surveillance resulting in the filed charges. (IRT, pp. 42-44.)

IX

On July 28, 1999, petitioners Villalta and Pena filed a motion to suppress all evidence seized as a result of any wiretap. This pleading included an affidavit from counsel stating that a surveillance was commenced on the defendants, leading to all the evidence eventually seized. On August 23, 1999, petitioners Villalta and Pena filed a Further Argument in Support of Request for Discovery.

On September 10, 1999, real party filed their fourth response. Attached as Exhibit A to this response was the order made by the Honorable Larry Fidler, judge of the superior court, on a class action habeas corpus petition filed by the Public Defender's Office. That order requires the District Attorney's Office to comply with the notice provisions of Penal Code sections 629.68 and 629.70 (the text of these sections may be found in footnotes 4 and 5, below), specifically ruling that the disclosure order applied to "derivative or hand-off warrants, any kind of case where it's either part of a wire tap application or a lead or other evidence that's been developed from an original wire application and prosecuted based upon evidence where the lead started the case. All those cases are subject to my order."

On September 17, 1999, petitioners filed an Outline of Oral Argument. Petitioners attached wiretap logs disclosed in another proceeding, showing wiretapped conversations overheard of a Benjamin Pena. A Benjamin Pena is a co-defendant in this case. The telephone number being tapped was (310) 749-4735. An inventory filed in case number BH 0011188 shows that (310) 749-4735 was tapped as part of Wiretap #2, which was terminated on March 8, 1998. (Attachments to Exh. O. The listing of the telephone number as being part of Wiretap #2 appears in the Inventory (attached hereto as Exh. Q, p. 4, lines 6-7). The termination date for wiretap #2 appears in the Inventory, Exh. Q, p. 5, line 21.)

X

On September 17, 1999, the matter was again called for hearing before Judge Ideman. The court began by announcing it was going to deny the defense disclosure request, and told defense counsel not to waste their time arguing. (Reporter's Transcript of September 17, 1999, Exh. P herein, hereafter "IIRT," pp. 2-3.) Counsel for petitioners then stated to the court that counsel had wiretap logs disclosed in another, unrelated case, which showed that petitioner Pena was wiretapped. (IIRT, pp. 3-5.) Counsel for real party argued that the name "Benjamin Pena" is very common and a log showing an interception of someone with that name is insufficient to show it is the Benjamin Pena in this case. (IIRT, p. 6.) Defense counsel pointed out that the arresting officers in this case told the defendants they had been listening to them all day. (IIRT, pp. 13-14.) The court replied that it was reluctant to believe the claims of a defendant. (IIRT, p. 15.)

The court noted that the prosecutors had stated that the defendants in this case were not the subject of a wiretap. (IIRT, p. 16.) Defense counsel pointed out that this was not a denial that there was no wiretap used to lead to the investigation in this case. (IIRT, p. 16.) Defense counsel stated that if real party explicitly denied that any evidence derived from a wiretap was used in this case, the defense had no objection to the court conducting an in camera proceeding to review that claim. (IIRT, pp. 23-24.) Counsel for real party stated that it could be inferred that these defendants were not the specific targets of a wiretap. (IIRT, p. 24.)

Again, the court stated that it was concerned that any wiretap might involve sensitive information, and thus the court wanted to review materials in camera, but that since the defense objected to any in camera review, the court would simply deny the disclosure motion. (IIRT, p. 27.) The court said, "The offer is still open to look at this material in-camera. But as long as there's any objection from any of counsel, I can't do it." (IIRT, p. 27, lines 18-20.)

Counsel for real party then objected to the evidence offered by defense counsel of logs of wiretap intercepts showing interception of a conversation by Benjamin Pena. (IIRT, p. 30.) The court sustained that objection. (IIRT, p. 30.) Defense counsel then asked to introduce the logs into evidence by calling the officer to the stand; the court rejected this offer. (IIRT, p. 30.)

Counsel for real party objected to consideration of the claim by a defendant that the police admitted wiretapping him. (IIRT, p. 31.) Defense counsel sought to present the testimony of the defendant to that effect under oath. (IIRT, p. 31.) The court denied that request. (IIRT, p. 31.) The court then denied the motion for disclosure. (IIRT, p. 32.)

XI

The trial court's denial of the disclosure motion was error. The prosecution does not have the right to have an in camera hearing on evidence derived from a wiretap leading to the evidence in this case. Even if they did have such a right, it was error to deny the motion merely because the defense objected to the court conducting an in camera hearing on the prosecutor's claim.

The attached memorandum of points and authorities and exhibits are incorporated by reference herein.

XII

No other petition for writ of mandate, or for any other extraordinary relief, has been made on petitioners' behalf.

XIII

Appeal is not an adequate remedy at law. The order denying disclosure is not itself appealable. Any conviction resulting after this improper denial of disclosure would have to be reversed in any event; mandate is an appropriate means of obtaining pretrial discovery. (See, e.g. People v. Memro (1985) 38 Cal.3d 658, 675.) A court has the mandatory duty to decide issues presented to it. "As noted by the Court of Appeal in the present case, section 170 provides that '[a] judge has a duty to decide any proceeding in which he or she is not disqualified.'" (People v. Hull (1991) 1 Cal.4th 266, 274.)

XIV

Copies of the following documents are being lodged with this court at the time of the filing of this petition, and are incorporated by reference herein:

Exhibit A: The indictment.

Exhibit B: The minute orders.

Exhibit C: Petitioners Villalta and Pena's first informal request for discovery.

Exhibit D: Petitioners Villalta and Pena's second informal request for discovery.

Exhibit E: Petitioner Gonzalez's written joinder in the discovery request.

Exhibit F: Real party's first response to discovery, filed May 10, 1999.

Exhibit G: Petitioner Gonzalez's objection to any in camera hearing.

Exhibit H: Co-defendant Rios's motion for discovery.

Exhibit I: Real party's second response to discovery, filed June 24, 1999.

Exhibit J: Real party's third response to discovery, filed June 24, 1999.

Exhibit K: Reporter's transcript of the oral proceedings of June 25, 1999.

Exhibit L: Petitioners Villalta and Pena's motion to suppress.

Exhibit M: Petitioners Villalta and Pena's Further Argument in Support of Discovery.

Exhibit N: Real party's fourth response, filed September 10, 1999.

Exhibit O: Petitioner Gonzalez's outline of oral argument.

Exhibit P: Reporter's transcript of the oral proceedings of September 17, 1999.

Exhibit Q: Inventory of wiretaps filed in case number BH 0011188.

XV

The matter has now been set for October 29, 1999, for a report on the status of this writ petition. No stay appears necessary at this time.

WHEREFORE, your petitioners pray that a peremptory writ of mandate issue directing that respondent court vacate and set aside its ruling denying petitioners' motion for disclosure, and order the trial court to grant that motion, or, in the alternative, to conduct an in camera review of the material at issue in this case.

MICHAEL P. JUDGE, PUBLIC DEFENDER
OF LOS ANGELES COUNTY, CALIFORNIA

By___________________________________

ALBERT J. MENASTER
Deputy Public Defender

VERIFICATION

STATE OF CALIFORNIA

ss.

COUNTY OF LOS ANGELES

I, the undersigned, declare under penalty of perjury as follows:

I am an attorney at law, duly licensed to practice in all the courts of California, and I am employed as a deputy public defender for the County of Los Angeles.

In this capacity, I represent petitioner Gonzalez in the foregoing petition for writ of mandate and I make this verification as his attorney acting on his behalf in that the allegations made therein are more within my knowledge than petitioners.

I have read the foregoing petition and know of my own personal knowledge that the matters alleged therein are true, based on the exhibits attached hereto.

Executed this ___ day of _________, 1999, at Los Angeles, California.

____________________________

ALBERT J. MENASTER
Deputy Public Defender

POINTS AND AUTHORITIES

INTRODUCTION

There are many aspects of the law of wiretapping that are complex and esoteric. There are many aspects of the law of wiretapping that are unsettled. Ultimately, this case may present some of those issues. However, this petition presents a very simple issue: may a trial judge deny a motion for disclosure of a wiretap solely on the basis that defense counsel objects to the court conducting an in camera hearing on the prosecutor's claim of privilege about whether evidence derived from a wiretap was involved? Petitioners contend that in fact no privilege may be claimed if evidence was derived from a wiretap, and thus the trial court erred in denying the motion merely because the defense properly objected to an in camera review. However, even if in camera review is available, the trial court's order must still be reversed, since even a meritless objection to an in camera review cannot form a valid basis for denial of the motion; the correct action would be to overrule the objection and conduct the in camera review. Either way, the trial court's summary denial of the motion was erroneous.

To help this court more fully understand the issues presented by this case, petitioners will present an overview of the wiretapping law and a brief summary of some of the issues raised in the trial court in Argument III, below. However, this court need not resolve any of those issues, since none are presented in this petition. This petition presents only the issue of whether the trial court erred in denying the motion for disclosure merely because petitioners objected to an in camera review requested by real party.

I

EVIDENCE CODE SECTION 1040 CAN NOT SHIELD THE EXISTENCE OF A WIRETAP FROM THOSE PERSONS AGAINST WHOM DERIVATIVE EVIDENCE IS BEING INTRODUCED

Real party argues a right to proceed in camera on a claim of privilege. This claim is wrong. Evidence derived from a wiretap is not "information acquired in confidence," and thus cannot be shielded by the official privilege. The existence of "information acquired in confidence" is a necessary foundational element of the official privilege. Thus, no privilege may be asserted with respect to the existence of a wiretap.

Evidence Code section 1040, subdivision (a), codifies the official governmental privilege, but a prerequisite for any claim of that privilege is that there must be "information acquired in confidence." Evidence Code section 1040 provides that "a public entity has a privilege to refuse to disclose official information." (Evid. Code § 1040, subd. (b).) But the section has a quite specific definition of "official information": "As used in this section, 'official information' means information acquired in confidence . . . . " (Evid. Code § 1040, subd. (a).)

Case law has made it clear that the foundation for any claim of privilege depends on a showing that there was "information acquired in confidence." The Supreme Court has stated, "We note at the outset that the conditional privilege, like the absolute privilege, is applicable only to 'information acquired in confidence. . . .' (§ 1040, subd. (a).)" (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 124.)

The Court of Appeal has restated this point:

"Preliminarily, we note section 1040 of the Evidence Code 'represents the exclusive means by which a public entity may assert a claim of governmental privilege based on the necessity for secrecy.' (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540 [113 Cal.Rptr. 897, 522 P.2d 305], italics added.) 'It essentially establishes two different privilegesan absolute privilege if disclosure is forbidden by a federal or state statute (subd. (b)(1)), and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (subd. (b)(2).)' (Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123 [130 Cal.Rptr. 257, 550 P.2d 161].) Moreover, either privilege is applicable only to 'information acquired in confidence.' (Evid. Code, § 1040, subd. (a).)" (Register Div. of Freedom Newspapers, Inc. v. County of Orange (1984) 158 Cal.App.3d 893, 905.)

Some argument might be made that the very fact of the wiretap itself was "acquired in confidence." However, if the police during a wiretap overhear a conversation, especially one by the defendants themselves, it cannot be claimed that this qualifies as information the police "acquired in confidence": it is not information communicated to the police in confidence, since it was not communicated to the police at all. "Where an informant was a participant in the crime and made a telephone call to defendant that was recorded by police, it has been held that the communications to the police and the informant's identity were not 'in confidence.'" (People v. Otte (1989) 214 Cal.App.3d 1522, 1533; People v. McShann (1958) 50 Cal.2d 802, 810; the cross-examination about the telephone conversation with the defendant "did not deal with communications made to them `in confidence.'")

Thus, not everything the government wishes to keep secret can be shielded by the official privilege; only "information acquired in confidence" can form the basis of a claim of privilege. No California case has found the privilege applicable to wiretaps.

Moreover, real party cannot assert a privilege for a claimed informant under Evidence Code section 1040 if what they intend to conceal is the fact that an informant was the source of the information. As explained in the published comment of the Assembly Committee on Judiciary:

"The official information privilege provided in Section 1040 does not extend to the identity of an informer. Section 1041 provides special rules for determining when the government has a privilege to keep secret the identity of an informer." (Comment to Evid. Code § 1040.)

Therefore, as a prerequisite to invoking Evidence Code section 1040, the People must establish, through legally competent evidence, that the privilege is not being asserted to conceal an informant. Conversely, a prerequisite to invoking Evidence Code section 1041, is the establishment of the fact that an informant actually exists and the people are not simply attempting to conceal a wiretap.

II

THE COURT IMPROPERLY DENIED THE MOTION FOR DISCLOSURE ON THE BASIS THAT THE DEFENSE OBJECTED TO ANY IN CAMERA PROCEEDINGS

As just noted, real party's claim they had a right to an in camera hearing on a claim of privilege is erroneous. If this court agrees, the trial court's ruling was obviously erroneous. However, even if real party did have a right to assert a privilege on whether a wiretap existed leading to the evidence in this case, and real party had a right to an in camera hearing on that assertion, the mere objection by the defense to an in camera hearing cannot justify denial of the disclosure motion.

If in fact real party had a right to an in camera hearing on a claim of privilege, the proper course for the trial court would have been to overrule the defense objection and conduct the in camera review. Denial of the disclosure motion was not a correct action.

Assume the prosecutor withheld an arrest report in a case, and the defense sought disclosure of that report. Assume that the prosecutor attempted to assert a privilege with respect to the report. Defense counsel would object on grounds that no privilege can be asserted with respect to an arrest report. Surely the court could not deny the motion for disclosure of the arrest report on the basis that counsel was objecting. If the objection was not well taken, it should be overruled and an in camera hearing conducted. If the objection was well taken, the court should order disclosure of the report. The mere making of an objection cannot justify denial of an otherwise meritorious disclosure motion.

III

THE LAW OF WIRETAPPING

As explained above, this is a simple case, presenting only whether the trial court properly denied the disclosure motion merely because petitioner objected to an in camera review. However, many other issues were presented by the parties in this case. In light of the court's ruling, none of them need be addressed by this court in this petition. However, to provide this court with a more complete understanding of all of the issues, petitioner will present an overview of the law of wiretapping, and a summary of real party's arguments in the trial court, as well as why those arguments are incorrect, and the facts of this case.

A. OVERVIEW OF THE LAW OF WIRETAPPING

A brief overview of the law of wiretapping is essential to understand how simple the issue in this case is.

Federal law provides that states may permit police wiretaps, but only if the state enacts a statutory scheme which affords at least the minimum protections required under federal law. "Thus, a violation of the federal statute renders the illegally obtained evidence inadmissible in state court proceedings. (State v. Politte (1982) 136 Ariz.Ct.App. 117 [664 P.2d 661, 670].) The Act, in effect, establishes minimum standards for the admissibility of evidence procured through electronic surveillance; state law cannot be less protective of privacy than the Federal Act. (United States v. McKinnon, supra, 721 F.2d at p. 21, fn. 1; Pulawski v. Blais (R.I. 1986) 506 A.2d 76, 77.)" (People v. Otto (1992) 2 Cal.4th 1088, 1098.)

Although there are many aspects to the wiretapping statute enacted in

California, only a few are relevant to this case. There are two provisions for disclosure of the wiretap. The contents of any intercepted conversation, and any evidence derived from such an interception, must be disclosed not less than ten days before any hearing or procedure where that evidence is being used, or the evidence must be excluded.⁽⁴⁾ In addition, notice is required to any person intercepted during a wiretap no later than 90 days after expiration of the wiretap order.⁽⁵⁾

Although federal law leaves to the discretion of the judge the decision of whether or not to provide notice to persons other than those named in the order (18 U.S.C. § 2518(8)(d)), California law mandates notice to all persons whose conversations were intercepted, regardless of whether criminal charges are ever filed. (Pen. Code § 629.68.)

Under the federal wiretap law, a defendant would not have standing to contest evidence which was derivative of a third party's intercepted communication, there being no right under the federal law to assert the standing of a third party. (Alderman v. United States (1969) 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176.) However, under California's wiretap statute such defendants would have standing to object to the introduction of such evidence, not because they have vicarious standing through the infringement upon a third party's rights, but because their own rights under the state wiretapping law were infringed.

Finally, California does not restrict who may move to suppress evidence derived from a wiretap. Under the federal law, only an "aggrieved person" may move to suppress derivative evidence. (18 U.S.C. §2518.) An "aggrieved person" is defined as one who was intercepted, and defined by the United States Supreme Court as one named in an order or from whose premises or property the intercepted communication had occurred. (18 U.S.C. §2510.) Federal law limits the grounds for suppression to communications "unlawfully intercepted," orders which are insufficient on their face, or interceptions which are not in conformity with an order.

In Alderman v. United States, supra, 89 S.Ct. 961, the United States Supreme Court expanded standing to homeowner and residents, but refused to expand standing beyond existing rules. It noted, however, that "state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose." (Id. at p. 986, emphasis added.)

The California Legislature did exactly that. It extended standing to "any person," rather than limiting challenges to simply the "aggrieved party." (Pen. Code § 629.72.) It also broadened the grounds for suppression beyond the three grounds expressed in federal law for evidence "unlawfully intercepted," derived from a facially invalid order, or resulting from non-conformity with the order. It additionally required that evidence obtained in violation of the state wiretap law be suppressed as well. (Pen. Code § 629.72.)⁽⁶⁾

Apart from the mandatory notice provisions triggered 90 days after expiration of the wiretap order, the exclusion provision in Penal Code section 629.70 applies to any evidence "derived" from a wiretap. (See fn. 1.) Although there is no California law on the meaning of "derived" in Penal Code section 629.70, federal law makes it quite clear that "derived" means any direct or indirect result:

"Courts look to illegal search and seizure cases as an analogy, to determine the meaning of the well established term of art, 'evidence derived therefrom.' The fruit of the poisonous tree doctrine is not so broad as to exclude evidence that would not have been discovered but for the wiretap. (See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). 'Evidence derived' from an illegal wiretap is 'the product of the primary evidence, or that is otherwise acquired as an indirect result of the [wiretap], up to the point at which the connection with the [wiretap] becomes 'so attenuated as to dissipate the taint.'" (Murray v. United States, 487 U.S. 533, 537, 108 S.Ct. 2529, 2533, 101 L.Ed.2d 472 (1988). We look to Murray, a search and seizure case, for guidance, because Gelbard teaches us that the statutory phrase "evidence derived therefrom imports the fruit of the poisonous tree doctrine used in search and seizure cases. If the evidence is derived from an independent source, not the wiretap, then it can be used. (Murray, 487 U.S. at 537-38, and 542 n. 3, 108 S.Ct. at 2533-34, and 2536 n. 3; see also United States v. Reed, 15 F.3d 928, 933 (9th Cir.1994).) The government cannot profit from the illegal wiretap, whether private or public, but cannot be put into a worse position than it would have occupied had the wiretap not taken place. (Murray, 487 U.S. at 541, 108 S.Ct. at 2535.)" Chandler v. U.S. Army (9th Cir. 1997) 125 F.3d 1296, 1304.)

B. REAL PARTY'S ARGUMENTS

In the trial court, real party argued that the broadened scope of standing for "any person" explicitly provided for in Penal Code section 629.72 was merely a drafting error, and thus the California statute should be construed to mean only "any aggrieved person" is entitled to disclosure. (IRT, pp. 27, lines 21-27, 30.) This court should reject this claim, and apply the statute as written.

Moreover, real party argued in the trial court that evidence derived from a wiretap need not be disclosed, repeating the so-called "handoff" argument, which attempts to justify shielding wiretaps from disclosure by giving the information obtained from them to other officers to develop independent probable cause. (IRT, pp. 33-34.) Not only is this argument contrary to the definition of "derived" as just cited, but it was explicitly rejected by Judge Fidler in a class action habeas corpus proceeding to which real party was a party. (See Judge Fidler's order, Attachment A to Exh. N.)

Real party also argued that the request was premature because the statute provides that evidence derived from a wiretap may not be used unless it is disclosed ten days before such use. Real party noted that no trial date had yet been set, and argued that more than ten days would occur before any such trial, rendering the request for disclosure premature. (Exh. F.) However, this cannot form any valid basis for denial of the disclosure motion. The statute does not provide that no disclosure may occur until ten days before the evidence is sought to be used; it provides that a disclosure that takes place less than ten days before such evidence is sought to be used bars admission of that evidence. (Pen. Code § 629.70.) Penal Code section 1538.5 provides that a motion to suppress must occur before trial; surely that section does not bar motions long in advance of trial, as opposed to the moment before trial begins.

Real party argued that Penal Code section 1054.1 controls discovery in criminal cases, and seemed to argue that the request was outside Penal Code section 1054.1 and thus need not be granted. Of course, Penal Code section 1054 expressly states that its provisions do not apply if there is an "express statutory provision," which the wiretap Penal Code sections cited clearly are. (See Albritton v. Superior Court (1990) 225 Cal.App.3d 961.)

Real party also argued that under People v. Luttenberger (1990) 50 Cal.3d 1, a criminal defendant must make a preliminary showing casting doubt on the veracity of statements made by an affiant in support of a search warrant before the court is required to conduct any in camera hearings on such statements. (Exh. I.) Of course, under Luttenberger, the defense is required to make a preliminary showing challenging the contents of a search warrant affidavit in order to obtain in camera review for a challenge to the warrant. "People v. Luttenberger (1990) 50 Cal.3d 1, 22 [265 Cal.Rptr. 690, 784 P.2d 633] [defendant must offer evidence casting some reasonable doubt regarding either the existence of an informant or the truthfulness of the affiant's report before a court is required to conduct in camera review or order discovery relating to a warrant affidavit].)" (People v. Evid (1994) 31 Cal.App.4th 114, 127, fn. 5.)

However, the Luttenberger context is not analogous to this case. analogy. The defense in this case knows nothing about any wiretap; real party refuses to disclose even whether any wiretap was in the chain leading to the evidence obtained in this case. The correct analogy is to Hobbs, where the Supreme Court upheld use of sealed search warrant affidavits:

"Where, as here, due to the sealing of any portion or all of the search warrant affidavit, the defendant cannot reasonably be expected to make the preliminary showing required under Luttenberger, supra, 50 Cal.3d 1, to initiate a subfacial challenge (by moving to traverse the warrant), or otherwise make an informed determination whether sufficient probable cause existed for the search (in consideration of a motion to quash the warrant), certain procedures should be followed in order to strike a fair balance between the People's right to assert the informant's privilege and the defendant's discovery rights.

"On a properly noticed motion by the defense seeking to quash or traverse the search warrant, the lower court should conduct an in camera hearing pursuant to the guidelines set forth in section 915, subdivision (b), and this court's opinion in Luttenberger, supra, 50 Cal.3d at pages 20-24." (People v. Hobbs (1994) 7 Cal.4th 948, 971-972.)

Thus, under Hobbs an in camera review is mandated, without any preliminary showing, where the facts at issue are wholly shielded by the prosecution. Moreover, Luttenberger applies only where a search warrant is involved. This case presents issues related to information obtained before any search warrant was sought. Any wiretap would have to be disclosed under the mandatory notice and production statutes quoted above. Thus, real party's attempt to invoke Luttenberger as an analogy is quite wrong.

C. THE FACTS OF THIS CASE

Petitioners are not seeking disclosure of the existence of any wiretap leading to the evidence seized in this case wholly at random. Even though the prosecution has yet to disclose the existence of a wiretap leading to the evidence in this case, several facts point to the existence of such a wiretap. The reason for the surveillance which resulted in all observations and seizures in this case is not explained. (Exh. L.) The defense offered logs from another wiretap showing conversations of petitioner Benjamin Pena. (Exh. O.) The defense also offered to call petitioner Pena to testify that the arresting officers told him they had been listening to him all day. (Exh. O.) This, coupled with the prosecution's statement that the co-defendants here were not the specifically named targets of any wiretap, surely suggests that a wiretap was the source of the surveillance and the resulting evidence in this case.

Moreover, if in fact the wiretap log offered by the defense showing a conversation of petitioner Pena led to the investigation, disclosure would be required, since that wiretap ended in 1998, more than 90 days ago.

CONCLUSION

The trial court here denied the disclosure motion because petitioners objected to the court conducting an in camera review upon a claim of privilege by real party. In fact, an in camera review is not justified. Hoever, even if in

camera review is permitted, the trial court erred in denying the disclosure motion merely because of petitioners' objection. Either way, the trial court could not properly deny the motion.

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

Thomas Moore,

Kathy Quant,

Michael Fischman,

Albert J. Menaster,

(State Bar No. 57787)

Deputy Public Defenders

By___________________________________

ALBERT J. MENASTER

Deputy Public Defender

Attorneys for Gonzalez

Ralph E. Meczyk, Esq.

(Illinois Bar No. 1874802)

(Counsel for Pena)

Lawrence H. Hyman, Esq.

(Illinois Bar No. 1297929)

(Counsel for Villalta)

1. The transcript of the grand jury proceedings was never offered into evidence in the disclosure motion at issue herein. Moreover, the facts underlying the charges are wholly irrelevant to the disclosure motion. Thus, the transcript will not be summarized herein.

2. The claim of overbreadth is never explained by real party.

3. See fn. 2.

4. "The contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communication or evidence derived from it shall not be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding, except a grand jury proceeding, unless each party, not less than 10 days before the trial, hearing, or proceeding, has been furnished with a transcript of the contents of the interception and with a copy of the court order and accompanying application under which the interception was authorized. This 10-day period may be waived by the judge if he or she finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and that the party will not be prejudiced by the delay in receiving that information." (Pen. Code § 629.70.)

5. "Within a reasonable time, but no later than 90 days, after the termination of the period of an order or extensions thereof, or after the filing of an application for an order of approval under Section 629.56 which has been denied, the issuing judge shall cause to be served upon persons named in the order or the application, and other known parties to intercepted communications, an inventory which shall include notice of all of the following:

"(a) The fact of the entry of the order.

"(b) The date of the entry and the period of authorized interception.

"(c) The fact that during the period wire, electronic digital pager, or electronic cellular telephone communications were or were not intercepted.

The judge, upon filing of a motion, may, in his or her discretion, make available to the person or his or her counsel for inspection the portions of the intercepted communications, applications, and orders that the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge, the serving of the inventory required by this section may be postponed. The period of postponement shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted." (Pen. Code § 629.68.)

6. "Any person in any trial, hearing, or proceeding, may move to suppress some or all of the contents of any intercepted wire, electronic digital pager, or electronic cellular telephone communications, or evidence derived therefrom, only on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of the United States Constitution or of this chapter. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5." (Pen. Code § 629.72.)