LAW OFFICES OF THE LOS ANGELES COUNTY

ALTERNATE PUBLIC DEFENDER, BRUCE A. HOFFMAN

Cynthia Kairys, Deputy Alternate Public Defender

State Bar No. 147677

Appellate Department

4001 Foxridge Way

Napa, California 94558

Telephone: (707) 255-3359 (888) 227-8234

Fax: (707) 255-5833

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

IN RE REYES SANCHEZ SALCIDO,
DOES 1 THROUGH 10,000, WHO ARE KNOWN BUT UNNAMED PERSONS WHO ARE, HAVE BEEN, OR WILL BE REPRESENTED BY THE LOS ANGELES COUNTY PUBLIC DEFENDER AND ALTERNATE PUBLIC DEFENDER,
Petitioners.
Case No:

(Filed in connection with Los Angeles Superior Court Case Numbers BH001118 and BA159367, and such other case numbers as may be disclosed in the hearing.)

PETITION FOR WRIT OF HABEAS CORPUS

TO THE HONORABLE LARRY FIDLER, THE PRESIDING JUDGE OF THE SUPERIOR COURT FOR THE COUNTY OF LOS ANGELES AND/OR THE JUDGE DESIGNATED BY THE PRESIDING JUDGE PURSUANT TO PENAL CODE SECTION 629.50:

In order to promote judicial economy, petitioners, by and through Bruce A. Hoffman, Alternate Public Defender of Los Angeles County, and Cynthia Kairys, Deputy Alternate Public Defender, respectfully request to join in the petition for writ of habeas corpus filed in Los Angeles superior court case number BH001118, and to expand the scope of the class of persons named as petitioners in that case. The Alternate Public Defender will raise and rely on the identical issues, arguments, points and authorities, the prayer and exhibits stated in case number BH001118.

Petitioners have been made aware through reports in the news media⁽¹⁾ and official court transcripts ⁽²⁾that the Los Angeles County District Attorney's Office has created a policy and procedure, referred to as the "hand-off" procedure, whereby law enforcement officers within the County of Los Angeles engage in the unlawful practice of surreptitious electronic surveillance of suspected offenders.

As a result of this information, Michael P. Judge, Public Defender for the County of Los Angeles, and Kathy Quant, Deputy Public Defender, filed a petition for writ of habeas corpus entitled, "In re Reyes Sanchez Salcido, and Does 1 through 10,000, who are known but unnamed persons who are, have been, or will be represented by the Los Angeles County Public Defender, Petitioners," in superior court case number BH001118.

That petition does not include in the class of petitioners persons who are past clients of the Los Angeles County Public Defender where a conflict of interest exists or existed. The Los Angeles County Alternate Public Defender, Bruce A. Hoffman, is counsel for defendants where a conflict of interest exists or existed for the Los Angeles County Public Defender. All Alternate Public Defender clients who are either named in an electronic surveillance order, are parties to intercepted communications, or have been the subject of an arrest or search warrant based on evidence derived from intercepted communications are entitled to notice immediately. Each of these petitioners has either been arraigned and therefore required to receive notice, inventory, and disclosure 10 days prior to their preliminary hearing or has already had their rights violated by proceeding through a preliminary hearing or other proceeding without such notice, inventory or disclosure and possibly held to answer on insufficient legally admissible evidence. As new defendants are arraigned, they too will be reaching the outermost limits of any possible delay of notice and disclosure.

Therefore, petitioners, a class of persons including all criminal defendants, past, present, and future, who are, have been, or will be, represented by the Los Angeles County Alternate Public Defender, by and through Bruce A. Hoffman, Alternate Public Defender of Los Angeles County, and Cynthia Kairys, Deputy Alternate Public Defender, hereby join in and adopt by reference, through the filing of this petition, the petition filed in case number BH001118.. Petitioners incorporate herein by reference the verifications, all the arguments, points and authorities, the prayer and exhibits in that petition.

In support of this petition, petitioners, by and through Bruce A. Hoffman, Alternate Public Defender of Los Angeles County, and Cynthia Kairys, Deputy Alternate Public Defender, hereby respectfully allege as follows:

Petitioners are a class of persons who are, were, or will be Alternate Public Defender clients and who have been denied their statutory and constitutional rights to notice, inventory, and/or disclosure of communications intercepted by the use of an electronic surveillance device⁽³⁾ pursuant to state and federal laws.

Other interested parties may include the petitioners Reyes Sanchez Salcido, a defendant in Criminal Case Number BA159367, and Does 1 through 10,000, petitioners in case number BH001118. a class of persons who are, were, or will be Los Angeles County Public Defender clients, by and through their attorneys, Michael P. Judge, Public Defender for the County of Los Angeles, and Kathy Quant, Deputy Public Defender, People of the State of California, by and through their attorneys, Gil Garcetti, District Attorney for the County of Los Angeles, and Daniel Lungren, Attorney General for the State of California, and the Los Angeles Police Department.

III

All the exhibits in the petition filed in connection with Los Angeles superior court case number BH001118. are incorporated herein by reference and made a part of this petition.

Petitioners, past, present, and future, are, have been, or will be unlawfully restrained of their liberty because they are, have been, or will be facing criminal charges based on inadmissible evidence which was derived from an electronic surveillance.

Petitioners have no plain, speedy, or adequate remedy at law to correct the Los Angeles County District Attorney's Office use of the "hand-off" policy, procedure, or practice or their failure to provide notice, inventory, and/or disclosure as required by the state and federal, statutory and constitutional laws. "Extraordinary relief by mandamus or habeas corpus has been utilized to correct prior conditions or to declare the rights of unnamed and future petitioners by decisions designed to affect the prospective administration of the criminal justice system." (In re Brindle (1979) 91 Cal.App.3d 660, 670; see also In re Walters (1975) 15 Cal.3d 738, 744; In re William M. (1970) 3 Cal.3d 16, 23; Reaves v. Superior Court (1971) 22 Cal.App.3d 587, 592-593; In re Henderson (1972) 25 Cal.App.3d 68, In Re Head (1983) 147 Cal.App.3d 1125, 1131; Mendoza v. County of Tulare (1982) 128 Cal.App.3d 403, 420.) Petitioner's contentions in this regard are more fully set forth in the points and authorities filed in Los Angeles superior court case number BH001118, which are incorporated herein by reference.

No other petition for extraordinary relief has been filed by or on behalf of the petitioners relating to this action. Although petitions for extraordinary relief may have been filed by unnamed petitioners, such petitions did not relate to the issues presented herein.

WHEREFORE petitioners respectfully pray:

1) That this court issue its writ of habeas corpus, and thereafter order the Los Angeles County District Attorney to state immediately the names of all the following persons:

a) Each and every petitioner who has ever been named in an electronic surveillance or wiretap order.

b) Each and every petitioner who has ever had communications intercepted through the use of an electronic surveillance or wiretap order.

c) Each and every petitioner who has ever been named in a search or arrest warrant based on evidence derived from an electronic surveillance or wiretap order; and

d) Each and every petitioner who has ever or any petitioner who has or will have evidence introduced at trial which was derived from an electronic surveillance or wiretap order.

2) That this court cause notice and inventory of any electronic surveillance or wiretap, which has as yet not been disclosed, to be served, through the Office of the Los Angeles County Alternate Public Defender, on the following persons represented by the Los Angeles County Alternate Public Defender in the past, present or future:

a) Each and every petitioner who has ever been named in an electronic surveillance or wiretap order.

b) Each and every petitioner who has ever had communications intercepted through the use of an electronic surveillance or wiretap order.

c) Each and every petitioner who has ever been named in a search or arrest warrant based on evidence derived from an electronic surveillance or wiretap order; and

d) Each and every petitioner who has ever or any petitioner who has or will have evidence introduced at trial which was derived from an electronic surveillance or wiretap order.

3) That this court order the Los Angeles County District Attorney's Office to provide each and every petitioner who has or will have evidence introduced at trial, which was derived from an electronic surveillance or wiretap which has as yet not been disclosed, 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.

4) That this court declare that failure to provide notice, inventory, and/or disclosure generally, and the "hand-off" policy, procedure, and practice specifically, is unlawful and in violation of state and federal statutory and constitutional law.

5) That this court take evidence and testimony as necessary to ensure that each and every petitioner entitled to notice, inventory, and/or disclosure of an electronic surveillance or wiretap is made known and provided with such notice, inventory, and/or disclosure.

6) That this court hold a fact-finding hearing to determine in which cases the Los Angeles County District Attorney's Office, or the Los Angeles Police Department, as well as any other law enforcement agency in Los Angeles County later determined to have been involved in such practice, used a wiretap or electronic surveillance generally, and the "hand-off" policy, procedure, and practice, specifically, without providing notice of that fact to the defendants.

7) That this court order the Los Angeles County District Attorney, and the Los Angeles Police Department, to provide the Los Angeles County Alternate Public Defender's Office with all reports and memorandum regarding or concerning electronic surveillance or wiretapping generally, and the "hand-off" policy, procedure, and practice specifically, including but not limited to Sergeants' Daily Reports, logs, "Trend Reports," activity reports, and 72-hour reports.

8) To order the Los Angeles County District Attorney's Office, the Los Angeles Police Department, and persons connected therewith, to refrain from destroying the following documents until this petition is resolved:

a) Any and all records, case files, reports, notes, in all criminal cases regarding wiretapping.

b) Any and all memorandums, training manuals, notices, regarding wiretapping.

c) Any and all transcripts of intercepted communications and in camera hearings, orders, warrants, and applications regarding wiretapping.

9) For such other and further relief as this court may deem just and proper.

BRUCE A. HOFFMAN, ALTERNATE PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

By ______________________________

Cynthia Kairys

Deputy Alternate Public Defender

1. ^0/ Daily Journal articles dated March 18, March 23, March 27, April 16, and April 22, 1998, and Los Angeles Times articles dated April 8, April 16, April 22, and April 26, 1998.

2. ^0/ A hearing conducted in Department 130 of the Los Angeles Superior Court pursuant to Penal Code section 1538.5, in Case Numbers BA0132597 and BA109547, "People v. Antonio Rocha Gastelum, Carlos Inzunza Lobo, and Lauro Rocha Gaxiola.''

3. Commonly known as a "wiretap."