IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

__________

THERESA ACOSTA, ) SA________________

)

Petitioner, ) 2nd Dist. No. B122478

) (Sup. Court No. BA158245)

v. )

)

SUPERIOR COURT OF THE )

CULVER JUDICIAL DISTRICT, )

)

Respondent, )

)

THE PEOPLE OF THE STATE )

OF CALIFORNIA, )

)

Real Party in Interest. )

)

________________________________ )

PETITION FOR REVIEW

TO THE HONORABLE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE STATE OF CALIFORNIA:

Petitioner Teresa Acosta respectfully petitions this court for review of the order issued by the Court of Appeal on September 25, 1998, summarily denying the petition for writ of mandate filed by petitioner. A copy of the order is attached to this petition as an Appendix. Review is necessary to settle important questions of law relating to the enforcement of the state wiretap laws and uniformity of decisions which will need to be made by Courts throughout Los Angeles County as a result of the discovery of massive illegal wiretapping by the Los Angeles County District Attorney.

ISSUES ON REVIEW

1. May a court conduct ex-parte, in-camera proceedings to rule on discovery motions without an assertion of a privilege by the prosecutor in open court, without defendants being informed of the basis for that ex-parte communication, and without providing the defendant an opportunity to submit questions to attempt to reveal possible misrepresentations?

2. Can the state, federal, and constitutional mandates of notice and production of wiretap records prior to the introduction of wiretap derivative evidence into any hearing be simply avoided by a prosecutors claim of the existence of an on-going wiretap investigation by a state or federal agency in direct contradiction of the United States Supreme Court's ruling in Alderman v. United States (1969) 89 S.Ct. 961, which held that such records must be disclosed regardless of the potential danger to the safety of third parties or even national security?

3. Can the Los Angeles County District Attorney conceal massive unlawful wiretap operations which result in the arrests of hundreds of people without ever disclosing that fact, then be allowed to engage in ex-parte communications without the ability to confront through an adversarial hearing?

IMPORTANCE OF REVIEW

Review is necessary in this case to secure uniformity of decision and settle important questions pertaining to California's Wiretap Act which have not been resolved due largely to the fact that the Los Angeles County District has conducted most of the State's wiretap operations, but managed to conceal that fact from defendants, the courts, the legislature, and the public. Petitioner Acosta is the first of many defendants in Los Angeles County presently attempting to either litigate the lawfulness of wiretap operations recently revealed by the People, or determine if their cases arose from wiretap operations which the People are still unlawfully concealing.

The Los Angeles County District Attorney's Office was recently ordered by Los Angeles County Superior Court Judge Gregory Alarcon to disclose that it had conducted a wiretap against the defendants then being prosecuted with evidence derived from that interception but unlawfully concealed from them in violation of their state and federal statutory and constitutional rights. Unveiled however, was not a single wiretap concerning those defendants, but one of the largest court authorized wiretap operations in the history of the United States. Also revealed were egregious violations of the state and federal wiretap laws which had been committed by the Los Angeles County District Attorney.

In May of 1996, the Los Angeles County District Attorney obtained a wiretap order issued by a Judge without jurisdiction to intercept an entire cellular telephone company based on allegations that the owners were involved in the trafficking of narcotics in excess of three pounds but which, even after almost two years of continuous eavesdropping, was never supported by evidence. The fact that no evidence was presented to suspect that anyone using the company's telephones had committed a crime was no barrier to the People who simply obtained authorization for interception of the "unknown" co-conspirators and any "others as yet unknown." But the invasion of privacy resulting from the lack of probable cause was minimal compared to the fact that the order required all Los Angeles County based telephones companies to provide interception of not only the numbers authorized by the order, but for "any subsequently changed telephone number" of these unknown targets "upon request" of the District Attorney. The result is obvious. Law enforcement began listening to the conversations of the authorized numbers but when no evidence was obtained it was then "alleged" that the number was "changed" and a new interception began on a new telephone number without any written court authorization or subsequent showing. /⁽¹⁾

The total extent of the invasion of privacy and the type of information gathered as a result of this order is still unknown and may never be revealed. What is known is that government reports show that all states courts nationwide collectively wiretap only about 500 telephones a year through orders which last approximately 28 days, yet the Atel wiretap order lasted almost two years and directly resulted in the interception of approximately 350 separate telephones. As a main source of evidence and intelligence gathering in Los Angeles County, information obtained from this order was used to provide law enforcement with information to make hundreds of arrests and seize at least $7,000,000 in United States Currency. Expecting that the wiretap would never be disclosed, and therefore never subject to attack or review, the Los Angeles District Attorney disregarded virtually every procedural requirement specifically imposed by the state and federal wiretapping laws to limit the use of wiretapping as an extraordinary investigative tool of last resort.

Centralization of wiretap authorization was expressly mandated by the federal law, and even more so by state law, as a protective measure to prevent misuse of electronic eavesdropping. (United States v. Giordano (1974) 416 U.S. 505, 528, 94 S.Ct. 1820, 40 L.Ed.2d 341.) It was believed that abuses of wiretapping would be eliminated by assigning ultimate responsibility to an identifiable person who was subject to the public political process. The United States Supreme Court took that congressional mandate seriously and held in Giordano that a violation of that requirement would render any resulting order invalid and require suppression of any and all evidence derived therefrom. (Ibid.)

The combined centralization measures mandated by state and federal law required that wiretap applications be reviewed and authorized by the "chief executive officer" of the law enforcement agency making the application or their designee, and required applications be submitted "in writing upon the personal oath" of "the district attorney" himself. (Pen. Code § 629.50, 18 U.S.C. 2518.) Moreover, to eliminate any possible utilization of forum shopping to bypass the strict procedural requirements imposed, the state law limited jurisdiction for the issuance of wiretap orders to only "the presiding judge of the superior court or one other judge designated by the presiding judge." (Pen. Code § 629.50, 18 U.S.C. 2518.) Despite these clear long standing mandates, as well as the known consequences for any violation, the Los Angeles County District Attorney's Office created a policy that allowed application of wiretap orders upon the signature of the "acting" District Attorney if the District Attorney himself was not within the county./⁽²⁾

Moreover, not one, but at least five judges are now known to have been issuing wiretap orders throughout 1997 alone, none of which were issued by the Presiding Judge. His only order was to designate a judge to issue wiretap orders, but additionally provided for two "back-up" judges in case of unavailability. Applications for wiretap orders were soon submitted by the District Attorney to all three judges, regardless of availability. In fact, many orders were issued by different judges on the very same day. While both the state and federal law require reporting of such orders, that requirement was easily avoided the by acceptance of assurances by the district attorney that those reports would filed for the courts. Moreover, there apparently being requisite docketing system for wiretap applications or orders in Los Angeles County, the People were able to apply directly to any judge they wished, including non-designated judges, without the need to report such applications.

Thus the "Atel Wiretap" operation was conceived and allowed to flourish unobscured and undetected for two almost years. Together with million dollar wiretap operation conducted on public pay phones in the Los Angeles County jail, the Los Angeles District Attorney managed to invade the privacy of hundreds of thousands of people. The housing of suspects and witnesses were simply manipulated to allow wiretapping on whomever law enforcement desired without any showing or even application for a wiretap order.

The District Attorney took extraordinary unlawful measures to conceal the existence and extent of their wiretap operations, including falsification of required reporting records to the United States Courts and the Attorney General regarding the number of interceptions actually occurring, misrepresentations to courts that information was obtained from a "confidential reliable informant" when it was in fact obtained from a wiretap, and in-camera hearing assertions of the "official and unofficial privilege." Based on nothing more than the bare unchallenged assertion that disclosure would jeopardize an "ongoing" wiretap investigation being conducted by either themselves or another state or federal agency, defendants were routinely denied their statutory and constitutional rights to notice and production of wiretap documents to enable them to challenge unlawful sources of the evidence being used against them.

Moreover, admissions were made by the District Attorney that the Atel wiretap was intended to continue indefinitely, and in fact would have, had Judge Alarcon not expedited its expiration through disclosure. In another case now pending in the Court of Appeal for which counsel will soon be filing as amicus, the assertion of the privilege was made in camera without the People even discussing the obligations imposed on them by the wiretapping laws, or the judge being made aware of such. Subsequent disclosure of that hearing revealed that the defendants rights were disregarded even though the wiretap itself had expired, simply because an alleged target of the federal wiretap was in Mexico and had not yet been arrested, although it was believed that he would return in a month or so. In other cases the District Attorney has asserted that wiretap records were still sealed by either a state or federal court and therefore compliance with the law was impossible. Courts have never considered requiring the District Attorney to at least attempt to obtain authorization for disclosure from the courts who had issued those sealing order and supervised the wiretap operation because the defendants would be denied substantial rights without such authorization which could require dismissal of their cases. Dismissal or disclosure, as required by the United States Supreme Court in Alderman v. United States (1969) 89 S.Ct. 961, 970-971, was never an option presented to the District Attorney because it was never considered by the courts. The transcripts provided by the trial court in this case revealed a disclosure by the District Attorney that other judges had allowed the District Attorney to conceal their wiretap operations. It is now known that courts throughout Los Angeles County have long enabled the District Attorney to conceal their wiretap operations by simply accepting at face value their assertions and thereafter providing them with sealing orders, gag orders, or simply the denial of a defendant's right to cross-examination.

The District Attorney is continuing to evade the law with the uninformed consent and assistance of the Los Angeles County judiciary. As such, the District Attorney has managed to obtain complete relief from all wiretap notice requirements under the state or the federal law since 1992.

Petitioner is unaware of what transpired between the District Attorney and the court at the in-camera hearing conducted in this case, but it is clear that, regardless of the reasons given to the court, her case was the result of a wiretap operation. While petitioner has accepted a plea bargain in this case in order to obtain her release from custody, she is still entitled to notice and production. With the Los Angeles County Justice System so involved in and now faced with, innumerable challenges of wiretap violations only superficially described above, review by this court is imperative. Of great concern to petitioner, as well as many other defendants, is a ruling in accord with wiretapping laws and the Constitution which mandates that wiretap operations be disclosed regardless of the assertions of the District Attorney or the consequences of any investigation. Full adversarial hearings must be afforded to defendants after full disclosure of wiretap records to allow the court, not the District Attorney, to make a determination of taint and legality.

STATEMENT OF FACTS AND CASE

On December 16, 1997, a two count felony information was filed against petitioner Teresa Acosta, co-defendant Jose Ciriaco Torres, and co-defendant Jesus Ramon Felix, alleging that on or about October 21, 1997, each violated Penal Code section 182(a)(1), conspiracy, and Health and Safety Code section 11351, possession of cocaine for sale. It was further alleged that each violated Penal Code sections 12022(a)(1), (armed with a firearm); 12022(a)(2), (armed with an assault rifle), 12022(c), (personally armed); 12022(d), (knowledge that the principal was armed.)

On March 4, 1998, co-defendant Torres filed a motion for pretrial discovery, joined by petitioner, requesting disclosure of all wiretap transcripts, applications, orders, and tape recordings on March 13, 1998. On March 13, 1998, Deputy District Attorney Jason Lustig requested, and the court granted, an in-camera hearing and continued the discovery hearing to April 2, 1998.

On March 31, 1998, the court conducted an ex parte, in-camera hearing with Deputy District Attorney Jason Lustig and the proceedings were thereafter ordered sealed. Additional discovery was provided on April 2, 1998, in the form of reports, surveillance logs, and photos, related to the residence where surveillance of petitioner and co-defendants began.

On March 20, 1998, petitioner Acosta filed a Demand for Notice of Wiretap pursuant to Penal Code section 629.68, based on the fact that the Regional Narcotics Suppression Program (RNSP) established a surveillance at a residence in Anaheim at 7:00 in the morning on October 21, 1997, and two and half hours later followed a car leaving the residence and occupied by a man, woman, and child, to Los Angeles County. The officers obtained permission to search the location and discovered both narcotics and weapons. Photographs were taken by the police on July 4, 1997, Police reports disclosed that in addition to narcotics, both cellular telephones and pagers were seized from the defendants.

Petitioner offered the transcripts of the Gaxiola hearing into evidence which disclosed the "hand-off" procedure was developed by the Los Angeles County District Attorney's Office and has been taught to the Los Angeles Police Department for many years in a concerted effort to prevent the disclosure of wiretap operations in Los Angeles County. Officers testified under oath that the procedure which had been in existence for many years and provided for information obtained from an wiretap to be disclosed to officers without expressly revealing source of that information. Those officers were ordered on a surveillance equipped with specific information regarding a person, location, or other description obtained from the wiretap, and the police would thereafter look for probable cause to arrest that person and then report those facts as the basis for the arrest, and thereby somehow be absolved from the obligation to disclose the existence of the wiretap operation.

A supervising officer was continually in contact with "wire room" officers throughout each day, obtaining information from intercepted communications and disclosing the details to another officer under his command. When informed they were "getting a hand-off," or simply told to conduct a surveillance, the officers generally understood the information was obtained from a wiretap which should not be divulged. Reports were written to shield the wiretap regardless of whether they had actual knowledge of its existence. Knowledge was difficult to avoid since the roles were often rotated and the recipient officer one week was "handing-off" information the next. The procedure was nothing "unusual," but simply a "type and style" of "normal" investigations for the Los Angeles Police Department. In fact, a single Los Angeles Police Department officer admitted under oath that he alone was involved in literally "hundreds" of hand-off cases.

According to government reports, California obtained only 39 wiretaps from 1989 to the end of 1996. However, a total of sixty wiretap orders were reported as having been issued in 1997 alone. Forty-three of those wiretaps were directly related to Los Angeles County and forty-one were issued by three different Judges; Judge Rappe, Judge Czueleger, and Judge Perry. Judge Tooney in Orange County issued four orders which were related to a Los Angeles County wiretap operation. Those reports also disclosed that law enforcement agencies from different agencies worked closely with each other and federal government on wiretap operations.

On June 24, 1997, Los Angeles Judge Perry began issuing wiretap orders in a narcotics investigation and was joined by Judge Toohey in Orange County, who signed four additional orders on July 3, 1997. The investigation eventually grew to include seventeen separate but related wiretap orders, and continued through November 24, 1997. Orders issued were for the interception of wire lines, cellular telephones, and pagers, as well five separate orders for interception of public pay phones in Los Angeles County which resulted in the interception of over 137,000 people. The additional order were on October 16, 1997, November 24, 1997, and December 24, 1997.

Petitioner believes there a connection between the evidence in her case and that wiretap operation claimed her arrest. Petitioner asserted that wiretaps, rather than happenstance, were responsible for the arrests and seizure in this case, and demanded notice and disclosure be provided as required by state, federal, and constitutional law.

/ /

POINTS AND AUTHORITIES

A DEFENDANT HAS AN UNQUALIFIED RIGHT TO

DISCLOSURE OF ALL WIRETAP EVIDENCE

A disclosure of defendant's statements is "practically a matter of right even without a showing of materiality" and relevance has been broadly interpreted when applied to such statements. (United States v. Lanoue (1^st Cir. 1995) 71 F.3d 966, 974; United States v. Bailleaux (9th Cir.1982) 685 F.2d 1105, 1114; United States v. Haldeman (D.C.Cir.1976) 559 F.2d 31, 74 n. 80 (en banc), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250.)

Both Title III and Penal Code section 629.70 require that wiretap operations be disclosed and defendants be provided with copies of the order, application, and transcripts prior to the introduction of any evidence derived from a wiretap at any trial, hearing, or other proceeding in a Federal or State court. Such hearings have included detention hearings, bail review hearings, sentencing hearings, parole revocation hearings, or any other proceeding in which evidence is being introduced affirmatively by the government. (United States v. Salerno (2^nd Cir.1986) 794 F.2d 64, 69; United States v. Farese (5^th Cir. 1980) 611 F.2d 67, 71.)

As long ago as 1969 in Alderman v. United States (1969) 89 S.Ct. 961, the United States Supreme Court held that the Fourth and Fifth Amendments to the United States Constitution mandated disclosure "even though attended by potential danger to the reputation or safety of third parties or to the national security," and provided that the prosecutor's only choices were "disclosure of the information" or "dismissal of the case." (Id. at p. 970-971; see also Uited States v. Apple (4^th Cir. 1990) 915 F.2d 899,

With the enactment by Congress of 18 U.S.C. § 3504, prosecutors in federal court are additionally required to respond to a claim of unlawful electronic surveillance by making inquiry of other law enforcement agencies and thereafter either deny or admit unlawful interception, or by stating that the party was aggrieved by a lawful intercept whenever a claim is made that evidence being introduced in any hearing is alleged to be the result of an wiretap. (Wiretapping and Eavesdropping, 2^nd Ed. (1995) Clifford Fishman and Anne T. McKenna, p. 20-17.) While there are no corollary state procedures, Alderman itself would mandate similar procedures in state courts. The procedures to be taken in post-conviction discovery of wiretap evidence is explained in Alderman, its predecessor, Russo v. Byrne (1972) 409 U.S. 1219, 93 S.Ct. 21, 22, and most recently and succinctly in United States v. Apple (4^th Cir. 1990) 915 F.2d 899. In Apple, a friend of the defendant had been wiretapped and the information handed-off to other law enforcement agencies. As required by law, the intercepting agencies disclosed this fact to the target and apparently other individuals intercepted by information handed-off to other law enforcement agencies. Unlike California's law, the federal law, as well as many state laws, do not require that every person intercepted be provided notice of that fact and the defendant only learned of the wiretap operation when it was disclosed to her friends. Apple thereafter requested disclosure of such wiretap records alleging as a result of her friendship with the intercepted parties, she called the intercepted number regularly during the period of interception and, therefore, must have been intercepted. The prosecutor submitted information to the court and an unsworn statement by federal authorities asserting they knew of no wiretap. This assertion was accepted by the court on face value and disclosure was denied based both on an insufficient showing of standing as well as a finding that, even if intercepted, there was sufficient independent evidence and attenuation to purge any taint.

On review, the District Court of Appeal held that while it was true that the defendant "had not proven, and may never prove, that any of her conversations were intercepted" she "should be given a more meaningful opportunity to prove her case . . . given the relationship" which existed and the fact that it was "reasonable to assume that. . . evidence from the . . . investigation was passed along to the state and federal authorities investigating" her.

The trial court was found to have abused its discretion when it ruled on the independent source issue before the government had adequately denied the occurrence of the alleged illegal surveillance and for that reason the judgment was required to be vacated. The trial court was ordered to conduct further proceedings on remand and require the government to "make a factual, unambiguous, unequivocal showing that none of [the defendant's] conversations were intercepted during the wiretap." "If the government discovers that some of [the defendant's] conversations were intercepted during the wiretap, the records of those conversations must be disclosed; the district court may then exercise its discretion to determine whether additional disclosure should be ordered. (See Alderman, supra, 394 U.S. at 184-85, 89 S.Ct. at 972-73.) The district court will then be in a position to consider the independent source issue." Judgment could be reinstated only if the government demonstrated that the wiretap was not unlawful; the court found the government's evidence was developed from independent sources or was sufficiently attenuated from the illegal interceptions unlawful, or; the government adequately denies the occurrence of the alleged unlawful act "based on inquiries to the relevant government agencies and requests for searches of agency files."

However, the "predicate for acceptance of the government's denial is that the government official making the denial have sufficient information upon which a reasonable response can be based." "In general, we shall expect the Government's denial to be amplified to the point of showing that those responding were in a position, by firsthand knowledge or through inquiry, reasonably to ascertain whether or not relevant illegal activities took place...." The previously submitted unsworn letter based on inquiries to irrelevant agencies was an inadequate response. The government would need to submit evidence of an official inquiry of authorities involved in the investigation of the defendant and only after review the logs or tapes of the surveillance and other first-hand inspection. Hearsay testimony would similarly be deficient at it provides no assurance that any of his sources were in a position reasonably to ascertain, by having checked the tapes or the logs, whether or not the defendant's conversations had been intercepted.

The court found that any "[c]ontrary findings [would] necessitate a new trial with the tainted evidence suppressed."

United States v. Lanoue (1^st Cir. 1995) 71 F.3d 966, came to same conclusion and held that if a statement was not disclosed at any time before the government uses it, or in enough time that the defense could make use of it, "a mistrial was the only appropriate remedy." (Id. at p. 978.)

The failure to disclose subverted the purpose of federal law, which was intended to facilitate the fair and efficient pre-trial determination of the admissibility of a defendant's statements. (Id. at p. 977.) Defendant would necessarily be prejudiced because the failure to disclose their statements would deprive them "the opportunity to effectively prepare for trial and to design an intelligent trial strategy." (See Alvarez, 987 F.2d at 85; United States v. Hemmer, 729 F.2d 10, 13 (1st Cir.), cert. denied, 467 U.S. 1218, 104 S.Ct. 2666, 81 L.Ed.2d 371 (1984); Gladney, 563 F.2d at 71 F.3d 966.)" "That the statement was not actually introduced in evidence does not show lack of prejudice. An improper question alone can require a mistrial or other potent remedy if it causes prejudice." (Id. at p. 978.)

In In re Grand Jury Matter (3^rd Cir. 1982) 683 F.2d 66, the government declined to affirm or deny the existence of an illegal wiretap during a grand jury proceeding and instead made an ex parte, in-camera presentation to the district court because of the on-going investigation. After the in-camera hearing the judge concluded that no unlawful electronic surveillance had occurred. Like petitioners, the contemnor was faced solely with a conclusion by the district court based on statements made by the Government. The District Court of Appeal held that an "ex parte, in-camera proceeding may be sufficient" in some instances regarding wiretap cases, but "only after an explicit denial has been made by the Government." (Id. at p. 67-69.)

While Petitioners believe such sealing is yet another attempt to conceal other wiretap operations, the procedures used violate Petitioners' rights even if they are in fact related to a confidential reliable informant, since petitioners are absolutely entitled to know the basis of claim of any privilege and must be given an opportunity to submit questions concerning the validity of the grounds for maintaining such confidentiality. (People v. Hobbs (1994) 7 Cal.4th 948, 973.)

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT EVIDENCE CODE SECTION 1040 CAN SHIELD A WIRETAP FROM THOSE PERSONS AGAINST WHOM DERIVITIVE EVIDENCE IS BEING INTRODUCED

The prosecution argues that the existence of a wiretap is susceptible of being shielded by the official privilege found in Evidence Code section 1040. Petitioners dispute this allegation not only because there is no authority for this proposition, but because it is clearly wrong. First, since the notice provisions of the wiretap law are constitutionally founded, any claim of privilege would always result in disclosure, since no claim of confidentiality could outweigh the need to comply with the constitutional duty to disclose. Secondly, the complete statutory scheme governing disclosure of wiretap information is inconsistent with, and precludes application of, the official governmental privilege. Thirdly, the fact of the existence of the wiretap is not ``information acquired in confidence,'' and thus cannot be shielded by the official privilege. Finally, since the federal wiretap statutes mandate state statutes at least as protective as the federal laws, any attempt to use the official information privilege to shield notice or disclosure is barred by the supremacy clause.

A. NOTICE AND DISCLOSURE ARE CONSTITUTIONALLY REQUIRED AND CANNOT BE AVOIDED

The People assert that the information regarding the federal wiretap was sealed and disclosure would have compromised that ongoing investigation. (Opposition p. 11.) They further allege that the use of in-camera proceedings to assert the governmental priviledge in Penal Code section 1040 and deny discovery pursuant to 1054.7 are appropriate to protect the secrecy of that wiretap. The People are wrong.

First, Evidence Code section 1040, subdivision (b), creates a "privilege to refuse to disclose official information, and to prevent another from disclosing official information" which may be claimed by a person "authorized" by that entity. It is doubtful that the federal authorities have authorized the Los Angeles District Attorney's Office to assert that the wiretap should not be disclosed to a criminal defendant against whom evidence derived from that wiretap is being introduced at a preliminary hearing.

Secondly, the privilege is available only under two circumstances, when disclosure is "forbidden by an act of the Congress of the United States or a statute of this state" or disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice. (Pen.Code §1040(b)(1)&(2).) The former is an absolute privilege and the later a conditional privilege if the court determines, in accordance with precise statutory standards, that disclosure is against the public interest. (Rubin v. City of Los Angeles (1987) 190 Cal.App.3d 560, 583; Pitchess v. Superior Court (1974) 11 Cal.3d 531, 540; Shepherd v. Superior Court (1976) 17 Cal.3d 107, 123.) In making the determination of whether disclosure is against public interest, the interest of the public entity as a party in the outcome may not be considered. (Evid. Code, § 1040, subd. (b)(2).)

Here, both state and federal law require disclosure of this information making the absolute privilege in subsection (b)(1) unavailable to the District Attorney. The only possible basis for the assertion of the privilege is that disclosure is "against the public interest." However, the right to notice, inventory, and disclosure is not only a statutory right, but a constitutional right.

"In United States v. Donovan, 429 U.S. 413, 429 n. 19, 97 S.Ct. 658, 669 n. 19, 50 L.Ed.2d 652 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. § 2518 (8)(d)." (Dalia v. United States (1979) 441 U.S. 238, 243; 99 S.Ct. 1682, 1688.)

Clearly infringement of that constitutional right be against the interest of the public, such a construction of the governmental privilege would make Penal Code section 1040 unconstitutional.

B. THE COMPLETE SCHEME OF DISCLOSURE IN THE WIRETAP LAW PRECLUDES USE OF THE OFFICIAL INFORMATION PRIVILEGE TO SHIELD WIRETAP DISCLOSURES

The Legislature of California has enacted a comprehensive scheme governing the use of wiretaps. That scheme includes specific provisions governing notice and disclosure of wiretapping. General reporting provisions of the number of wiretaps and their nature and frequency is required by 18 USC § 2519 and Penal Code section 629.62. The specific disclosure requirements for notice of the wiretap law are found in 18 USC § 2517 (8) and Penal Code section 629.68.

The Legislature also mandated disclosure of any wiretapping where evidence ``derived'' from the wiretap is used in evidence at trial production is required at least 10 days before the trial, hearing, or proceeding. (Pen. Code § 629.70; see also 18 USC § 2517.)

These provisions evince a legislative intent to enact a comprehensive scheme governing notice and disclosure of interceptions done during wiretapping. It is the position of People that all these provisions may be trumped by use of the official governmental privilege, Evidence Code section 1040. (Ret., pp. 32-37.) People treats Evidence Code section 1040 as an ultimate trump card, playable at the government's whim, to block disclosure otherwise expressly mandated by several quite clear statutes.

The wiretap statutes enact a quite specific scheme governing notice. The fact that there is a general official information privilege cannot mean that the carefully drafted, narrow wiretap statutes requiring notice can be nullified by the general information privilege. Such a construction would render the notice provisions of the wiretap statutes nugatory; this should be avoided:

``We do not presume that the Legislature performs idle acts, nor do we construe statutory provisions so as to render them superfluous. (People v. Craft (1986) 41 Cal.3d 554, 560 [224 Cal.Rptr. 626, 715 P.2d 585]; Gates v. Salmon (1868) 35 Cal. 576, 587.) The whistleblower statute was a legislative expression intended to encourage and protect the reporting of unlawful governmental activities, and to effectively deter retaliation for such reporting. The Legislature clearly intended to afford an additional remedy to those already granted under other provisions of the law; otherwise section 19683 would be rendered meaningless. (Cf. Western Oil & Gas Assn. v. Monterey Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408 [261 Cal.Rptr. 384, 777 P.2d 157].)'' (People v. Tanner (1979) 24 Cal.3d 514, 522.)

Moreover, the specific statutes control over the general, even where the two might otherwise overlap. ``A specific provision relating to a particular subject will govern a general provision, even though the general provision standing alone would be broad enough to include the subject to which the specific provision relates. (Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505].)'' (People v. Tanner, supra, 24 Cal.3d 514, 521.)

C. THE EXISTENCE OF A WIRETAP IS NOT

"INFORMATION ACQUIRED IN CONFIDENCE,"

AND THUS CANNOT BE SHIELDED BY THE OFFICIAL PRIVILEGE

The second flaw in the People's argument is that the fact of the existence of a wiretap cannot qualify as ``information acquired in confidence,'' 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 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.)

Thus, not everything the government wishes to keep secret can be shielded by the official privilege; only information ``information acquired in confidence'' can form the basis of a claim of privilege. It should be noted that petitioners are unaware of case applying the official privilege to wiretaps. Even the prosecution is forced to admit that no California case has found the privilege applicable to wiretaps. However, People argues that analogous case law supports application of the privilege to wiretaps.

Moreover, as shown above, the federal wiretap statutes require notice and disclosure. (18 USC § 2519; 18 USC § 2517 (8).) Even assuming Penal Code section 1040 allowed concealment of the existence of a wiretap, it would be preempted by federal wiretap statute's mandates.

"Although defendants relied exclusively on federal law at trial, the Court of Appeal also considered defendants' state law claims based on the California Privacy Act (Pen. Code, §§ 631, 632). State law, however, cannot be less protective than the federal Act. (United States v. McKinnon (1st Cir. 1983) 721 F.2d 19, 21, fn. 1.)'' (People v. Otto (1992) 2 Cal.4th 1088, 1092.)

The underlying rationale of the preemption doctrine is that the supremacy clause invalidates state laws that interfere with or are contrary to federal laws. (Chicago & N. W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 317 [67 L.Ed.2d 258, 265, 101 S.Ct. 1124].)'' (Smith v. County of Santa Barbara (1988) 203 Cal.App.3d 1415, 1422.)

III

THERE IS NO AUTHORITY FOR THE PROPOSITION THAT THE PEOPLE MAY WITHHOLD WIRETAP EVIDENCE

The Court of Appeal cites Taglianetti v. United States (1969) 394 U.S. 316, apparently for the proposition that in-camera proceedings are appropriate "to address various wiretap issues." (Opposition p. 14.) While there may well be some situations where in-camera hearings are appropriate with regards to issues regarding a wiretap operations, neither cases stands for the proposition that a prosecutor may deny disclosure to a defendant whose conversations have been intercepted. That right is absolute.

In fact, the appellants involved in Taglianetti was actually given notice of the existence of a wiretap. Under Federal law, it is left to the discretion of the court whether persons who were intercepted but not named in warrant should be provided notice. The People are required to provide the court with all the information regarding those persons so the court may make an intelligent decision on whether the interests of justice would require the People to notice, one of is the prosecution of criminal charges as a result of the interception. (United States v. Donovan, supra, 429 U.S. 413, 439, fn. 26, 97 S.Ct. 658, 50 L.Ed.2d 652.)

Taglianetti explains why Alderman and like cases require disclosure:

"[A]n adversary proceeding and disclosure were required in those cases, not for lack of confidence in the integrity of government counsel or the trial judge, but only because the in camera procedures at issue there would have been an inadequate means to safeguard a defendant's Fourth Amendment rights." (Id. At p. 1100-1101, emphasis added.)

For that express reason the court in Taglianetti held that the defendant in that case was "entitled to see a transcript of his own conversations" but the in-camera proceeding could be used with regards to other records requested by the defendant and to ensure the accuracy of the prosecutor's claims. (Id. At p. 1100-1101, emphasis added.)

B. NOTICE AND DISCLOSURE PRIOR TO THE INTRODUCTION OF WIRETAP DERIVATIVE EVIDENCE CANNOT BE WAIVED BY THE COURT

While Penal Code section 629.70 provides that the 10-day period may be waived if the judge finds that it was not possible to furnish the party with the above information 10 days before the trial, hearing, or proceeding, and the party would not be prejudiced by the delay, there is no provision in either the state and federal wiretap law for waiver of the requirement to furnish the information.

Respectfully submitted,

MICHAEL P. JUDGE, PUBLIC DEFENDER

OF LOS ANGELES COUNTY, CALIFORNIA

Robert E. Kalunian, Assistant Pubic Defender Lawrence M. Sarnoff, Division Chief

Albert J. Menaster, Deputy in Charge Appellate

Kathy Quant, Deputy Public Defender

(State Bar No. 118603)

By__________________________________

KATHY QUANT

Deputy Public Defender

Attorneys for Petitioner