Opinion
F078489 F078597
03-08-2021
THE PEOPLE, Plaintiff and Respondent, v. JOSE ARIEL HERNANDEZ, JR., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent, v. DAVID ZAMORA, Defendant and Appellant.
Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Jose Ariel Hernandez, Jr. Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant David Zamora. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. Kimberly R.H. Lewis, District Attorney, Nicole A. Silveira and Kathryn C. Gates, Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and Respondent.
MODIFICATION OF OPINION [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion herein filed on March 8, 2021, be modified as follows:
1. On page 1, in the second paragraph below the caption, change "Charles M. Bonneau" to "Charles M. Bonneau, Jr.".
This modification does not effect a change in the judgment.
SNAUFFER, J. WE CONCUR: HILL, P.J. DETJEN, J. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CR-02358A)
OPINION
(Super. Ct. No. 15CR-02358B) APPEAL from judgments of the Superior Court of Merced County. Ronald W. Hansen, Judge. Charles M. Bonneau, under appointment by the Court of Appeal, for Defendant and Appellant Jose Ariel Hernandez, Jr. Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant David Zamora. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent. Kimberly R.H. Lewis, District Attorney, Nicole A. Silveira and Kathryn C. Gates, Deputy District Attorneys, as Amicus Curiae on behalf of Plaintiff and Respondent.
-ooOoo-
Appellants Jose Hernandez and David Zamora were convicted of two counts of murder for their roles in a shooting in Winton. Most of the evidence directly implicating them in the shooting came from two sources: A law enforcement wiretap intercepting communications to and from Zamora's phone, and an accomplice's out-of-court interview with law enforcement investigators.
Hernandez and Zamora raise several claims on appeal. First, they argue their motion to suppress the wiretap evidence was erroneously denied. Next, they raise several arguments relating to a post-trial amendment to Penal Code section 188, which now prohibits imputing "[m]alice ... based solely on ... participation in a crime." Finally, they contend their constitutional right to confrontation was violated by the admission of the accomplice's out-of-court statement into evidence.
All undesignated references are to the Penal Code.
The Attorney General concedes the confrontation error requires reversal. We agree. For reasons stated below, we also conclude the court erred in denying the motion to suppress evidence. We will reverse the judgment and remand for further proceedings.
The district attorney filed a separate amicus brief contesting the confrontation claim.
Although Hernandez and Zamora's remaining claims are moot, it appears the section 188 issue was recently resolved in the negative. (See People v. Gentile (2020) 10 Cal.5th 830, 851-852 ["The ameliorative provisions" relating to the section 188 amendment "do not apply on direct appeal to nonfinal convictions obtained before the law became effective."].)
BACKGROUND
Charges
Hernandez and Zamora were charged with two counts of murder (§ 187). The first count included allegations the murder was willful, deliberate, and premeditated (§ 189), gang-related (§ 186.22, subd. (b)), committed by discharging a firearm (§ 12022.53, subd. (d)), and intentional and committed to benefit the gang while actively participating in a gang (§ 190, subd. (a)(22)). It was also alleged Zamora was previously convicted of a strike offense (§§ 667, subds. (b)-(j) & 1170.12, subds. (c)-(g)).
Trial Evidence
A shooting occurred in Winton around 9:00 p.m. one night. A witness near the shooting testified he heard several shots, looked out the window, and saw one final shot fired. A car then drove up and a person exited who assisted the shooter into the vehicle before driving off. The witness believed the shooter was injured because the shooter was "slumped over."
Immediately thereafter, a woman in a nearby apartment called 911 seeking aid for a person wounded by a gunshot. That person ultimately did not survive.
The woman called 911 to help a man she referred to as her "husband" even though they were not legally married. She subsequently explained that her wounded husband entered the home with a firearm that she later hid under the bathroom sink. She did not disclose the firearm's existence to investigators until the following morning.
When law enforcement arrived on scene, they located two distinct groupings and types of expended ammunition. This evidence was consistent with two people shooting at one another.
Meanwhile, local law enforcement had been conducting a wiretap investigation into local Norteño criminal street gangs. Zamora's phone eventually became part of the investigation and investigators actively monitored his phone communications in real time. The following intercepted communications are particularly relevant.
Five days before the shooting, Zamora inquires over the phone about procuring a firearm. At 8:52 p.m. the night of the shooting, Zamora is heard saying, "Hey, I'm in Winton, but I'll be back real soon." He acknowledges he is with his brother Jose, known as Sweet Tooth.
Ten minutes later, Zamora asks a person to meet him at the hospital because "his brother ha[d] been shot and he wasn't breathing." About 14 minutes later, Zamora exclaims, "My brother, I don't know if he's dead or not ...."
In the next call, Zamora says, "The homie and the homie's mom took [my brother] to the hospital." He adds, "[W]e had this shit. What the fuck?" He believes law enforcement is looking for him and his vehicle. Minutes later, Zamora tells an accomplice, B., to "get rid of the shit, your clothes, everything ...."
B. was a minor during the incident and apparently adjudicated a ward of the state in a separate proceeding.
About four minutes later, Zamora is heard "trying to get a ride ...." In the next call, he says, "We went out to go do a little dirt in Winton." Thirty minutes later, Zamora and B. discuss destroying potential gunshot residue evidence. In the last call, Zamora discusses an ongoing vehicle pursuit between law enforcement and the vehicle he was driving at the time of the shooting.
An investigator explained "dirt" meant "[t]hey were going to do a crime."
Zamora was not driving the vehicle during the pursuit. Although there is nothing in the record explaining the exact circumstances, he must have transferred the vehicle to another person after the shooting but before the pursuit.
Law enforcement, listening in on the calls, arrived at the hospital where they expected to encounter Zamora's brother; they did, and they also encountered Hernandez. They seized Hernandez's phone and later extracted its contents.
Text messages from Hernandez's phone indicated the following. A little more than an hour before the shooting, Hernandez sought "the thing to mob ...." He then explains he is with "Sweet and David and [B.]." A few minutes later, Hernandez was warned not to take anyone with him, especially not someone without a "gun."
Based on continued wiretap interceptions, law enforcement believed B. "had fled from the hospital" and towards a nearby grocery store, "looking for somebody to come pick him up, [and] get him out of the area." Law enforcement responded to the grocery store and took B. into custody about five minutes later.
Approximately an hour later, the vehicle pursuit ended when a subject, not implicated by evidence in the shooting, was taken into custody. A forensic examination of the vehicle revealed Zamora's deceased brother's blood in the car, along with Hernandez's and B.'s DNA. Hernandez's and B.'s fingerprints were also found on or inside the vehicle.
A few days later, B. was interviewed by investigators. The interview was played to the jury in its entirety. The interview is best summarized as follows: B., Hernandez, Zamora, and Zamora's brother went to Winton to "hunt" Sureños. B. defined hunting as shooting and killing people.
The interview was played after B. testified.
According to one witness at trial, Norteños and Sureños are rivals.
At trial, B. testified in the jury's presence to his name, age, and date of birth. But he then answered "[n]o comment" to nearly 300 other questions on direct and cross-examination.
B. also testified outside the jury's presence on separate occasions to determine whether he would claim a privilege and then later to ascertain why he was not directly answering questions. The court first determined B. had no privilege against self-incrimination because he already admitted murder allegations in a juvenile proceeding and the time to appeal had expired. The court admonished B. to not invoke the privilege in front of the jury. Later, the court's inquiry into B.'s answers proved futile:
Q: "[I]s there some reason why your answer to every question was 'No comment'?"Thereafter, cross-examination commenced in the jury's presence.
A: "No comment."
Q: "Is it because you don't remember ...?"
A: "No comment."
Q: "Is there - did anyone suggest to you that this should be your response to every question?"
A: "No comment."
Verdict and Sentence
Hernandez and Zamora were convicted as charged. Each was sentenced to serve life without the possibility of parole in prison, plus 15 years to life and 30 years to life, respectively.
DISCUSSION
We acknowledge the confrontation error could technically render the wiretap issue moot. After reviewing the record and authorities cited by each party including the district attorney's amicus brief, we are inclined to accept the Attorney General's concession and find reversible error. The facts and law appear to fall directly within the errors described in Douglas v. Alabama (1965) 380 U.S. 415 and People v. Rios (1985) 163 Cal.App.3d 852.
Notably, the district attorney's reliance on People v. Homick (2012) 55 Cal.4th 816 is misplaced because the witness there " 'testified at length at trial and was subjected to lengthy cross-examination ....' " (Id. at p. 861.) Nonetheless, we believe properly resolving this appeal requires us to reach the merits of the wiretap issue. Two reasons inform our belief.
First, the wiretap issue is likely to recur should the People seek to again introduce the evidence at a retrial. (See People v. Jones (1996) 13 Cal.4th 535, 547-550 [addressing "certain issues that appear likely to recur upon retrial" although technically moot].) Both the People and Hernandez urge us to decide the merits on this ground.
Second, the issue is all but certain to recur at a retrial lest we resolve it. This is so because "determination of a [section] 1538.5 motion at a special hearing in the superior court—whether in the defendant's or in the People's favor—deprives that court of jurisdiction to reconsider the matter ...." (Madril v. Superior Court (1975) 15 Cal.3d 73, 77.) "Any judicial error occurring at" such hearing is "reviewable only by petition for extraordinary relief ... or on appeal from a conviction following trial." (People v. Superior Court (Edmonds) (1971) 4 Cal.3d 605, 611, fn. 7.)
In this case, the trial court already denied the motion on the merits. A petition for extraordinary relief raising the wiretap issue was denied in this court on November 30, 2017—a fact we judicially notice pursuant to Evidence Code section 452, subdivision (d). Thus, there appears no avenue to exclusion in the trial court unless we determine the merits. For all these reasons, we conclude we must resolve the merits of the wiretap issue.
Hernandez and Zamora contend the wiretap orders in this case were improper because the application underlying the initial order was not made by a statutorily authorized person. The People concede error but argue, consistent with the trial court's ruling, suppression is not warranted because the statute's purpose was nonetheless achieved.
The Attorney General and amicus district attorney, collectively.
As explained below, the error in this case requires suppression and the trial court erred in concluding otherwise. We will reverse the judgment and remand for further proceedings.
A. Trial Court Proceedings
The initial wiretap application in this case was made in early 2015. A little more than a year later, the applicant wrote a letter alerting various defense counsel he was not "act[ing] as the district attorney during the relevant time period of the wiretap applications." Hernandez and Zamora subsequently moved to suppress "[a]ll evidence accumulated by law enforcement officers" from wiretapping Zamora's phone because section 629.50 authorizes only the district attorney or the person acting as district attorney to apply for wiretap orders.
The applicant was a supervising deputy district attorney.
The district attorney's office filed an opposition in writing. In a declaration attached to the opposition, the district attorney stated his "duties and obligations frequently take [him away] from [his] physical office ... [¶] When [he is] absent from [his] physical office, [he] continue[s] to act as District Attorney of Merced County. This is true when [he is] away from the office on personal matters. [¶] At no time ha[s he] relinquished [his] Constitutional Office as the District Attorney of Merced County. This has been true whether [he is] out of the County, out of the State, or out of the Country."
The district attorney testified about the circumstances surrounding the wiretap application in this case at a suppression hearing in a different case involving the same issues. His testimony at the hearing revealed there was no procedure in place to notify subordinates about his absence and no procedure for subordinates to seek assistance within the office while he is absent. He confirmed the wiretap applicant was not acting as district attorney. He explained he has "never designated anyone to act on [his] behalf as the District Attorney of Merced County." At the time of the application, the applicant was subordinate to two chief deputy attorneys. Nonetheless, the district attorney did in fact specifically authorize the applicant to sign wiretap applications in his absence.
In that case, a different panel of this court concluded the trial court erred in denying the motion to suppress evidence based on the identical applicant issue. (People v. Thomas (Sept. 9, 2019, F076291 [nonpub. opn.].) Hernandez asks us to take judicial notice of that appellate case and we grant his request pursuant to Evidence Code section 452, subdivision (d).
The motion in this case was apparently submitted for decision based on legal argument and a transcript of the testimony offered in the other case, which included the opposition declarations as evidence. The same judge presided over each motion.
The district attorney also testified, to the best of his knowledge, he was absent the day the wiretap application was signed. He added two more people were designated, in a hierarchical fashion, to sign wiretap applications in his absence. The court found the district attorney was absent, and we take no position regarding the provisional designation of multiple people to sign wiretap applications. (Cf. People v. Munoz (2001) 87 Cal.App.4th 239, 244-245 ["successive designation" of judges to review wiretap applications appropriate where statute already permitted a solitary designee].)
The trial court ultimately denied the motion to suppress for the following reasons. It first identified four purposes behind the applicant-limiting provision. One, "[t]o ensure that a senior official reviewed applications and determined that the proposed intrusion on the target's privacy was warranted before electronic surveillance was authorized." Two, "[t]o centralize in a publicly responsible official subject to political process the formulation of policy regarding electronic surveillance." Three, "[t]o protect the general public from abuse from the awesome power of electronic surveillance." And four, "[t]o establish lines of responsibility that would lead to identifiable persons."
The court then concluded, "All of these goals were accomplished in the instant case. [The district attorney] established the policy and procedures for his office's involvement in [the investigation]. Of the three attorneys that were designated to apply for a wiretap, [the actual applicant] had the greatest knowledge, experience and training regarding the nature of the crimes and investigation in question. The goals of having a highly qualified official address wiretap applications was accomplished while keeping the elected official accountable for the process. [The district attorney] bears responsibility for the current wiretap law violation and that this violation risks nullifying the entire ... wiretap investigation."
B. Wiretap Law
" ' "California law prohibits wiretapping," ' " except as provided by statute. (People v. Leon (2007) 40 Cal.4th 376, 383.) Because the federal wiretap act ' "establishes minimum standards for the admissibility of evidence procured through electronic surveillance," ' and ' "state law cannot be less protective of privacy than the federal [wiretap] Act," ' California courts 'may look for guidance to cases under title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code sections 2510 to 2520 (federal wiretap act), "which 'provides a "comprehensive scheme for the regulation of wiretapping and electronic surveillance." ' " ' (Id. at p. 384; People v. Jackson (2005) 129 Cal.App.4th 129, 146-147 [(Jackson)].) In applying the California wiretap statute, we therefore look to both federal and California law." (People v. Sedillo (2015) 235 Cal.App.4th 1037, 1053; People v. Conklin (1974) 12 Cal.3d 259, 272 [states " '[are] free to adopt more restrictive legislation, or no legislation at all, but not less restrictive legislation.' "].)
"Any person in any trial, hearing, or proceeding, may move to suppress some or all of the contents of any intercepted wire or electronic communications, or evidence derived therefrom, ... on the basis that the contents or evidence were obtained in violation of the Fourth Amendment of the United States Constitution or of [Title 15, Chapter 1.4 of the Penal Code (§§ 629.50 through 629.98)]. The motion shall be made, determined, and be subject to review in accordance with the procedures set forth in Section 1538.5." (§ 629.72; Jackson, supra, 129 Cal.App.4th at pp. 145-146.)
"[E]vidence gained through a wiretap should be excluded under sections 629.72 and 1538.5 when the defendant has established the evidence was obtained in violation of the Fourth Amendment of the United States Constitution or the provisions of Title 15, Chapter 1.4 of the Penal Code (sections 629.50 through 629.98), the statutory provision violated was intended to play a central role in the authorization and execution of wiretaps and the People have failed to establish the statutory purpose was achieved in spite of the error. The good faith of the law enforcement officers preparing, approving or executing the wiretap order is not relevant in determining whether the evidence should be excluded." (Jackson, supra, 129 Cal.App. at p. 160.) "The truth-in-evidence clause (Cal. Const., art. I, § 13) does not apply to section 629.72." (People v. Roberts (2010) 184 Cal.App.4th 1149, 1168 (Roberts).)
"A good faith reliance on a court order is a complete defense to any civil or criminal action brought" against an individual for violating wiretap law. (§ 629.86.)
" ' "[W]hile we defer to the [trial] court's express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of the search [based] on the facts so found." ' " (Roberts, supra, 184 Cal.App.4th at p. 1171.) After carefully reviewing the record we conclude the wiretap evidence was obtained in violation of the wiretap law, the violated statutory provision was intended to play a central role in the law, and the People have not proven that statutory provision was achieved in spite of the error.
C. Statutory Violation
The statutory provision at issue is found in section 629.50. That section permits only the "Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or ... a district attorney, or the person designated to act as district attorney in the district attorney's absence" to apply to a judge for a wiretap order.
Whether the person applying for the wiretap order in this case was "designated to act as district attorney in the district attorney's absence" turns on statutory interpretation. The trial court found a violation because the applicant was not acting as district attorney for all purposes. That conclusion is not contested on appeal and we find the concession well taken.
In United States v. Perez-Valencia, the Ninth Circuit Court of Appeals held " 'the' attorney designated to act in the district attorney's absence—as § 629.50 specifies—must be acting in the district attorney's absence not just as an assistant district attorney designated with the limited authority to apply for a wiretap order, but as an assistant district attorney duly designated to act for all purposes as the district attorney of the political subdivision in question." (United States v. Perez-Valencia (9th Cir. 2013) 727 F.3d 852, 855 (Perez-Valencia).) We adopt this interpretation because it is consistent with the statute's plain language and the congressional and legislative histories underlying the wiretap laws. (See City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 616 [statute's "plain meaning" predominates unless "absurd consequences" result].)
The federal wiretap law outlined state wiretapping law. A Senate report issued prior to enacting the comprehensive federal wiretap law includes the following comments relating to state law:
"In most States, the principal prosecuting attorney of the State would be the attorney general. The important question, however, is not name but function. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. ... Where no such office exists, policymaking would not be possible on a statewide basis; it would have to move down to the next level of government. In most States, the principal prosecuting attorney at [the] next political level of a State, usually the county, would be the district attorney, State's attorney, or county solicitor. The intent ... is to centralize areawide law enforcement policy in him. ... Where there are both an attorney general and a district attorney, either could authorize applications, the attorney general anywhere in the State and the district attorney anywhere in his county. The proposed provision does not envision a further breakdown." (United States v. Giordano (1974) 416 U.S. 505, 522, fn. 11, emphasis added (Giordano).)Thus, an attorney with authority solely to apply for wiretap orders but not functioning as the "principal prosecuting attorney," as here, is simply inconsistent with controlling federal legislation. (See 18 U.S.C. § 2516(2) ["principal prosecuting attorney ... of any political subdivision ... may apply" for a wiretap order if authorized by state statute].)
California statutory history is in accord. The California wiretap law was originally enacted as the Presley-Felando-Eaves Wiretap Act of 1988. (Sen. Bill No. 1499 (1987-1988 Reg. Sess.) Stats. 1988, ch. 111, §§ 1, 2.) At that time, only the "Attorney General or Chief Assistant Attorney General, Criminal Law Division, or ... a district attorney" were authorized to apply for wiretap orders. (Ibid.)
The statutes were amended in 2002 to permit a person to act in the district attorney's absence. The amendment was consistent with the fact Congress, in enacting the original federal wiretap law, "simply could not have intended that local wiretap activity would be completely suspended during the absence or disability of" the district attorney. (Perez-Valencia, supra, 727 F.3d at p. 855; Assem. Bill No. 74 (2001-2002 Reg. Sess.) Stats. 2002, ch. 605, § 1.)
The 2002 amendment addressed this apparent oversight by explicitly permitting the district attorney to delegate the authority to apply for wiretaps "if" he or she is absent. (See Assem. Floor, Analysis of Assem. Bill No. 74 (2001-2002 Reg. Sess.) Aug. 22, 2002, p. 1 [amendment "[a]llow[s] a district attorney to designate another person having the authority to apply for an order to intercept an electronic communication if the district attorney is unavailable."].) In other words, only one person at a time within a district attorney's office is authorized by our Legislature to apply for wiretaps—the district attorney, or the person " 'running the office' " in his or her absence. (United States v. Perez-Valencia, supra, 744 F.3d at p. 604.)
The Ninth Circuit Court of Appeals clarified " 'running the office' " "does not include administrative matters involving budgets, personnel, or even the unique penalty decision in a capital case." (United States v. Perez-Valencia (9th Cir. 2014) 744 F.3d 600, 604.)
In conclusion, outside the Attorney General's Office, only the head of a district attorney's office is authorized to apply for a wiretap order. The application in this case is no exception.
D. Core Principle/Violation
The trial court found the applicant-limiting provision was intended to play a central role in the statutory scheme. The People wisely concede the same.
The United States Supreme Court has held "that the provision for pre-application approval [under federal law] was intended to play a central role in the statutory scheme ...." (Giordano, supra, 416 U.S. at p. 528.) Because state law is based on, and circumscribed by, federal legislation, the same conclusion is mandatory: The applicant-limiting provision "play[s] a central role in" California's wiretap law. (Ibid.)
E. Purpose Not Achieved
The remaining issue is the sole one in contention. Did the People prove the statutory purpose behind the limitation on authority to apply for wiretap orders was achieved notwithstanding error? Hernandez simply argues, "Since the wrong person made the application, the purpose of the law was not achieved." Zamora argues, "The purpose expressed in the statute is to limit the authority to seek wiretaps to individuals holding the specific positions described in the statute; that purpose is not met by allowing the District Attorney to delegate authority to any attorney whom the District Attorney deems worthy."
The People concede error and neither ask us "to condone the procedure at issue ... nor" do they argue "for a broad exception to the wiretap statute. Instead, [they ask us] to find that suppression is not warranted under the specific facts of this case." The People conclude the law's purposes were achieved because "[p]ersonal accountability for the application can easily be traced back to" the district attorney for two reasons. First, he "personally designated" the attorney that applied for the initial wiretap order. And second, he later "personally approved" applications for orders extending the duration and scope of the original wiretap order, thereby "assum[ing] personal responsibility" for the initial application and process. We disagree.
The United States Supreme Court found suppression appropriate under materially indistinguishable circumstances in Giordano, supra, 416 U.S. 505. There, under federal law, the United States Attorney General was empowered to delegate authority to apply for wiretaps to Assistant Attorneys General but instead delegated the authority to his Executive Assistant. (See id. at pp. 520-523.) The Supreme Court "conclude[d] ... that primary or derivative evidence secured by wire interceptions pursuant to a court order issued in response to an application which was, in fact, not authorized by one of the statutorily designated officials must be suppressed ...." (Id. at p. 508.)
In so holding, the Supreme Court explicitly rejected the notion that a properly authorized application to extend an initially improperly authorized wiretap order cures the error. The Supreme Court stated:
"[T]he authority [to apply for wiretaps] must be exercised before the application is presented to a ... judge. The suggestion that it is acceptable practice under [federal law] for the Attorney General's Executive Assistant to approve wiretap applications in the Attorney General's absence if the Attorney General subsequently, after a court order has issued, ratifies the giving of approval in the particular instance, either directly or by personally approving the submission of a further application for an extension order, as in this case, is wide of the mark. ... [T]he Attorney General's 'authority from Congress was to initiate wiretap applications, not to seek to have those terminated he found should never have been requested in the first place.' It would ill serve the congressional policy of having the Attorney General ... screen the applications prior to their submission to court to have the screening process occur after the application is made and after investigative officials have already begun to intercept wire or oral communications under a court order predicated on the assumption that proper authorization to apply for intercept authority had been given." (Giordano, supra, 416 U.S. at p. 523, fn. 12.)This conclusion applies with equal force to California law and forecloses the People's personal-assumption-of-responsibility argument.
Just as the Attorney General in Giordano, the district attorney here was permitted to delegate the authority to apply for wiretap orders but delegated that authority in a manner inconsistent with law. Adopting the exception the People urge would "permit the [district attorney] to delegate his authority at will," a finding "wholly at odds" with the law. (Giordano, supra, 416 U.S. at p. 523.)
We do acknowledge there are instances where substantial compliance with wiretap law excuses literal noncompliance. In a companion case decided the same day as Giordano, supra, the Supreme Court found suppression unwarranted where "the Attorney General ha[d] in fact authorized the application to be made, but the application and the court order incorrectly identif[ied] an Assistant Attorney General as the authorizing official ...." (United States v. Chavez (1974) 416 U.S. 562, 565 (Chavez).) In contrast, in that very case the Supreme Court approved suppression where a separate wiretap order was—as in Giordano—"authorized by the Attorney General's Executive Assistant, rather than by the Attorney General or any specially designated Assistant Attorney General, on whom alone [federal law] confers such power ...." (Id. at p. 570, emphasis added.) For the latter violation, there was no substantial compliance discussion.
We find ourselves bound by Giordano and Chavez. Indeed, a substantial compliance exception in circumstances similar to this case was persuasively rejected in United States v. King (9th Cir. 1973) 478 F.2d 494. The court there explained,
King involved essentially the same facts addressed in Giordano.
" 'If we should accept the Government's reasoning, there can be no assurance that in some future case, if the particular wiretap authorization proved politically embarrassing, the Attorney General would not then repudiate his '[designee].' The Attorney General would always be able to say with the benefit of hindsight that the subordinate had betrayed his confidence, acted beyond the scope of his responsibility, and the actions taken were not those of an agent. The [argument] destroys the concept of establishing identifiable individual responsibility at a certain level of government.' " (Id. at p. 505.)We agree with this rationale and reject substantial compliance in this case.
Accepting the People's request for a limited exception in this case presents a slippery slope upon which we will not slide. The federal wiretap law intended to " 'delineat[e] on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.' " (Halpin v. Superior Court (1972) 6 Cal.3d 885, 898.) A Senate report discussing proposed legislation prior to enactment of the federal wiretap law concluded, " 'Centralization will avoid the possibility that divergent practices might develop. Should abuses occur, the lines of responsibility lead to an identifiable person. This provision in itself should go a long way toward guaranteeing that no abuses will happen.' S.Rep. No. 1097, 90th Cong., 2d Sess., 96-97 (1968)." (Giordano, supra, 416 U.S. at p. 520.) Piecemeal exceptions erode uniformity by sanctioning divergent practices and effectively rewrite the law—a power vested not in this court but in the Legislature.
We find further support for our position by reference to another consideration important in the substantial compliance calculus: What effect did literal noncompliance have on the court order? (See Roberts, supra, 184 Cal.App.4th at pp. 1185-1186.) In this case it is not at all clear that the judge who issued the initial wiretap order would have done so had the judge known the applicant was not acting in compliance with the statute. In Chavez, supra, the Supreme Court noted the judge who signed the wiretap order "would have had ... greater hesitation in issuing the interception order ... if, as in Giordano, the correct information had revealed that none of the individuals in whom Congress reposed the responsibility for authorizing interception applications had" authorized the application. (Chavez, supra, 416 U.S. at p. 572.) Indeed, we would expect a judge to reject any wiretap application facially incompliant with the law.
Finally, we note congressional history underlying the federal wiretap law makes clear Congress was well aware of the need for strict compliance with the applicant-limiting provision. Professor G. Robert Blakey drafted the federal "provision limiting those who could approve applications for court orders ...." (Giordano, supra, 416 U.S. at pp. 517-518.) He explained its paramount importance at a House Committee hearing in 1967 in the following exchange:
" 'The Chairman. ... About the origin of the application, as I understand it, your bill provides it must be originated by the
Attorney General or an Assistant Attorney General. Am I correct in that regard?
" 'Professor Blakey. Yes, you are, Mr. Chairman.
" 'The Chairman. The application must be made by the Attorney General or an Assistant Attorney General.
" 'Professor Blakey. If I am not mistaken, the present procedure is before any wiretapping or electronic equipment is used now it is generally approved at that level anyway, Mr. Chairman, and I would not want this equipment used without high level responsible officials passing on it. It may very well be that in some number of cases there will not be time to get the Attorney General to approve it. I think we are going to have just (sic) to let those cases go, and that if this equipment is to be used it ought to be approved by the highest level in the Department of Justice. If we cannot make certain cases, that is going to have to be the price we will have to pay.' Hearings on Anti-Crime Program before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1379 (1967)." (Giordano, supra, 416 U.S. at pp. 518-519, emphasis added.)
Technology has progressed significantly since 1967. In 2006, our Legislature amended section 629.50 to allow district attorneys to submit wiretap applications by "facsimile copy ...." (Senate Bill No. 1714 (Reg. Sess. 2005-2006) Stats. 2006, ch. 146, § 1; § 629.50, subd. (c).) According to Senate bill analysis, the amendment addressed a concern from the Los Angeles County District Attorney who had chosen to "personally review[] each [wiretap] application." (Assem. Com. on Public Safety, Analysis of Sen. Bill 1714 (2005-2006 Reg. Sess.) June 13, 2006, p. 2.) The analysis concluded a "District Attorney is often unavailable due to his [or her] schedule. By allowing communication through facsimile the District Attorney could review and sign the wiretap requests in a timely manner." (Id. at p. 3.) This did not occur here.
California legislative history is similar. As noted ante, when the California wiretap law was originally enacted, the district attorney had no explicit power to delegate the authority to apply for wiretaps. The law was later amended to permit delegation only when the district attorney was absent. When that amendment was introduced in the Legislature, bill analysis explicitly acknowledged wiretapping required " 'strict adherence' " under federal law. (Sen. Com. on Public Safety, Analysis of Assem. Bill No. 74 (2001-2002 Reg. Sess.) June 25, 2002, p. 7, quoting United States v. Kalustian (9th Cir. 1975) 529 F.2d 585, 588.)
In sum, the initial wiretap application in this case did not comply with section 629.50. "[F]ailure to secure approval of one of [the statutorily authorized] individuals prior to making application for judicial authority to wiretap renders the court authority invalid ...." (Chavez, supra, 416 U.S. at p. 571.) The trial court erred in concluding otherwise and suppression is the appropriate remedy.
F. Prejudice
The People concede the wiretap error is prejudicial in conjunction with the confrontation error. !(HRB 42)! We accept the concession.
As the People put it, B.'s interview "filled in gaps in the evidence which cannot be dismissed as minor or unimportant in the context of the entire record." The wiretap evidence, too, was neither minor nor unimportant. Taken together, the erroneous admission of this evidence was unquestionably prejudicial.
DISPOSITION
Hernandez's request for judicial notice filed on October 28, 2020 is granted.
The judgments are reversed. The September 22, 2017 order denying the motion to suppress evidence is vacated. The trial court is directed to enter a new order granting the motion and conduct other proceedings consistent with this opinion.
SNAUFFER, J. WE CONCUR: HILL, P.J. DETJEN, J.