Opinion
F076291
09-09-2019
THE PEOPLE, Plaintiff and Respondent, v. RICHARD CHARLES THOMAS, JR., Defendant and Appellant.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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-02361A)
OPINION
APPEAL from a judgment of the Superior Court of Merced County. Ronald W. Hansen, Judge, and Jeanne Schechter, Commissioner. Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
Commissioner Schechter presided over the change of plea and sentencing hearings; Judge Hansen presided over all other hearings pertinent to this appeal.
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INTRODUCTION
Appellant Richard Charles Thomas, Jr., appeals the judgment of his conviction following a no contest plea. He contends the trial court erroneously denied his motion to traverse wiretap warrants and suppress evidence from four wiretaps because the individual who approved application for two of the wiretaps was not authorized to do so by statute, and the other two, though properly approved, were "fruit of the poisonous tree." We reverse with directions to the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Larry Morse II was the elected District Attorney of Merced County from 2006 through the relevant time at issue in this appeal. " 'Operation Red Right Hand' " was a wiretap investigation targeting violent crime and the sale of narcotics by Norteño criminal street gang members in Merced County. Morse assigned Supervising Deputy District Attorney Steven Slocum to be the "point of contact" for law enforcement during the operation. Morse also designated Slocum to sign wiretap applications in Morse's absence.
Slocum was sworn in as a deputy district attorney in April 2005 and was promoted to supervising deputy district attorney in February 2013. Slocum has experience in reviewing and prosecuting gang cases as well as serious and violent felonies.
During the operation, Morse signed wiretap applications when he was present in the office. Slocum signed when Morse was not present. On March 20, 2015, Morse was not in the office, and Slocum signed a wiretap application entitled, "WIRETAP NO. 2015-001/002," for the interception of target telephones 1, 2, and 3, numbers utilized by individuals other than appellant ("Wiretaps -001 and -002"). The affidavit in support of the application specified calls between the target telephones and appellant should be intercepted.
On March 24, 2015, Morse signed a wiretap application entitled, "WIRETAP NO. 2015-003 ," for the interception of target telephone 4, utilized by an individual other than appellant, and target telephones 5 and 6, both of which were numbers utilized by appellant ("Wiretap -003").
On March 27, 2015, Morse signed a wiretap application entitled, "WIRETAP NO. 2015-004 ," for the interception of target telephone 7, a number utilized by appellant ("Wiretap -004").
Appellant was charged by information with two counts of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); counts 1 & 2). As to both counts, it was further alleged appellant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members (id., § 186.22, subd. (b)(1)(C) [count 1] & (b)(1)(A) [count 2]), and had suffered two prior strikes (id., § 1170.12), a prior serious felony (id., § 667, subd. (a)), and two prison priors (id., § 667.5, subd. (b)). As to count 1, it was alleged that appellant personally inflicted great bodily injury (id., § 12022.7, subd. (a)).
In June 2016, Slocum became aware of the Ninth Circuit Court of Appeals' interpretation of the California wiretap statute, Penal Code section 629.50, subdivision (a), in U.S. v. Perez-Valencia (9th Cir. 2013) 727 F.3d 852 (Perez-Valencia). In Perez-Valencia, the Ninth Circuit held that where the statute authorizes "the person designated to act as district attorney in the district attorney's absence" to sign wiretap applications, that person must be acting as district attorney for all purposes. (Perez-Valencia, supra, at p. 855.) Slocum, while designated by Morse to sign wiretap applications, did not act as the district attorney at the time he signed the wiretap applications. Slocum sent a letter to defense counsel informing them of this discovery.
Penal Code section 629.50, subdivision (a) reads in pertinent part: "(a) Each application for an order authorizing the interception of a wire or electronic communication shall be made in writing upon the personal oath or affirmation of the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney, or the person designated to act as district attorney in the district attorney's absence, to the presiding judge of the superior court or one other judge designated by the presiding judge."
On June 12, 2017, appellant filed a motion to traverse Wiretaps -001, -002, -003, and -004 and suppress evidence. The motion was based on the ground that the warrants for Wiretaps -001 and -002 did not constitute probable cause for their issuance because Slocum was not authorized to apply for them and the warrants for Wiretaps -003 and -004, though authorized by Morse, were "fruit of the poisonous tree."
The trial court denied the motion, finding that though Penal Code section 629.50, subdivision (a) was violated, suppression was not required because the purpose of the statute was fulfilled.
The matter was set for trial, and before the jury was selected, appellant and the People reached a resolution. Appellant pleaded no contest to count 2 (Pen. Code, § 245, subd. (a)(4)) and admitted he committed the offense for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members within the meaning of Penal Code section 186.22, subdivision (b)(1)(A) and had suffered a strike prior under section 667, subdivision (d).
On September 7, 2017, appellant was sentenced to the upper term of four years, doubled to eight years due to the strike prior, plus the upper term of four years for the gang enhancement, for a total term of 12 years.
Appellant filed a notice of appeal on September 8, 2017, appealing the trial court's denial of appellant's motion to traverse the wiretap warrants and suppress evidence. On November 13, 2017, appellant filed a motion to construe the notice of appeal to include an appeal based on the sentence or other matters occurring after the plea. On December 4, 2017, this court filed an order granting the motion.
DISCUSSION
Appellant contends Wiretaps -001 and -002 were unlawfully authorized because they were signed by Slocum in violation of state and federal statutes and should have been suppressed. He also contends Wiretaps -003 and -004 should have been suppressed as "fruit of the poisonous tree," despite having been signed by Morse. The parties agree Wiretaps -001 and -002 were obtained in violation of Penal Code section 629.50, subdivision (a) but disagree as to whether suppression is required. We conclude Wiretaps -001 and -002, signed by Slocum, must be suppressed. However, we do not have enough evidence on this record to determine whether Wiretaps -003 and -004 were fruit of the poisonous tree or whether interception approved by those wiretap warrants would have been obtained pursuant to the independent source doctrine.
"In reviewing a trial court's ruling on a motion to suppress evidence we defer to the court's express or implied factual findings if they are supported by substantial evidence. We exercise our independent judgment to determine whether, on the facts found, a search conducted by wiretap was 'reasonable' under the Fourth Amendment and whether the wiretap was authorized and conducted in conformity with the federal and state statutes regulating such a search." (People v. Jackson (2005) 129 Cal.App.4th 129, 146, fns. omitted (Jackson).)
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (the Act) (18 U.S.C. § 2510 et seq.) "prescribes the procedure for securing judicial authority to intercept wire communications in the investigation of specified serious offenses." (United States v. Giordano (1974) 416 U.S. 505, 507 (Giordano).) "The purpose of the legislation . . . was effectively to prohibit, on the pain of criminal and civil penalties, all interceptions of oral and wire communications, except those specifically provided for in the Act, most notably those interceptions permitted to law enforcement officers when authorized by court order in connection with the investigation of [serious crimes]." (Id. at p. 514, fn. omitted.) The federal statutory scheme establishes minimum standards for the admissibility of wiretap evidence. State law cannot be less protective than the federal Act. (People v. Leon (2007) 40 Cal.4th 376, 384; People v. Otto (1992) 2 Cal.4th 1088, 1098.) "[W]e look to federal and California statutes, legislative history and case law in applying the California wiretap statute." (Jackson, supra, 129 Cal.App.4th at p. 147.)
All further references to a statute are to title 18 of the United States Code unless otherwise indicated.
Section 2516(1) specifies individuals who have authority at the federal level to apply for wiretaps. These individuals are: "The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division or National Security Division specially designated by the Attorney General." (Ibid.)
Section 2516(2) specifies individuals who have the authority to apply for wiretaps on the state level. These individuals are: "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications." (Ibid.)
California's statute authorizes the following individuals: "the Attorney General, Chief Deputy Attorney General, or Chief Assistant Attorney General, Criminal Law Division, or of a district attorney, or the person designated to act as district attorney in the district attorney's absence." (Pen. Code, § 629.50, subd. (a).)
The Ninth Circuit has interpreted "the person designated to act as district attorney in the district attorney's absence" (Pen. Code, § 629.50, subd. (a)) as required to "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." (Perez-Valencia, supra, 727 F.3d at p. 855.) In an opinion after remand, the Ninth Circuit qualified the word "all" to include "the routine standard daily functions of a prosecutor's office, which does not include administrative matters involving budgets, personnel, or even the unique penalty decision in a capital case." (U.S. v. Perez-Valencia (9th Cir. 2014) 744 F.3d 600, 604.)
The Second Appellate District in Jackson articulated the proper test to analyze a motion to suppress wiretap evidence based on a statutory violation:
"(1) Has the defendant established a violation of a provision of the wiretap law? If not, the motion is denied. (2) If a wiretap violation has been established was the provision violated one which 'was intended to play a central role in the statutory scheme[?]' If the provision was not intended to 'play a central role,' failing to comply with it will not render interceptions under the wiretap order unlawful and the motion is denied. (3) If the provision violated was central to the legislative scheme was the purpose of the provision achieved in spite of the error? If the purpose was achieved, the motion is denied. If the purpose was not achieved, the motion is granted." (Jackson, supra, 129 Cal.App.4th at p. 149, fns. omitted.)
Our review is focused solely on the third prong of the Jackson test. The dispositive issue in the present case is whether the "purpose" of Penal Code section 629.50, subdivision (a) is fulfilled only where a person expressly authorized by statute approves the wiretap application or if it may be fulfilled where an experienced prosecutor in a supervisorial role who can make an independent assessment of the application approves the application. We conclude the statutory and case law supports the former conclusion.
In Giordano the United States Supreme Court held that suppression is required when a person who is not authorized by section 2516(1) applies for a wiretap. The court stated that section 2516(1) "fairly read, was intended to limit the power to authorize wiretap applications to the Attorney General himself and to any Assistant Attorney General he might designate." (Giordano, supra, 416 U.S. at p. 514.) The court concluded: "We are confident that the provision for pre-application approval was intended to play a central role in the statutory scheme and that suppression must follow when it is shown that this statutory requirement has been ignored." (Id. at p. 528.)
At the time Giordono was decided, section 2516(1) only authorized the Attorney General and an Assistant Attorney General designated by him to apply for wiretaps. (Giordano, supra, 416 U.S. at pp. 507-508.)
Since the issue before us is a state application for wiretaps, we look to section 2516(2). The stated purpose of section 2516(2) is to:
"centraliz[e] . . . policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. . . . 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. . . . [¶] No applications may be authorized unless a specific State statute permits it." (Sen. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, pp. 2112, 2187, italics added.)As relevant here, the applicable state statute, Penal Code section 629.50, subdivision (a), only allows the district attorney or "the person designated to act as district attorney in the district attorney's absence." (Ibid., italics added.) The Perez-Valencia court's interpretation that the person designated pursuant to Penal Code section 629.50, subdivision (a) must be acting as the district attorney for all purposes is in line with the stated purpose of section 2516(2). Unlike section 2516(1), which allows delegation of the authority to apply for wiretaps, section 2516(2) and Penal Code section 629.50, subdivision (a), read together, only allow for one person on the county level, the district attorney, either elected or acting, to apply for wiretaps. The purpose of permitting the acting district attorney to apply for wiretaps in the district attorney's absence is to allow wiretap activity not to be " 'completely suspended during the absence or disability' " of the district attorney. (Perez-Valencia, supra, 727 F.3d at p. 855, citing U.S. v. Fury (2d. Cir. 1977) 554 F.2d 522, 527, fn. 4.) Here, Slocum was neither the elected nor acting district attorney and thus was not authorized to apply for wiretaps. Because the purpose of section 2516(2) and Penal Code section 629.50, subdivision (a) is that the authority to apply for wiretaps at the county level be centralized in the district attorney, either elected or acting, the evidence from the wiretaps applied for by Slocum must be suppressed.
Respondent asks us to take a broad approach and find that because Slocum was a high-ranking deputy with experience in gang prosecutions, the purpose of the statute was achieved. They distinguish Giordano from the present case by pointing out in Giordano the person who improperly applied for the wiretaps was an executive assistant to the Attorney General and did not appear to make any independent judgment over the decision whether to approve the application; whereas, in the present case, Slocum did exercise independent judgment. Respondent draws our attention to the general purposes the trial court identified in its application of the third prong of the Jackson test:
"1. To 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. U.S. v. Williams [(N.D. Ill. 1983)] 565 F[.]Supp. 353.
"2. To centralize in a publicly responsible official subject to political process the formulation of policy regarding electronic surveillance. U.S. v. Martinez [(9th Cir. 1978)] 588 F[.]2d 1227; U.S. v. Turner [(9th Cir. 1975)] 528 F[.]2d 143.
"3. To protect the general public from abuse from the awesome power of electronic surveillance. U.S. v. King [(9th Cir. 1973)] 478 F[.]2d 494.
"4. To establish lines of responsibility that would lead to identifiable persons. U.S. v. Vasquez [(C.D. Cal. 1974)] 387 F[.]Supp. 83."
We find the purposes of the statute the trial court identified are too general. Some of these stated purposes are not directly applicable because they refer to section 2516(1). (U.S. v. Williams (N.D. Ill. 1983) 565 F.Supp. 353, 368-369; U.S. v. Martinez (9th Cir. 1978) 588 F.2d 1227, 1233; U.S. v. Turner (9th Cir. 1975) 528 F.2d 143, 150; U.S. v. King (9th Cir. 1973) 478 F.2d 494, 505; U.S. v. Vasquez (C.D. Cal. 1974) 387 F.Supp. 83, 88.) We find this is a more significant distinction than the trial court does because section 2516(1) allows for delegation, whereas section 2516(2) does not. This is to say that Slocum's qualifications or whether he was "a senior officer" or "a publicly responsible official" are not relevant. If we were to follow the trial court's analysis, we would in effect be allowing delegation of the power to apply for wiretaps, subject to a trial or appellate court's assessment of the delegee's qualifications. Delegation is not permitted by section 2516(2) or Penal Code section 629.50, subdivision (a), and we decline to read it into the statutes.
Respondent also argues that when the Jackson factors are not completely determinative, we may consider whether the statute was " 'deliberately ignored; and, if so, whether there was any tactical advantage to be gained thereby,' " quoting U.S. v. Chun (9th Cir. 1974) 503 F.2d 533, 542. Though we do not see any evidence on the record that the district attorney's office "deliberately" ignored or attempted to gain a tactical advantage by violating the statute, we conclude the Jackson factors in this case are determinative; the purpose of the statute was not achieved in that a person authorized by statute did not approve the wiretap applications.
Appellant urges us to find that the evidence obtained through Wiretaps -003 and -004 must be suppressed as "fruit of the poisonous tree." (See Wong Sun v. United States (1963) 371 U.S. 471.) We cannot do so on this record, as the affidavits supporting Wiretaps -003 and -004 are not in the record in their entirety. Though we find Wiretaps -001 and -002 were illegally obtained because Slocum was not authorized to apply for them, Morse signed the applications for Wiretaps -003 and -004. The trial court must determine whether the independent source doctrine applies. That is, the court must determine whether probable cause supported Wiretaps -003 and -004 despite the evidence illegally obtained from Wiretaps -001 and -002. To do so, the court must excise all evidence obtained from Wiretaps -001 and -002 from the affidavit and determine whether probable cause existed to order Wiretaps -003 and -004. (See People v. Weiss (1999) 20 Cal.4th 1073.)
DISPOSITION
The judgment is reversed. The matter is remanded with directions to allow appellant to withdraw his plea of no contest. If appellant withdraws his plea, the trial court should reinstate the original charges contained in the second amended information, if the People so move. If appellant withdraws his plea, the trial court is directed to vacate its order denying the motion to traverse and to suppress Wiretaps -001 and -002. As to Wiretaps -003 and -004, the trial court is directed to excise information obtained from Wiretaps -001 and -002 from the application and the affidavit supporting the application for Wiretaps -003 and -004 and determine whether probable cause existed to order Wiretaps -003 and -004 and proceed accordingly. If appellant does not move to withdraw his plea within 30 days of the filing of the remittitur, the trial court is directed to reinstate the original judgment.
/s/_________
DE SANTOS, J. WE CONCUR: /s/_________
FRANSON, Acting P.J. /s/_________
PEÑA, J.