BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1010 (Furutani) 0
As Amended May 19, 2011
Hearing date: June 28, 2011
Penal Code
MK:mc
LAW ENFORCEMENT: COMMUNICATIONS
HISTORY
Source: Los Angeles City Attorney's Office
Prior Legislation: AB 1884 (Spitzer) - vetoed 2004
Support: California District Attorneys Association; San Diego
City Attorney; League of California Cities; Better
Business Bureau; Los Angeles County District Attorney;
California Consumer Affairs Association
Opposition:California Attorneys for Criminal Justice; American
Civil Liberties Union; California Public Defenders
Association
Assembly Floor Vote: Ayes 42 - Noes 13
KEY ISSUE
SHOULD CITY ATTORNEYS WITH THE AUTHORITY TO PROSECUTE MISDEMEANORS
BE AUTHORIZED TO OVERHEAR OR RECORD A CONVERSATION?
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PURPOSE
The purpose of this bill is to give city attorneys prosecuting
misdemeanors the ability to record conversations.
Existing law declares legislative intent to protect the right of
privacy of the People of California and recognizes that law
enforcement agencies have a legitimate need to employ modern
listening devices and techniques in the investigation of
criminal conduct. (Penal Code § 630.)
Existing law prohibits wiretapping, eavesdropping, using
electronic devices to record or amplify a confidential
communication, and intercepting/recording cellular radio
telephone transmissions. (Penal Code §§ 631, 632, 632.5, 632.6,
and 632.7.)
Existing law exempts from the above provisions, the Attorney
General, any district attorney, specified peace officers, and
any person acting pursuant to the direction of a law enforcement
officer acting within the scope of his or her authority from
overhearing or recording any communication that they could
lawfully overhear or record prior to the effective date of Penal
Code section 633. (Penal Code § 633.)
Existing law provides that with the consent of the district
attorney of the county, the city attorney of any general law or
chartered city within the county may prosecute any misdemeanor
committed within the city arising out of a violation of state
law. (Government Code § 41803.5(a).)
Existing law provides that in any case in which the district
attorney is granted any powers or access to information with
regard to the prosecution of misdemeanors, this grant of powers
or access to information shall be deemed to apply to any other
officer charged with the duty of prosecuting misdemeanor charges
in California. (Government Code § 41803.5(b).)
This bill provides that nothing in the laws prohibiting
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eavesdropping prevents city attorneys prosecuting on behalf of
the people of the State of California under section 41803.5 of
the Government Code or any person acting pursuant to the
direction of those city attorneys acting within the scope of his
or her authority, from overhearing or recording any
communication that they could lawfully overhear or record.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
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2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the author:
The ability to quickly mobilize an undercover
investigation is essential to successful fraud and
scam prosecution. Equipped with a hidden camera,
fraud investigators make purchases and identify
sellers in a myriad of cases punishable as felonies
and misdemeanors, including sales of lead-tainted
jewelry, loan modification schemes targeting elderly,
phony talent auditions for children, unlicensed school
bus drivers, moving companies misrepresenting their
fees, and notarios who falsely promise to help persons
obtain immigration documents, among others.
Current law (Penal Code §633) permits peace officers,
the Attorney General and all district attorneys to
record communications for both felony, misdemeanor and
infraction investigations. However, City Attorney
prosecutors are not on this list despite the authority
for select City Attorneys to prosecute misdemeanors.
Under existing law, Los Angeles, San Diego and other
city prosecutors must delay their fraud investigations
by obtaining permission from those police and
prosecuting agencies whom Penal Code §633 permits to
record. This process unnecessarily burdens those
agencies, making them liable for oversight.
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Additionally, the wait for approval may take several
days or even weeks. Because of this delay, the City
Attorney offices often are unable to pursue leads they
receive about fraudulent businesses that set up shop
temporarily.
The City of Los Angeles has a population of
approximately 4 million and an office of nearly 250
prosecutors. It is the third largest prosecuting
office in the State in terms of the population it
represents (trailing only the Attorney General and Los
Angeles County.) The City of San Diego has a
population of approximately 1.3 million, and the San
Diego City Attorney ranks ninth in the State in terms
of population it represents. These cities and others
do not have explicit Penal Code §633 authority to
record communications for misdemeanor prosecution.
Though a 1996 Attorney General Opinion concluded that
Government Code §41803.5(b) grants City Attorney's the
same power to overhear or record conversations, the
ambiguity created by the absence of language in Penal
Code §633 has caused City prosecutors to refrain from
using these tools for fear of incurring civil
liability.
Assembly Bill 1010 codifies the Attorney General's
1996 opinion by specifying that prosecuting city
attorneys may overhear and record communications.
Assembly Bill 1010 provides city attorney prosecutors
with the same investigative tools as currently
permitted all other prosecuting agencies in the State,
many of whom are substantially smaller in terms of
population they represent.
Assembly Bill 1010 does not expand these investigative
tools to any class of crimes that are not already
included in existing law.
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There are thirteen City Attorneys in the state that
are allowed to prosecute misdemeanor offenses. They
should be allowed to use the same investigative tools
to properly fulfill their duties as all other
prosecuting agencies.
2. Existing Law Prohibits Unlawful Eavesdropping
Penal Code Section 631 et seq. sets forth a comprehensive
statutory scheme protecting the right of privacy by prohibiting
unlawful wiretapping and other forms of illegal electronic
eavesdropping. Unless a specific exception applies, persons may
not intercept, record, or listen to confidential communications
whether on a conventional, cordless, or cellular telephone. A
significant exception is described in Penal Code section 633.
The Attorney General, any district attorney, specified peace
officers, and any person acting pursuant to the direction of a
law enforcement officer may lawfully overhear or record certain
communications. For example, a peace officer may authorize an
informant to record conversations relating to purchasing or
selling narcotics. The current law enforcement exemption does
not include city attorneys prosecuting state law misdemeanor
cases.
3. 1996 Attorney General Opinion
In 1996, the San Diego City Attorney requested an opinion from
the Attorney General whether the designation "district
attorney," as used in Penal Code section 633 with respect to the
overhearing or recording of conversations, included city
attorneys who prosecute misdemeanor cases. The Attorney General
concluded that the relevant Penal Code provision does not
include city attorneys who prosecute misdemeanor cases.
However, when prosecuting misdemeanor charges, such attorneys
have the same powers granted to district attorneys to overhear
or record conversations pursuant to Government Code section
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41803.5. (Ý1996] 79 Op. Atty. Gen. 221.)
Government Code section 41803.5(b) provides: "in any case in
which the district attorney is granted any powers or access to
information with regard to the prosecution of misdemeanors, this
grant of powers or access to information shall be deemed to
apply to any other officer charged with the duty of prosecuting
misdemeanor charges in California, as authorized by law." The
Attorney General opined that because a designated city
prosecutor may have extensive prosecutorial duties similar to
those of a district attorney, the need to obtain information to
facilitate misdemeanor prosecutions is the same. The clear
intent of the Legislature in enacting
Government Code Section 41803.5 was to give city attorneys "the
same powers and informational access as district attorneys
without the necessity of changing each statutory grant of
authority - such as contained in Section 633."
4. Support
The Los Angeles City Attorney states:
Under the current law, prosecuting city attorneys must
first seek authority from the district attorney to
record public conversations in the courts of an
investigation. This authorization can take days if
not weeks, through no fault of the district attorney's
office. The unnecessary delay can seriously hamper
cases that rely on timely investigations and, as a
result, victims are denied timely justice. AB 1010
will eliminate the unnecessary burden placed on
district attorney offices to authorize and supervise
city attorneys that request permission to record
public conversations.
To be clear, this proposed change will not reverse an
earlier legislative policy decision to specifically
exclude city attorneys. Rather, Penal Code Section
633 predates the authorization given to California
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city attorneys to prosecute state misdemeanors. The
purpose of this bill, therefore, is to bring Penal
Code Section 633 up-to-date with current law
enforcement practices and to permit city attorney
prosecutors more efficient and effective use of an
investigative tool they already use on a regular
basis.
The San Diego City Attorney further notes:
The Consumer & Environmental Protection Unity of my
office investigates and prosecutes crimes against
consumers and the environment. We are the agency
responsible for investigating crimes of false
advertising and many theft cases based upon consumer
transactions. I have two investigators in this unit
who routinely pose as consumers and respond to
advertisements about which we have received
complaints. It is critically important in these cases
to capture exactly what is said in these conversations
because the words of the suspect are the criminal act.
If the conversation is not recorded, then the judge
or jury who hears the case will hear from two
witnesses reporting the conversation differently.
Without a recording of the conversation, it is
extremely difficult to prove a false advertising or
theft by false pretense case beyond a reasonable
doubt.
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SHOULD CITY ATTORNEYS THAT PROSECUTE MISDEMEANORS BE PERMITTED
TO RECORD CONVERSATIONS?
5. Opposition
According to the American Civil Liberties Union:
We do not believe the authority to engage in
eavesdropping should be extended. Restrictions on the
use of eavesdropping apparatus were originally enacted
to ensure that such activities would be undertaken
only in absolutely justifiable situations and under
strict control. We have consistently opposed all
previous efforts to expand this authority.
If an investigation is of sufficient importance as to
merit electronic eavesdropping, these attorneys should
seek the cooperation and assistance of those agencies
which presently have the authority to do so. Creating
further encouragement and incentive to engage in this
practice is inconsistent with the legitimate
expectation of privacy surrounding confidential
communication.
California Attorneys for Criminal Justice further argue:
Current eavesdropping statutes authorize law
enforcement entities that have existing powers to
either investigate and/or prosecute felony offenses.
These offices receive specialized training on the
highest level of crimes and therefore possess a unique
level of expertise. A City Attorney's office is not
authorized to handle felony cases and therefore is not
required to undergo the same training as the office of
the Attorney General or county District Attorney.
In recent years there have been multiple attempts to
enhance the authority of city attorney offices. While
we respect the role of a City Attorney, it is not
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authorized to handle felony cases and should be
treated accordingly.
SHOULD CITY ATTORNEYS BE TREATED DIFFERENTLY THAN OFFICES THAT
PROSECUTE AND INVESTIGATE FELONIES?
6. Prior Legislation
AB 1884 (Spitzer) 2004 was heard in Senate Public Safety and
failed passage on June 1, 2004. It was then granted
reconsideration. When it was heard again on June 22, 2004, it
had been narrowed to allow for the city attorneys to record
conversations only when they are investigating violations of
laws that protect consumers in their interactions in the
marketplace for the furnishing of goods and services. This was
the version of the bill that went to the Governor and was
vetoed.
The Governor's veto message stated:
I strongly support the need to provide law enforcement
with as many tools as necessary to adequately protect
the citizens of California. The process in current
law ensures that if a prosecutor decides there is a
need to broach a person's privacy in an investigation,
there is a process in place which balances the need of
the investigation against a person's right to privacy.
If an investigation is of sufficient importance as to
merit electronic eavesdropping, a city attorney may
seek the cooperation and assistance of those agencies
which presently have the authority to do so.
City attorneys who prosecute misdemeanor cases are a
vital component in the criminal justice system. While
this bill would eliminate one extra step they
currently must go through to obtain permission to
record and use communications in an investigation, it
is not a process that should be streamlined.
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