BILL ANALYSIS �
AB 1010
Page 1
Date of Hearing: April 26, 2011
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Ammiano, Tom, Chair
AB 1010 (Furutani) - As Introduced: February 18, 2011
SUMMARY : Authorizes city attorneys who prosecute misdemeanors
to overhear or record conversations without the knowledge of the
person being investigated. Specifically, this bill adds city
attorneys to the list of law enforcement entities granted an
exemption from illegal electronic eavesdropping, wiretapping and
electronic recording without the person's knowledge.
EXISTING LAW :
1)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 to investigate criminal conduct.
(Penal Code Section 630.)
2)Generally prohibits wiretapping, eavesdropping, and using
electronic devices to record or amplify a confidential
communication. Provides that any evidence so obtained is
inadmissible in any judicial, administrative, or legislative
proceeding. (Penal Code Sections 631, 632, 632.5, 632.6, and
632.7.)
3)Exempts the Attorney General, any district attorney, specified
peace officers such as city police and county sheriffs, and a
person acting under the direction of an exempt agency from the
prohibitions against wiretapping and other related activities
to the extent that they may overhear or record any
communication that they were lawfully authorized to overhear
or record prior to the enactment of the prohibitions.
Provides that any evidence so obtained is admissible in any
judicial, administrative, or legislative proceeding. (Penal
Code Section 633.)
4)Permits one party to a confidential communication to record
the communication for the purpose of obtaining evidence
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reasonably believed to relate to the commission by another
party to the communication of the crime of extortion,
kidnapping, bribery, any felony involving violence against the
person, or a violation of the law against obscene,
threatening, or annoying phone calls. Provides that any
evidence so obtained is admissible in a prosecution for such
crimes. (Penal Code Section 633.5)
5)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 Section 41803.5(a).]
6)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 Section 41803.5(b).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Each year,
cases involving victims of fraud and consumer abuse are
stalled due to challenges city attorney offices face during
the investigation process. These cases include loan
modification schemes targeting the elderly, phony talent
auditions for children, unlicensed school bus drivers, and
predatory 'notarios' who falsely promise to help persons
obtain immigration documents, among others. Equipped with a
hidden camera, fraud investigators make purchases and identify
sellers in a myriad of cases punishable as felonies and
misdemeanors such as the sale of lead-tainted jewelry and
moving companies misrepresenting their fees.
"In investigating these types of cases, current law permits
peace officers, the state Attorney General and all district
attorneys the authority to overhear and record conversations
held in public. However, city attorneys are not included on
this list and must obtain permission from police or district
attorney offices to utilize this investigative practice.
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"The added step for city attorneys to seek permission to record
public conversations may take weeks. This can seriously
hamper fraud and abuse cases that rely on timely
investigations, and as a result, victims of fraud or consumer
abuse are denied swift action to bring their perpetrators to
justice.
"Assembly Bill 1010 permits city attorney prosecutors to use an
investigative tool already used by other prosecuting agencies
in the state. It also alleviates police and other prosecuting
agencies of the unnecessary burden to authorize and supervise
city attorneys requesting to record public conversations."
2)Background : According to background material supplied by 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.
"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.
"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
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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 amending Penal Code �633 to specify that prosecuting city
attorneys may overhear and record communications.
"Assembly Bill 1010 provides city attorney prosecutors with the
same investigative tools under Penal Code �633 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.
"Assembly Bill 1010 will alleviate police and other prosecuting
agencies of the unnecessary burden to authorize and supervise
city attorneys requesting to record undercover communications,
and will shield them from the accompanying risk of civil
liability."
3)Governor's Veto Message : AB 1884 (Spitzer), of the 2004-05
Legislative Session, was identical to this bill and vetoed by
then Governor Arnold Schwarzenegger. In his veto message, the
Governor 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
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city attorney may see k 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."
4)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, a person
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 explicitly
include city attorneys prosecuting state law misdemeanor
cases.
5)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 41803.5.
�(1996) 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
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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 Penal Code Section 633.
6)Legislative History and Intent : Current law declares that
"advances in science and technology have led to the
development of new devices and techniques for the purpose of
eavesdropping upon private communications and that the
invasion of privacy resulting from the continual and
increasing use of such devices and techniques has created a
serious threat to the free exercise of personal liberties and
cannot be tolerated in a free and civilized society." (Penal
Code Section 630.) Current law also recognizes that "law
enforcement agencies have a legitimate need to employ modern
listening devices and techniques in the investigation of
criminal conduct and the apprehension of lawbreakers." (Id.)
The Legislature crafted Penal Code Section 633 to balance the
two concerns by only granting authority to eavesdrop and
record to limited law enforcement agencies. In drafting the
statute, the original language exempted all law enforcement
officers from these prohibitions. The final adopted language,
however, listed specific law enforcement agencies.
7)Argument in Support : According to the Los Angeles City
Attorney (the sponsor of this bill), "�u]nder current law,
prosecuting city attorney must first seek authority from the
district attorney to record public conversations in the course
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 language will not reverse an earlier
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legislative policy decision to specifically exclude city
attorneys. Rather, Penal Code Section 633 predates the
authorization given to California 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.
"AB 1010 will help ensure that our prosecutors' efforts go
uninterrupted when they are performing their duty to protect
public safety. In this era of economic uncertainty, it will
also ensure that limited resources are utilized efficiently
that will ultimately result in a positive fiscal impact for
the State of California."
8)Argument in Opposition : According to the California Public
Defenders Association , "California's statutory Invasion of
Privacy Act ('the Act,' Pen. Code Section 630 et seq.)
criminalizes the nonconsensual interception or recording of
most confidential communications. AB 1010 would add city
attorneys who are authorized to prosecute misdemeanors, and
their authorized deputies, to Penal Code section 633's list of
law enforcement and prosecutorial personnel who are exempt
from prohibitions generally imposed by the Act. The exemption
list presently includes district attorneys and their
authorized employees (e.g. deputy district attorneys), but not
city attorneys.
"Both before and after a case is filed, confidential
communications when intercepted by law enforcement or
prosecutors, often yield statements of evidentiary value, or
lead investigators to other evidence not otherwise obtainable.
District Attorneys are already exempt from the act, and
District Attorneys have the authority to file felony charges,
whereas City Attorneys have jurisdiction to file misdemeanor
charges carrying by definition no more than one year in the
county jail.
"Existing law allowing district attorneys to intercept or record
confidential communications is sufficient as they are pursuing
charges that carry the threat of state prison exposure.
Oftentimes, district attorneys weigh all of the evidence and
determine that a particular charge does not merit a felony
filing at all and most of those instances, the charges are
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then referred to the city attorney's office for misdemeanor
filing consideration. Taxpayer money is better spent to
pursue those charges that are serious in nature and which
involve threats to public safety on a larger scale."
9)Prior Legislation : AB 1884 (Spitzer), of the 2004-05
legislative session, was identical to this bill and was
vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
City Attorney, City of Los Angeles (Sponsor)
League of California Cities
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744