Courtesy of James R. Touchstone, Esq.
CONSTITUTIONAL LAW/ POLICE CONDUCT
- Defendant’s murder conviction was reversed because the police officer obtained defendant’s confession by threatening to charge his sons with murder.
People v. Jimenez, 72 Cal. App. 5th 712 (4th Dist. 2021)
Facts: Around midnight on the night of May 19–20, 2016, Sheriff’s Deputy Jeffrey Casey was on patrol in Highland, CA when he noticed a white Chevy Suburban, with an attached trailer, parked next to an open field. He observed three males and two trash cans in the field. The males ran to the Suburban, got in, and drove away. The deputy suspected they might have committed illegal dumping. He pursued and tried to pull over the Suburban. The Suburban returned to the trash cans where the driver leaned out and used a lighter to set fire to the contents of one can. To stop him from destroying evidence, Deputy Casey rammed the back of the Suburban. The driver dropped the lid, which extinguished the fire. The Suburban again fled. The driver dropped off the two passengers, then led police in a pursuit in which the Suburban ran through red lights and stop signs, and drove on the wrong side of the road. Eventually, the driver stopped, and ran on foot before officers apprehended and arrested him. The driver was identified as defendant Enrique Mayorga Jimenez and the two passengers that he had dropped off were identified as his two teenage sons. In the partially burnt trash can, police found a dead body with stab wounds and gasoline poured on it.
Detective John Munoz interviewed defendant. The detective stated near the beginning of the interview that defendant’s sons were both “…a little afraid … they had nothing to do with this, they didn’t do this.” “But you’re gonna be the one to help them.” “Because I’m gonna have to charge them with the death of this guy.” When defendant asked why, Detective Munoz responded, “Until I can find out what happened.” Defendant then said, “Okay, well I’ll talk to ya and tell ya what happened, okay?” Detective Munoz stated, “…then once we do all of that, then we’ll be able to, you know, to clear them from this and then we’ll move on, okay?” After Detective Munoz Mirandized[1] defendant, defendant confessed to killing the victim. Defendant repeatedly said he did not want his sons to go to jail.
In a jury trial, defendant was found guilty of, among other things, first degree murder with an enhancement for personal use of a deadly weapon. He was sentenced to a total of 29 years to life. Defendant appealed. He contended, among other things, that his confession was involuntary because the police induced it by threatening to charge his sons with the murder.
Held: The California Fourth District Court of Appeal explained that as a general rule, “[a] confession coerced by a threat to arrest a near relative is not admissible.”[2] Coercive police activity is a necessary predicate to the finding that a confession is not “voluntary” within the meaning of the Due Process Clause of the Fourteenth Amendment. Coercive police activity, however, does not itself compel a finding that a resulting confession is involuntary. The statement and the inducement must be causally linked.[3]
The Fourth District noted that there is an exception to this general inadmissibility rule when the police have probable cause to charge the relative. Here, however, Detective Munoz told defendant that the detective knew defendant’s sons were innocent of murder, but intended to charge them anyway—unless defendant confessed. The Court stated that there was a clear causal connection between the threat and the confession. The Court found that the detective’s representations were inherently coercive, and did, in fact, coerce defendant. The Court therefore concluded that the general rule applied.
The Court of Appeal also found that the error was prejudicial. The Court explained that it could not say, beyond a reasonable doubt, that if the confession had been excluded, defendant would still have been convicted of first-degree murder. The Court believed it was reasonably probable that the jury would have found him guilty of a lesser offense, such as second-degree murder or involuntary manslaughter, or acquitted him on the first-degree murder count. Accordingly, the Fourth District Court of Appeal reversed solely with respect to the first-degree murder conviction, and remanded with directions. In all other aspects, the Court affirmed.
- Motion to suppress should have been granted because the odor of burnt marijuana was insufficient to support probable cause for the warrantless search of a vehicle.
Blakes v. Superior Court (People), 72 Cal. App. 5th 904 (3rd Dist. 2021)
Facts: In December 2019, Sacramento County Sheriff’s deputies were patrolling in their marked vehicle when they spotted a Chevy Impala with tinted windows in violation of the Vehicle Code. A records check revealed that the Impala was owned and being driven by Derrick J. Blakes, whose license was suspended. Blakes also had a prior arrest for felon in possession of a firearm. The deputies initiated a traffic stop based on the window tint and driving with a suspended license violations. Blakes subsequently drove for about one-tenth of a mile before pulling over into a parking lot where he parked the Impala. The deputies informed Blakes that he was driving on a suspended license and had an illegally tinted front window. At this time, a deputy noticed the smell of marijuana coming from Blakes’ car. The deputies asked him to exit the vehicle. Blakes complied. The deputies conducted a pat-down search of Blakes, finding nothing. After the pat down, the deputy who detected the marijuana odor told Blakes that he would be searching the interior of the vehicle because he had smelled burnt marijuana from the car and because Blakes’ license was suspended. The deputy later testified that the smell of the burnt marijuana weighed heavily in his decision to search the car, and he had thought that the smell of burned marijuana gave him probable cause to search the vehicle. The vehicle search yielded marijuana, a digital scale, a handgun, and other items. Blakes was arrested.
Blakes was charged with possession of a controlled substance, felon in possession of a firearm, driving without a valid license, along with a serious felony and a strike allegation. Blakes’ motion to suppress these items was denied by the magistrate, who found that the search was supported by probable cause. Blakes motion to suppress evidence filed with the trial court was also denied. Blakes subsequently filed a petition for writ of mandate with the California Third District Court of Appeal, arguing his suppression motion should have been granted.
Held: The California Third District Court of Appeal explained that the Fourth Amendment guarantees the right to be free of unreasonable searches and seizures by law enforcement personnel. When police conduct a search or seizure without a warrant, the prosecution has the burden of showing the officers’ actions were justified by an exception to the warrant requirement.[4] One exception to the warrant requirement is where an officer has probable cause to believe contraband or evidence of a crime is in an automobile. The automobile exception allows “police who have probable cause to believe a lawfully stopped vehicle contains evidence of criminal activity or contraband [to] conduct a warrantless search of any area of the vehicle in which the evidence might be found.”[5]
The Third District observed that the passage in 2016 of Proposition 64 generally legalized the possession of up to 28.5 grams of cannabis by individuals 21 years or older.[6] The Court explained that provisions of the proposition “fundamentally changed the probable cause determination by specifying lawfully possessed cannabis is ‘not contraband’ and lawful conduct under the statute may not ‘“constitute the basis for detention, search or arrest.”’ [Citation.]”[7] However, the Court noted that even after the enactment of Proposition 64, there is probable cause to search a vehicle if a law enforcement official observes a legal amount of cannabis in an illegal setting.
The Court of Appeal concluded here, however, that the deputies’ search of Blakes’ vehicle was not supported by probable cause. The Court explained here that there were two possible illegal uses of marijuana that could have supported probable cause to believe a crime involving marijuana was being committed (had there been sufficient evidentiary support) – driving under the influence of marijuana[8] and driving with an open container of marijuana.[9] The Court found no evidence nor deputy observation testimony that Blakes was impaired or driving erratically, nor had a sobriety test been administered. Nor was there evidence that either deputy observed an open container before Blakes’ car was searched. The Court stated that the fact that there was a smell of burnt marijuana emanating from the car was insufficient to support either theory of probable cause here. The Third District explained that the smell of burnt marijuana in a car, where there is no indication it had been recently smoked within, cannot by itself provide probable cause of driving under the influence of marijuana. The Court thus declared the automobile exception inapplicable here. Finding in favor of Blakes on other matters as well, the Third District Court of Appeal granted his petition for writ of mandate directing the trial court to vacate its order denying the suppression motion and enter an order granting the motion.
- Police officer’s hot pursuit of fleeing misdemeanant into a garage did not trigger the exclusionary rule even though the officer relied on binding precedent that was later overturned.
People v. Lange, 2021 Cal. App. LEXIS 1071 (1st Dist. Dec. 20, 2021)
Facts: In October 2016, California Highway Patrol Officer Aaron Weikert observed defendant Arthur Gregory Lange driving a vehicle while blaring loud music and honking unnecessarily, violations of Vehicle Code sections 27007 and 27001, respectively. Officer Weikert followed defendant, turning on his overhead lights to signal that defendant should pull over. Seconds later, defendant arrived at the driveway of his home. Rather than pulling over, defendant drove up his driveway and into his attached garage. Officer Weikert followed defendant into the garage and began questioning him. Defendant appeared intoxicated, prompting the officer to conduct field sobriety tests, which defendant failed. A subsequent blood test showed defendant’s blood-alcohol content was over three times the legal limit.
Defendant was charged with driving under the influence of alcohol and operating a vehicle’s sound system at excessive levels. He moved to suppress all evidence collected by the officer after he entered defendant’s attached garage, contending that the officer’s warrantless entry violated the Fourth Amendment. The trial court denied defendant’s motion. The California First District Court of Appeal affirmed the trial court’s denial of the motion to suppress evidence, and defendant was unsuccessful in petitioning the California Supreme Court for review. However, the United States Supreme Court granted defendant’s petition for writ of certiorari, and issued Lange v. California (2021) 579 U.S. 486 [210 L.Ed.2d 486, 141 S.Ct. 2011]. In that opinion, the high court rejected a categorical rule in hot pursuit cases that would permit warrantless entry into the home of a suspected misdemeanant, and held that whether a misdemeanor pursuit “involve[s] exigencies allowing warrantless entry” must “turn[] on the particular facts of the case.” (Lange v. California, supra, 210 L.Ed.2d at p. 491.) The high court vacated the First District’s prior decision and remanded the case back to the Court of Appeal to reconsider defendant’s challenge in light of the high court’s decision.
Held: The First District Court of Appeal noted that the Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” and that the United States Supreme Court created the exclusionary rule as a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. (Davis v. United States (2011) 564 U.S. 229, 231–232.) The First District added that under federal law, “[t]he high court has recognized that the deterrent purpose of the rule is not served by excluding evidence when an officer reasonably acts in objective good faith.” (People v. Macabeo (2016) 1 Cal.5th 1206, 1220.) “Evidence obtained during a search conducted in reasonable reliance on binding appellate precedent [that is later overruled] is not subject to the exclusionary rule,” as “suppression would do nothing to deter police misconduct in [those] circumstances.” (Davis, supra, 564 U.S. at pp. 231, 241.) “[W]hen the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” (Id., at pp. 249–250.)
The First District discussed such binding appellate precedent. The Court noted that People v. Lloyd, (2nd Dist. 1989) 216 Cal.App.3d 1425, held that “a suspect may not defeat a detention or arrest which is set in motion in a public place by fleeing to a private place.” (Id., at p. 1430.) Moreover, the Fourth District in In re Lavoyne M. (4th Dist. 1990) 221 Cal.App.3d 154 followed Lloyd to hold the “hot pursuit of minor into his house to prevent him from frustrating an arrest [for traffic violations] that began in public provides an exception to the warrant requirement.” (Id., at p. 159.) In Stanton v. Sims (2013) 571 U.S. 3, 9–10, the United States Supreme Court expressly acknowledged that the hot pursuit exception in California extended to both felony and misdemeanor suspects, citing Lloyd and Lavoyne M.
The First District acknowledged that the high court’s Lange v. California decision clearly changed this California law when it rejected a categorical rule permitting warrantless entry in hot pursuit cases involving misdemeanor suspects. However, at the time Officer Weikert entered defendant’s home without a warrant, Lloyd and Lavoyne M. were “binding appellate precedent” in California. The First District observed that “evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.”[10] Here, the Court explained that Officer Weikert could not properly be charged with knowledge that his warrantless entry into defendant’s home violated the Fourth Amendment, given that multiple California cases had, at the time of the Officer Weikert’s entry, authorized warrantless entry in cases involving the hot pursuit of a fleeing misdemeanant.
The Court therefore concluded that under the good faith exception to the Fourth Amendment exclusionary rule, it was not necessary to suppress evidence from Officer Weikert’s warrantless entry. The First District Court of Appeal accordingly affirmed the trial court’s order denying defendant’s motion to suppress.
- Warrantless blood draws were not Fourth Amendment violations when the driver was unconscious and there was no opportunity for a breath test due to emergency that the driver caused.
People v. Nault, 2021 Cal. App. LEXIS 1068 (2nd Dist. Dec. 20, 2021)
Facts: Alberic Roland Nault had four convictions for drunk driving. In October 2017, he got drunk and tried to pass an 18-wheeler on a narrow road at night. His pickup truck hit an oncoming car and killed its driver. By the time California Highway Patrol officer Carlos Burgos-Lopez arrived at the scene, Nault was semiconscious in an ambulance. His pants were soaked in alcohol, and was injured and was attended to by medical personnel. Although Nault initially said he had been drinking beer, his injuries prevented him from giving the officer a complete statement. Medics moved Nault to a helicopter for emergency evacuation before Officer Burgos-Lopez was able to use a breathalyzer that he had retrieved from his cruiser.
At the hospital, Officer Riley Beckinger, who had been assigned the investigation, found the unconscious Nault. Beckinger smelled a strong smell of alcohol on Nault, and was told by Officer Burgos-Lopez that Nault was under the influence. The medical staff said they would take Nault into surgery soon. Officer Beckinger believed he had no time to get a warrant before the surgery, so he asked a nurse to draw the unconscious Nault’s blood immediately and said that he would get a warrant thereafter. A nurse took two blood samples. Officer Beckinger received the warrant that same night and delivered it to the hospital the next morning. Analysis of the blood revealed that at the time of the blood draw (about two hours after the crash), Nault’s blood alcohol content was 0.14 percent, about twice the legal limit.
A jury convicted Nault of second-degree murder and gross vehicular manslaughter while intoxicated. Nault pleaded no contest to driving a vehicle with a suspended license and admitted four prior convictions for driving under the influence. The trial court sentenced Nault to 15 years to life in state prison. Nault appealed, arguing that the warrantless blood draw violated his Fourth Amendment right against an unreasonable search.
Held: The Second District Court of Appeal first explained that a blood draw is a search governed by the Fourth Amendment. (Birchfield v. North Dakota (2016) 136 S.Ct. 2160, 2173.) A warrantless blood draw is presumed unreasonable unless justified by a recognized exception. (Missouri v. McNeely (2013) 569 U.S. 141, 148.) One such exception is exigent circumstances, which arise when an emergency makes law enforcement needs so compelling that a warrantless search is objectively reasonable. (Id., at pp. 148–149.) The Court of Appeal explained that circumstances are exigent when blood alcohol evidence is dissipating, and a pressing health, safety, or law enforcement need takes priority over a warrant application.[11]
The Court explained that when a driver is unconscious, the general rule is a warrant is not needed.[12] Moreover, the Fourth Amendment “almost always” permits a warrantless blood test when police officers do not have a reasonable opportunity for a breath test before hospitalization.[13] The Court concluded that the general rule governed here, and that exigent circumstances justified the blood draw. The Court observed that Nault created the exigency by injuring himself badly, and he was unconscious and had to be helicoptered to surgery. Caring for Nault’s medical need left no time for a breath test. Accordingly, the Second District affirmed as to this matter.
- Objective circumstances justified Border Patrol officer’s decision to stop and investigate fleeing plaintiff’s vehicle after plaintiff sighted officer’s vehicle and then fled in a high-crime area.
Elmore v. Gordon, 2021 Cal. App. LEXIS 1101 (2nd Dist. Dec. 30, 2021)
Facts: Shortly after midnight about 15 yards north of the Mexican border, Miguel Ponce of the Border Patrol sat in his parked cruiser watching for people cutting through the border fence and running to large vehicles, like minivans, that would take them away. A black minivan drove into a restricted area, which was off limits to the general public. The amount of light would have made Ponce’s marked vehicle visible to the minivan driver. When the minivan came to approximately 20 yards from Ponce’s vehicle, the minivan U-turned abruptly and quickly sped away. Ponce followed and stopped the minivan.
The driver, Steve Louis Elmore, avoided eye contact, spoke with slurred speech, smelled of alcohol, had bloodshot and watery eyes, and had apparently urinated on himself. Police warned Elmore his license would be suspended or revoked if he refused to take a chemical test for alcohol. Elmore refused. Officials obtained a warrant for a blood draw showing Elmore’s alcohol level was more than twice the limit. The Department of Motor Vehicles (“DMV”) suspended Elmore’s driver’s license for one year because he refused to submit to a blood or breath test. Elmore appealed his license suspension.
Held: The Second District Court of Appeal affirmed. Elmore first argued that Ponce’s temporary investigative stop of Elmore was illegal. The Court disagreed, explaining that sighting and then fleeing police in a high crime area creates a reasonable suspicion that warrants a Terry stop. (Illinois v. Wardlow (2000) 528 U.S. 119, 124-125; Kansas v. Glover (2020) 140 S.Ct. 1183, 1188; People v. Silveria (2020) 10 Cal.5th 195, 236.) The Court found that Ponce reasonably suspected the minivan was involved with illegal smuggling and that objective circumstances justified his decision to stop it and to investigate.
Elmore’s second argument was that police failed to read a particular sentence when warning him that his refusal to submit to chemical testing would result in a license suspension. The omitted sentence was as follows: “Refusal or failure to complete a test will also result in a fine and imprisonment if this arrest results in a conviction of driving under the influence.” However, the Court explained that when police give an incomplete admonition about the consequences of refusing chemical testing, the law limits the permissible sanction to the extent of actual notice. (See Daly v. Department of Motor Vehicles (4th Dist. 1986) 187 Cal.App.3d 257, 262.). Police warned Elmore his driver’s license would be suspended if he refused chemical testing. He refused, and so his license was suspended. However, the DMV was not seeking a fine or imprisonment. As the sanction did not exceed the extent of the actual notice, the Court concluded that the second argument also failed.
EMPLOYMENT
Where wife allegedly contracted COVID-19 at her workplace and her husband contracted it and died, her ensuing claim against her workplace was not preempted by Workers’ Compensation Act exclusivity provisions.
See’s Candies, Inc. v. Superior Court (Ek), 2021 Cal. App. LEXIS 1076 (2nd Dist. Dec. 21, 2021)
Facts: See’s Candies, Inc. and See’s Candy Shops, Inc. (collectively, “defendants”) operated a candy assembly and packing line. Matilde Ek (“Mrs. Ek”) was employed by defendants. Mrs. Ek was the wife of decedent Arturo Ek (“Mr. Ek”). Mrs. Ek and the Eks’ daughters (collectively, “plaintiffs” and real parties and interest) filed a complaint against defendants in late December 2020, alleging that in March 2020, Mrs. Ek contracted COVID-19 at work because of defendants’ failure to implement adequate safety measures. Plaintiffs claimed that Mr. Ek subsequently caught COVID-19 from Mrs. Ek while she convalesced at home. Mr. Ek died from the disease in April 2020. Plaintiffs asserted causes of action for general negligence and premises liability. They sought “all recoverable damages for the wrongful death of [Mr. Ek], including loss of love, care, comfort and society.” Mrs. Ek, as Mr. Ek’s successor in interest, also sought economic losses for medical and care costs for the period from Mr. Ek’s infection until his death.
Defendants filed a demurrer asserting that plaintiffs’ claims were preempted by the Workers’ Compensation Act (“WCA”; Labor Code section 3200 et seq.) under the derivative injury doctrine. Under this doctrine, “the WCA’s exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries ‘“collateral to or derivative of”’ such an injury.”[14] The doctrine applied, defendants argued, because plaintiffs could not state a claim against defendants for Mr. Ek’s death without alleging an injury to an employee, namely Mrs. Ek’s workplace infection with COVID-19. Defendants argued that plaintiffs’ claims were therefore subject to WCA exclusivity. The trial court rejected this argument and overruled the demurrer. Defendants subsequently petitioned for a writ of mandate directing the trial court to vacate its order overruling defendants’ demurrer.
Held: The California Second District Court of Appeal explained that the WCA is a comprehensive statutory scheme governing compensation given to California employees for injuries incurred in the course and scope of their employment. Under the WCA’s “compensation bargain,” the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee, for his or her part, is provided relatively fast and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.[15] “[T]he WCA generally limits an employee’s remedies against an employer for work-related injuries to those remedies provided by the statute itself.”[16]
The Court explained that WCA exclusivity is not limited to claims brought by injured employees themselves. The workers’ compensation system also is “the exclusive remedy for certain third-party claims deemed collateral to or derivative of the employee’s injury” (Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 997), a principle courts have referred to as the “derivative injury rule” or “derivative injury doctrine.”
Defendants contended that under Snyder, a claim is derivative if it would not exist absent injury to the employee. Because plaintiffs alleged Mr. Ek contracted COVID-19 from Mrs. Ek, who in turn contracted the disease at work, defendants argued that Mr. Ek’s death would not have occurred absent Mrs. Ek’s workplace exposure, and thus was derivative of Mrs. Ek’s work-related injury. Defendants argued that plaintiffs’ claims were thus subject to WCA exclusivity.
Even assuming for the sake of defendant’s argument that Mrs. Ek’s workplace infection constituted an injury under the WCA, the Second District rejected defendants’ efforts to apply the derivative injury doctrine to any injury causally linked to an employee injury. The Court stated that defendants’ interpretation was inconsistent with the language of Snyder, which established that the fact an employee’s injury is the biological cause of a nonemployee’s injury does not thereby make the nonemployee’s claim derivative of the employee’s injury.
The Court also found that the California Supreme Court’s discussion in Snyder of prior case law applying the derivative injury doctrine did not support applying the doctrine based solely on causation. Snyder approved of cases applying the doctrine to claims by family members for losses stemming from an employee’s disabling or lethal injury, such as wrongful death, loss of consortium, or emotional distress from witnessing a workplace accident. In contrast, the Snyder Court called into question a case applying the derivative injury doctrine outside these contexts based on causation alone. The Second District explained that defendants’ interpretation of the derivative injury doctrine would lead to anomalous results, shielding employers from civil liability in contexts the drafters of the WCA could not have intended.[17]
The Second District concluded that the derivative injury doctrine did not apply here because plaintiffs did not seek damages for losses arising from a disabling or lethal injury to Mrs. Ek, such as loss of her support or companionship, or emotional trauma caused by observing Mrs. Ek’s suffering. Nor did they sue for “injuries that arose during the treatment of [an employee’s] industrial injury” or “in the course of the workers’ compensation claims process.”[18] Instead, they sued for damages arising from Mr. Ek’s death, an event allegedly causally related to Mrs. Ek’s alleged infection by the virus in the workplace, but under Snyder, not derivative of that infection. Accordingly, the Second District Court of Appeal denied the defendants’ petition.[19]
PUBLIC RECORDS
A Public Records Act request was not unduly burdensome because the request specified particular email addresses and so the emails, although numerous, would be easy to locate.
Getz v. Superior Court (County of El Dorado), 72 Cal. App. 5th 637 (3rd Dist. 2021)
Facts: Dean Getz was a member of the Serrano El Dorado Owners Association (“Serrano”), a homeowners association developed and managed by Parker Development Company (“Parker”). In March 2018, Getz sought records under the California Public Records Act (Government Code section 6250 et seq.; the “Act”) regarding the County of El Dorado’s (the “County”) contacts with Serrano and Parker. The County produced an index of responsive documents, including emails, on a CD with hyperlinks to the text of the emails or documents. Getz believed that not all responsive records were produced, so he expanded the scope of the request to include all emails from January 2013 to August 1, 2018, between four email domain names (that were associated with Serrano or Parker and its representatives) and any department of the County. The County newly identified 42,582 emails, and produced an index which identified the sender, recipient, subject, date and whether the email had an attachment. However, this time the emails were not readable; this index contained no hyperlinked text. Getz informed the County that he needed the text of these responsive emails, and he reiterated his request for their production. The County did not respond.
Getz filed a petition for writ of mandate directing the County to produce the records he sought. The trial court agreed with the County that the request was overbroad and unduly burdensome. Getz filed a petition for writ of mandamus in the California Third District Court of Appeal seeking a direction to the trial court to vacate its decision denying his petition and require the County to produce the responsive records identified in the index that lacked hyperlinked email text.
Held: The Third District noted that in an appellate court’s review of a trial court’s order supporting a public agency’s decision to refuse to disclose records, “‘exemptions are construed narrowly, and the burden is on the public agency to show that the records should not be disclosed.’” (California First Amendment Coalition v. Superior Court (3rd Dist. 1998) 67 Cal.App.4th 159, 167, quoting Rogers v. Superior Court (2nd Dist. 1993) 19 Cal.App.4th 469, 476.) The Court explained that the Act’s Section 6257 compels an agency to provide a copy of nonexempt records upon a request “which reasonably describes an identifiable record, or information produced therefrom ….” The Court initially determined that Getz had presented a sufficiently “specific and focused request”[20] to the County. The Court observed, however, that even “[a] clearly framed request…which compels production of a huge volume of material may be objectionable as unduly burdensome.”[21] Nonetheless, an agency is “obliged to comply so long as the record can be located with reasonable effort.”[22]
The County protested the volume of emails responsive to Getz’s request, and speculated that many of the documents were not likely to relate to the conduct of official business and consequently might be exempt from disclosure. The County also asserted that the need to review all the emails to determine if they contained privileged information and to verify that they were public documents would impose an enormous burden.
The Third District disagreed. The Court noted that the County had already located and indexed the responsive 42,582 email documents using the criteria in Getz’s request before he filed a petition for writ of mandate, but simply refused to produce them. The Court also noted that the burden to assert and establish exemption from disclosure is on the agency. The Court stated that an agency “cannot resist disclosure based on the burden stemming from actions needed to assuage an abstract fear of improvident disclosure, a fear that could be avoided by simply setting privileged documents apart.”
The Third District Court of Appeal accordingly concluded that the trial court’s finding that the request was “overbroad and unduly burdensome” was not supported by substantial evidence. The Court of Appeal accordingly granted the petition in part. The Third District ordered the trial court to vacate that portion of its order denying Getz’s request for production of the relevant emails and to order the County to produce the text of emails and any attachments on the County’s index of 42,852 responsive e-mails. The County would be required to pay Getz’s “costs and reasonable attorney fees” in an amount to be determined by the trial court. (Section 6259(d).)
MISCELLANEOUS
The wiretap statute does not impose the requirement that an application filed in the District Attorney’s absence include information detailing the specific circumstances of the absence.
People v. Gonzalez, 12 Cal. 5th 367 (2021)
Facts: In March 2006, Los Angeles County Sheriff’s Department Deputy Maria Rosa was found lying dead on the ground outside of her house. A medical examiner identified gunshot wounds, and concluded that Rosa had died from internal bleeding caused by the gunshots. Based on DNA evidence and information obtained by confidential informants, law enforcement personnel began to focus their investigation on Frank Christopher Gonzalez and another man. Law enforcement obtained an order authorizing a wiretap on six different phone lines that were affiliated with Gonzalez and his acquaintances. John Spillane, the chief deputy district attorney for Los Angeles County, signed the wiretap application and attested that he was “the person designated to act as District Attorney in [District Attorney Steve Cooley’s] absence.” Pursuant to those wiretaps, police intercepted conversations between Gonzalez’s former longtime girlfriend and Gonzalez’s sister. Gonzalez was subsequently charged with Rosa’s murder and other charges. A jury found Gonzalez guilty of, among other things, first degree murder, and returned a death verdict. The trial court entered a judgment of death. An automatic appeal followed.
Held: On appeal, Gonzalez argued that the wiretap application was invalid because it failed to include information describing the circumstances of District Attorney Cooley’s absence. Gonzalez argued that without such information, there was no way to verify whether Cooley was truly absent at the time that Spillane filed the application. Gonzalez asserted that the trial court should have suppressed any evidence derived from communications that law enforcement intercepted pursuant to the wiretap order.
The Supreme Court of California noted that the wiretap law (Penal Code section 629.50 et seq.) provides that “[e]ach 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 … or of a district attorney, or the person designated to act as district attorney in the district attorney’s absence.” (Section 629.50(a).) The Court noted that while Section 629.50(a) sets forth a detailed description of additional categories of information a wiretap application must contain, the statute does not require that the application describe the circumstances of the district attorney’s absence.
The Supreme Court noted that Chief Deputy Spillane’s wiretap application included an oath that incorporated the exact statutory language of Section 629.50(a). The Court found that the express provisions of the wiretap statute required nothing more. The Court observed that Spillane attested in the wiretap application, “Steve Cooley is the District Attorney of the County of Los Angeles, and I am the person designated to act as District Attorney in his absence pursuant to Penal Code [s]ection 629.50(a).” The Court explained that statement was most reasonably construed as a declaration that the district attorney was in fact absent. The Court held that Section 629.50(a) does not require that when a person designated to act as district attorney in the district attorney’s absence seeks a wiretap order, the application must include information that explains the circumstances of the district attorney’s absence. The Supreme Court ultimately affirmed.
[1] See Miranda v. Arizona, 384 U.S. 436 (1966).
[2] See People v. Matlock, 51 Cal.2d 682, 697 (1959).
[3] See People v. Guerra, 37 Cal.4th 1067, 1093 (2006), disapproved on other grounds in People v. Rundle, 43 Cal.4th 76, 151 (2008).
[4] People v. Camacho, 23 Cal.4th 824, 830 (2000).
[5] See People v. Evans, 200 Cal.App.4th 735, 753 (2nd Dist. 2011).
[6] See Health and Safety Code section 11362.1(a)(1).
[7] People v. Hall, 57 Cal.App.5th 946, 954 (1st Dist. 2020).
[8] Vehicle Code section 23152(a).
[9] Vehicle Code section 23222.
[10] See United States v. Leon (1984) 468 U.S. 897, 919, and Macabeo, supra, 1 Cal.5th at p. 1220 (italics added).
[11] Mitchell v. Wisconsin, 139 S.Ct. 2525, 2537 (2019) (plur. opn. of Alito, J.); Schmerber v. California, 384 U.S. 757, 770–771 (1966).
[12] Id., at p. 2531.
[13] Id., at p. 2539.
[14] King v. CompPartners, Inc., 5 Cal.5th 1039, 1051 (2018).
[15] See Id., at pp. 1046–1047.
[16] Id., at p. 1051; see also Labor Code sections 3600 and 3602.
[17] The Court of Appeal remarked that “[a]lthough the breadth of the derivative injury doctrine presents serious policy considerations, Snyder recognizes that such policy considerations are within the province of the Legislature and should not be judicially addressed by expansion of the derivative injury doctrine.”
[18] King, supra, 5 Cal.5th at pp. 1052–1053.
[19] The Second District added that because the parties framed the writ exclusively to address the applicability of the WCA, the Court declined to address whether defendants owed Mr. Ek a duty of care or whether plaintiffs could demonstrate that Mr. or Mrs. Ek contracted COVID-19 because of any negligence in defendants’ workplace, as opposed to another source during the COVID-19 pandemic.
[20] Rogers, 19 Cal.App.4th at p. 481; California First, 67 Cal.App.4th at p. 165.
[21] California First, 67 Cal.App.4th at p. 166.
[22] Id.
