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[Note: The following excerpt was taken from the successful petition for review filed by Mark L. Christiansen in the California Supreme Court in People v. Otto and Mark (1992) 2 Cal.4th 1088.]

B. Federal Law

The Court of Appeal’s analysis of federal law is a disaster for California. Under its analysis, any time a person claims a wiretap was in any way related to a marital dispute, or even just on a home phone, no matter how long that tap and recording and eavesdropping went on, and no matter how indiscriminate, the wiretap and the recording and the eavesdropping is legal. That means that no one can call a friend and especially not a friend who might have marital problems while still maintaining any expectation that the conversation is confidential. This is completely contrary to the purpose of the Federal Wiretap Act, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq., hereafter Title III or the Act). However, one need not even go to the purpose for it is clearly contrary to the language of that Act.

The Court of Appeal reached its result by finding an exception implied for wiretaps of the family telephone. As a result, it was spared from having to acknowledge the utter fallacy the People’s alternate theory, briefed and orally argued by both sides, that Title III should not be imposed against the prosecution when it is the innocent recipient of an interception obtained in violation of the Act. The exception found means no call to or from a residence is private.

The Court of Appeal acknowledged that the federal circuits are split on whether such an exception may be found. (Opin. 26-30.) Those that find the exception do so in the context of civil actions. Generally, these classify Title III as a criminal statute which is too harsh to be applied to interspousal surveillance. (Simpson v. Simpson (5th Cir. 1974) 490 F.2d 803; Anonymous v. Anonymous (2d Cir. 1977) 558 F.2d 677; see also Perfit v. Perfit (C.D. Cal.1988) 693 F.Supp. 851 [following that line and noting application of federal law would be inappropriate in an area of domestic conflict which should be left to the states]; cf. Robinson v. Robinson (La.Ct.App. 1986) 499 So.2d 152.) Since these cases find federal law does not punish overhearing a conversation on an extension phone (Opin. p. 26 and fn. 15), they then extend that exception to permitting a wiretap to intercept a family member’s conversation.

However, another line of cases concludes there is no such exception, and certainly not for willful, unconsented to electronic surveillance between spouses. (Kempf v. Kempf (8th Cir. 1989) 868 F.2d 970, Pritchard v. Pritchard (4th Cir. 1984) 732 F.2d 372; United States v. Jones (6th Cir. 1976) 542 F.2d 661, and other cases cited at Opin. p. 29; and see also United States v. Underhill (6th Cir. 1987) 813 F.2d 105, 107; United States v. Vest (1st Cir. 1987) 813 F.2d 477, 481.) These cases look at the language and the intent of the Act. They require the language be taken to mean what it says, and in the absence of a specific exception created by statute refuse to imply one. As the Court of Appeal in Underhill, supra, points out “the Act makes all interceptions of oral and wire communications illegal unless specifically excepted.” (Id., at p. 108.) There are no such express exceptions which apply to the present case. (Compare 18 U.S.C. § 2511(2).)

The latter group of cases are supported by the major United States Supreme Court case in the area. In Gelbard v. United States (1972) 408 U.S. 41 [33 L.Ed.2d 179, 92 S.Ct. 2357], the Court discussed Title III in the context of a contempt charge regarding witnesses who were wiretapped and subsequently refused to testify before the grand jury. In upholding the witnesses, the Court examined the purposes and clarity of the statutes. It found Title III to be “a comprehensive scheme for the regulation of electronic surveillance. [Citation omitted.] Title III authorizes the interception of private wire and oral communications, but only when law enforcement officials are investigating specified serious crimes and receive prior judicial approval, an approval that may not be given except upon compliance with stringent conditions. [Citations omitted.] If a wire or oral communication is intercepted in accordance with the provisions of Title III, the contents of the communication may be disclosed and used under certain circumstances. [Citations omitted.] Except as expressly authorized in Title III, however, all interceptions of wire and oral communications are flatly prohibited.” (Id., at p. 46.) The opinion in Gelbard continues at length and makes it clear that the statutes are extremely clear as written and are to be strictly applied.

Not only is the Court of Appeal in the present case out of step with the sounder federal appellate reasoning, the opinion also flies in the face of California law and policy. It seems to be conceded by all in the present case that even if the exclusionary provisions of the California Penal Code do not apply, the conduct involved clearly violated the provisions of section 631 and arguably of section 632 as well. Further, such conduct is regarded in California not only as giving rise to criminal action, but also to civil action for damages. (Penal Code § 637.2.) Thus, the so-called “civil-criminal” distinction found in the cases which the Court of Appeal found persuasive is not a distinction in California. Further, Civil Code section 4361 expressly provides that any evidence collected in violation of the California wiretap statutes is also inadmissible “in any proceeding for dissolution of the marriage or legal separation or for a declaration of void or voidable marriage.” If that were not enough to make it clear that interspousal wiretapping was against California law and policy, that section continues that “If it appears that such a violation exists, the court may refer the matter to the proper authority for investigation and prosecution.” (Ibid.; cf. Self v. Self (1962) 58 Cal.2d 683 [no spousal immunity from suit].) These factors to consider in choosing its method of analysis were brought to the attention of the Court of Appeal, but it ignored them as well as the language of the federal statutes.

In Halpin v. Superior Court (1967) 6 Cal.3d 885, this Court had no problem at all simply looking at the language of the federal statute and applying it to hold inadmissible a conversation between Halpin at a jail phone and his wife in San Diego. (Id., at p. 900.) Such a bright line interpretation has benefits other than conformance with the federal policy and statutory language, state policy, and respect for the Congress. Strict enforcement prevents having other people wonder and experiment with the extensions suggested by cases implying exceptions, and it avoids liability for law enforcement personnel (cf. Malley v. Briggs (1986) 475 U.S. 335 [89 L.Ed.2d 271, 106 S.Ct. 1092] noting immunity as a defense is limited).

This Court should grant review to establish California’s interpretation of federal law in regard to Title III, and particularly in regard to whether or not a telephone call can be made with the expectation that it will not willfully be intercepted and recorded, especially in an indiscriminate manner as that exercised by Joe and his tapes. As may be seen, this is a problem which extends beyond the strictly criminal realm and goes to the very central way of how life is conducted in an modern society. Rarely is the issue as fully developed as it is in the present case, and equally rare is the opportunity to fully consider so important an area in terms of the interrelationship of the state and federal laws, as well as to cover the constitutional provisions previously discussed. The federal question should answer the case in favor of reversal on its own, or the state issues might, depending on where one starts. Either way, however, it is clearly important that this Court’s guidance on how such questions should be analyzed be given quickly.

The federal split has caused confusion among its circuits, and the same split is bound to take place in California, both among those who are subject to the law and in the courts. It is respectfully suggested that in addition to being an important question of law, this Court should also grant review before other cases (and the author has already been contacted by at least one attorney who states she has a similar case going into court) generate further confusion. Uniformity is particularly important in this area of the law, a telephone call from one district to another, as from one state to another, requires confidence in that communication. This is an area which is particularly well-suited to enforcement of legislative directions. The method of analysis employed by the Court of Appeal in this case was far too subjective and strayed far from the language the United States Supreme Court and apparently most federal districts find clear.

At least two law enforcement officers failed to recognize that Joe was breaking the law. The district attorney’s office clearly did not acknowledge the fact that their dissemination of the conversation in the courtroom was illegal. The trial court had no problems, nor did the appellate court. Yet, long before the marriage, even as Joe was a rejected suitor, he was listening in a manner that his own daughter characterized as being a bit crazy. He tapped, he recorded, he listened, he made master tapes, and no one thought to tell him it was wrong. The Court of Appeal states this is not illegal conduct, and thus creates grave problems in California. Someone must say that the invasion of privacy rights granted by state and federal lawmakers is forbidden in the strongest terms by the California Constitution, the California Legislature, and the United States Congress. Each contains a clear statement, and those laws contain an enforcement provision which should be honored until the lawmakers change it. Whether the appellate court agrees or not, the law exists as written. Now, it is up to this Court to enforce it.

Primarily, though, review should be granted because of the importance of this issue. No person could accept a call, as Mr. Mark did, nor make a call to a residence, and reasonably expect it to be confidential if this opinion correctly states the law. Right now, it is the undisputed California case defining one’s rights to privacy in telephone conversations between private parties where one instrument is in a residence. The telephone is simply no longer a means for private conversation.

[The opinion in the case states:

We granted review limited to the issue of the admissibility of the telephone conversations secretly recorded by the victim. [Footnote omitted.] For the reasons set forth below, we conclude that under Title III the contents of the tapes could not properly be introduced into evidence. Because of the critical role played by the tapes at trial, we further conclude that the error requires reversal of the judgments of conviction.

(People v. Otto (1992) 2 Cal.4th 1088,1092.)]

Sample Necessity for Review Discussion

[Note: Taken from a grant and hold case, later dismissed with numerous others, when the Legislature changed the law on the statute of limitations provisions while the case was pending.]

Necessity for Review

A review is necessary because the opinion below is in conflict with recent and past opinions of other districts and because important questions of law are presented which are of statewide importance. (Calif. Rules of Court, rule 29(a).)

As explained in the following discussion and argument section, the decision in this case is at odds with numerous cases and principles which have been well-established by such cases. (E.g.s: People v. Zamora (1976) 18 Cal.3d 538; Harris v. Superior Court (1988) 201 Cal.App.3d 642, 628; People v. Whitfield (1993) 19 Cal.4th 1652; People v. Chapman (1975) 47 Cal.App.3d 597.) It explicitly disagrees with the very recent opinion of the Fifth District in People v. Garcia (1995) 33 Cal.App.4th 119. It holds that there is no need to allege facts to show that the crimes are within the statute of limitations conditions and that there is no need that the crime actually be found to have taken place within the period specified in that the word “conviction” means something else. It essentially abrogates the provisions of Penal Code section 803, subdivision (f).

That section provides an exception to the normal statute of limitations in regard to charging lewd conduct with a child. It was the product of legislative determinations which resulted in the addition of conditions to its applicability, and the Sixth District in its self-vacated original opinion in this case found that the amended complaint on which it now relies was inadequate but that the prosecution commenced on time when the case was bound over to the superior court. Apparently discovering the bind-over order followed the limitations period and would not suffice, the opinion was withdrawn. The new opinion finds the amended complaint sufficed. This result oriented decision simply does not square well with established principles or law, and the Sixth District has had to scramble but has managed to do so because there is a lack of definitive authority from this Court on the language and application of the exception to the normal statutory period. The construction and analysis provided by the Sixth District should be reviewed, both because of the manner in which the statutory enactment was judicially rewritten and because of the confusion caused by the effort to affirm.

The opinion is also in direct disagreement with the reasoning of the Fifth District on the interpretation of the statute in regard to whether or not the defendant must be convicted of one of the predicate crimes required for the exception subdivision to apply. This, particularly in combination with the unusual finding of the Sixth District that the exception need not be alleged, is bound to lead to confusion among all the districts and trial courts in determining the jurisdictional power to proceed and in regard to whether a jury determination is necessary or what instructions should be provided.

The Sixth District also permits the addition of charges of a different nature than those charged within the statutory period, and it permits amendment of those charges following the limitations period to cover acts outside the statutory period. The statute in question here, Penal Code section 803, subdivision (f), establishes the same sort of operative pattern as the newest exception, subdivision (g), enacted following the events in this case but not requiring a current offense and requiring other conditions in order to qualify as an exception applicable to charges outside the normal limitations period. The dangers of the reasoning of the Sixth District in regard to subdivision (f) may be exacerbated when it is applied to subdivision (g). Although the Sixth District refused to take judicial notice of materials submitted by the appellant, it is clear that teachers groups, defense groups, and others all have a considerable interest in the limitations on commencing lewd conduct prosecutions. The Legislature’s efforts to balance this broad range of interests has been set aside by the Sixth District, apparently as a result of groundless concerns. Review by this Court is necessary to resolve the conflicts and provide a definitive interpretation of the charging requirements intended to enable the exception provided in section 803, subdivision (f), to apply.

Sample Necessity for Review

[Note: Taken from a successful petition filed by Jim Fahey
in People v. Humphrey (1996) 13 Cal.4th 1073.]

Necessity for Review

In California, a homicide may only be justified as an act of genuine (i.e., “perfect”) self-defense if, at the time of the killing, two things were true: (1) The defendant subjectively feared imminent death or great bodily injury; and (2) the defendant’s fear was objectively reasonable, in that a reasonable person would have had such a fear. (Penal Code section 197 and 198; CALJIC No. 5.12.) If the defendant had a subjective fear of imminent death or great bodily injury, but said fear was objectively unreasonable, then the homicide was committed in “imperfect self-defense” and the defendant is guilty of voluntary manslaughter. (People v. Flannel (1979) 25 Cal.3d 668, 674-680.)

The Fourth and Fifth Appellate Districts have held that when a chronically battered woman kills her abuser and asserts she did so in self-defense, expert testimony on Battered Woman Syndrome (“BWS”) is admissible to show the woman had a subjective fear of imminent death or great bodily injury, but absolutely inadmissible to show said fear was objectively reasonable. (People v. Day (1992) 2 Cal.App.4th 405, 414415; People v. Aris (1989) 215 Cal.App.3d 1178.) In the case at bar, the Fifth District has reiterated this holding. (Opinion, pp. 7-9.)

As petitioner will explain in the “Argument” portion of this petition, the Fourth and Fifth District are very clearly in error, since: ( 1) their holdings are irreconcilable with settled principles of California law; and (2) their holdings are irreconcilable with the holdings of numerous other jurisdictions which have recognized that, under proper circumstances, BWS evidence may tend to establish objective reasonableness. Review of this case is thus necessary for two reasons–first to correct the appellate courts’ errors of state law regarding the admissibility of BWS evidence; and second, to bring California in line with other jurisdictions in the same respect.

[The opinion in the case in which review was granted states the issue:

“The Legislature has decreed that, when relevant, expert testimony regarding “battered women’s syndrome” is generally admissible in a criminal action. (Evid. Code, § 1107.) We must determine the purposes for which a jury may consider this evidence when offered to support a claim of self-defense to a murder charge.”

(People v. Humphrey (1996) 13 Cal.4th 1073, 1076.)]