Justia Lawyer Rating
Best Attorneys of America
Super Lawyers
Superior DUI Attorney 2017
10 Best Law Firms
Top One Percent 2017
The National Trial Lawyers
Best of Thervo 2017
10 Best Law Firms
Criminal Defense Attorneys

Wiretap Application in DA’s Absence, Need to Explain?

In a Nutshell: An affidavit for a wiretap warrant signed by a district attorney who is not authorized to sign such affidavits is not per se invalid and the recordings from the wiretap are not inadmissible if the district attorney does not explain why he is signing the affidavit because another authorized signed is absent.           
In late March 2006, Los Angeles County Sheriff’s Department Deputy Maria Rosa was shot as she was leaving her Long Beach home on Eucalyptus Avenue for work one morning at about 5:45 a.m. One .22-caliber bullet entered her right shoulder and another .22-caliber bullet entered her left abdomen.  A pathologist examined her body and concluded she bled to death from internal bleeding caused by the gunshots.

The shooting took place as Rosa was opening her car’s trunk.  Evidence suggested she tried to defend herself, but her gun jammed.  The suspects did not take her gun, her purse, her car or her wallet. 

A bicycle was left at the scene, suggesting the robber rode a bike to the location and randomly came upon Rosa, but then left on foot.

That same morning, about 5:45 a.m., Genaro Huizar arrived home to his home on Eucalyptus Avenue.  After parking his car, he noticed two men on bicycles ride past him.  One of the bicycles was a “ten speed” and the other was a smaller one.  After entering his house, he heard three to five gunshots.

The same morning, two men were delivering newspapers on Eucalyptus Avenue and came upon a woman laying on the ground by her car with its trunk open.  They stopped and attempted to perform CPR on the woman and called police.

The Los Angeles Sheriff’s Department recovered DNA from the bicycle and it matched to Frank Christopher Gonzalez.  By the time police had identified Gonzalez, he was in custody on unrelated charges.

Using confidential informants, police focused on Gonzalez and a man named Justin Flint.

To gather information from Gonzalez and Flint, police began an extensive effort to confirm their involvement.  They had each transported to court from jail on a bus with recording devices.  They also put each man in holding cells at jail with recording devices and rotated in undercover police officers into the cell posing as inmates.  Both Gonzalez and Flint shared a great deal of information with the undercover officers, confirming the DNA match.

In addition to the use of undercover officers, law enforcement obtained an order authorizing a wiretap on six different phone lines that were associated with Gonzalez and his acquaintances.  Pursuant to these wiretaps, police intercepted conversations between Jessica Rowan, who had been Gonzalez’s girlfriend for 12 years and was the mother of his two children, fabricating an alibi for Gonzalez.  It also appeared from the conversations that Gonzalez did know Rosa was a police officer, as she showed Gonzalez her badge before Gonzalez shot her.

In the application for an order authorizing wiretaps, John Spillane, the chief deputy district attorney in Los Angeles, attested that he was designated to act as district attorney in DA Steve Cooley’s absence.

Gonzalez was later charged with Rosa’s murder, among other crimes revealed in the wiretap. A jury in the Long Beach Superior Court found Gonzalez guilty of first-degree murder, among other crimes and in the penalty phase, returned a death verdict.  The trial court judge entered a judgement of death.

On automatic appeal to the California Supreme Court, Gonzalez raised numerous arguments, but his article will narrow its scope to his argument that the trial court judge should have granted his motion to suppress any evidence derived from communications law enforcement intercepted pursuant to the wiretap order because the application was invalid, as there was no proof that District Attorney Steve Cooley was actually absent from the position when Spillane filed the application.

The California Supreme Court rejected this argument and provided a lengthy discussion of the proper procedures for obtaining a wiretap order.  The court found nothing in the wiretap statute, Penal Code § 629.50(a), that did not permit Spillane to sign an oath or affidavit as he did, explaining that he was the person designated to act as the district attorney in the district attorney’s absence. 

Gonzalez’s argument distilled down to a suggestion that the wiretap order was obtained by fraud because Cooley was not actually absent for providing such an affidavit and Spillane submitted his affidavit when Cooley was available, but Spillane was a rogue district attorney, providing such an affidavit without telling Cooley and that Cooley instead should have been involved.  Gonzalez’s argument was based on United States v. Perez-Valencia (9th Cir., 2013) 727 F. 3d 852, wherein the court set strict limits on what subordinate district attorneys could act on the District Attorney’s behalf in seeking a wiretap order without the District Attorney’s authorization and absence.

The Supreme Court did not agree with Gonzalez that the wiretap application must include specific information regarding the circumstances of the DA’s absence.  It found that Penal Code § 629.50(a) does not require that the application describe the circumstances of the district attorney’s absence and declined to read into the statute a requirement that such a specific explanation be provided because it would “violate the cardinal rule that courts should not add provisions to a statute” (quoting Adoption of Kelsey S. (1992) 1 Cal. 4th 816, 827), adding that if the Legislature believes such additional safeguards would be prudent, it is of course free to amend the statute accordingly.

The citation for the California Supreme Court ruling discussed above is People v. Frank Christopher Gonzalez (2021) 12 Cal. 5th 367, 287 Cal. Rptr. 3d 2, 499 P. 3d 282.

For more information about wiretap and warrant issues, please click on the following articles:
Client Reviews
"Thank you so much for putting so much effort in this case. We really appreciate it and we are happy that all turned out well." S.A., Torrance
"Greg Hill did an outstanding job on every level. He was efficient, thorough, knowledgeable, courteous, responsive & brilliant. He welcomed my input and my concerns. . . from the first conversation to the last - I always felt 'it mattered' to him." S.C., Rolling Hills Estates
"Thanks again for your hard work. We want you to know that we are very appreciative of all that you have done [on our son's] behalf. With warmest regards." L.H., Torrance
"Dear Greg, Thank you again for all your help. Your professionalism and thoroughness is greatly admired. I will definitely recommend you to my friends if they ever need legal help." V.L., Carson
"Thanks for investing in my case. I talked to other attorneys out there and they had an arms-length of attitude, but not you. Your intensity and interest helped a lot." C.R., Pomona