190 Cal. App. 4th 400
Cal. Ct. App.2010Background
- Magistrate dismissed the felony complaint after finding intentional eavesdropping by DOJ special agents violated due process.
- Evidence showed three respondents and their counsel were overheard while reviewing confidential medical records and attorney-client communications.
- The overheard conversations included Russian and English exchanges; a Russian-speaking agent sat close to Gorin and Gravich.
- The People challenged the magistrate’s dismissal as reviewable under Penal Code §871.5, and the magistrate relied on Morrow v. Superior Court in part.
- The superior court denied reinstatement of the complaint; the People appealed under §871.5 to seek reinstatement and appropriate relief.
- Court held that the eavesdropping implicated attorney-client privilege and that dismissal is not the proper remedy; exclusionary relief is appropriate instead.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the magistrate’s dismissal was reviewable under §871.5 | People avançed dismissal under Morrow grounds | Respondents argued §871.5 applies | Yes; §871.5 review applies and court can assess legal propriety of dismissal |
| Whether attorney-client communications were privileged and protected | Overheard communications were privileged | Some conversations may not be privileged due to joint defense | Yes; communications were privileged and cannot be disclosed without consent |
| What is the proper remedy for intentional eavesdropping | Dismissal is appropriate to deter misconduct | Dismissal is too drastic; alternatives exist | Exclusion of overheard communications and derivative evidence; not dismissal |
| Does Morrow govern the present case distinguishing features | Morrow controls punishment via dismissal | Distinctions apply; not a courtroom setting and different actors | Morrow distinguished; dismissal not warranted here; different factual posture |
| Can the People seek exclusionary relief on appeal if not at preliminary hearing | Remedy can be fashioned by superior court on appeal | Magistrate’s scope may limit sanctions | Yes; exclusionary remedy may be ordered and fashioned by the superior court |
Key Cases Cited
- Morrow v. Superior Court, 30 Cal.App.4th 1252 (Cal. Ct. App. 1994) (outrageous eavesdropping; dismissal appropriate in courtroom setting)
- People v. Gutierrez, 45 Cal.4th 789 (Cal. 2009) (attorney-client privilege scope; nonwaiver protections)
- Schaffer v. Superior Court, 185 Cal.App.4th 1235 (Cal. Ct. App. 2010) (preserving confidentiality during records inspections; accommodations)
- People v. Mimms, 204 Cal.App.3d 471 (Cal. Ct. App. 1988) (§871.5 review; reinstatement procedures)
- OXY Resources California LLC v. Superior Court, 115 Cal.App.4th 874 (Cal. Ct. App. 2004) (nonwaiver and joint defense protections under Evid. Code §912(d))