(Super. Ct. No. BA331846) (Los Angeles County), John L. Martinez, Judge.
The opinion of the court was delivered by: Yegan, Acting P.J.
CERTIFIED FOR PUBLICATION
What is the appropriate judicial remedy for interference with the right to counsel by law enforcement agents who intentionally eavesdrop on attorney-client privileged communications? A magistrate ordered outright dismissal of the criminal case. This surely would have a deterrent effect upon law enforcement agents. We balance the competing rights at stake and conclude that dismissal is too drastic and would be "judicial overkill." Exclusion of overheard communications and any derivative evidence flowing therefrom is the appropriate remedy. This should deter over-zealous law enforcement agents as there is nothing to be gained by such unlawful activity. At the same time, the Attorney General's client, the People of the State of California, will not be stymied in their attempt to enforce criminal law and recoup public money allegedly "stolen" by respondents.
The People appeal from the superior court's order denying their motion to reinstate a felony complaint pursuant to Penal Code section 871.5.*fn1 Prior to the preliminary hearing, a magistrate dismissed the complaint concluding that intentional eavesdropping by special agents of the Department of Justice was so outrageous that respondents had been denied due process of law. The eavesdropping occurred while respondents Anna Gravich, Gersha Gravich, and Peter R. Shrier and counsel were reviewing evidence at the Attorney General's office. Respondents Arkady and Ella Rozenberg were not present.
We reject respondents' contention that the dismissal of the complaint was not subject to superior court review under section 871.5 because the dismissal was not pursuant to any of the statutes listed in that section. The magistrate did not cite any authority for his ruling but the motion was predicated on this court's opinion in Morrow v. Superior Court (1994) 30 Cal.App.4th 1252 (Morrow) which, in part, was based upon section 1385, which is listed in section 871.5. (See infra pp. 8-9.) The magistrate's ruling therefore was subject to section 871.5 review.
We conclude that the conversations in the Attorney General's office were privileged attorney-client communications that cannot be disclosed without the consent of the three respondents whose conversations were overheard. Substantial evidence supports a finding that three special agents of the Department of Justice intentionally eavesdropped on communications in both the English and Russian languages between the three respondents and their attorneys. As we shall explain, our holding in Morrow does not require dismissal here. Accordingly, we reverse.
Factual and Procedural Background
The People filed a two-count felony complaint against respondents. Count 1 charged grand theft in violation of section 487, subdivision (a). The count included special allegations that the value of the property taken exceeded $1.3 million (§ 12022.6, subd. (a)(3)) and that the amount of the theft exceeded $100,000. (§ 1203.045.) Count 2 charged the filing of fraudulent Medi-Cal claims in violation of Welfare and Institutions Code section 14107, subdivision (b)(1).
Before a preliminary hearing was held, Anna Gravich moved to dismiss the complaint "pursuant to the holding" in Morrow. The other respondents joined in her motion. The motion was supported by the declarations of three of respondents' attorneys. They declared as follows:
"This case involves allegations of Medi-Cal fraud arising out of alleged illegal practices occurring at the Downtown Medical Clinic.... [A] search warrant was issued for patient records and files maintained at the clinic. Thousands of files were seized." Respondents "are operating under a joint defense agreement."
The parties agreed that respondents and their counsel would be allowed to "confidentially examine the seized medical files." The Attorney General "required that state law enforcement agents assigned to the case be present for examination of the medical files to ensure the integrity of the evidence." It was agreed that the agents' "visual monitoring of the files would not include monitoring of the conversations between clients and attorneys."
In October 2008 respondents Anna Gravich, Gersha Gravich, and Shrier reviewed the medical files "in a very large conference room" at the Attorney General's office in Burbank. Respondents were accompanied by Dmitry Gorin, counsel for Anna Gravich; Todd Melnick, counsel for Gersha Gravich; and Vicki Podberesky, counsel for Ella Rozenberg. Several agents were "on the perimeter of the room monitoring the review of evidence." These agents "listened in on and prepared a report documenting the confidential communications between counsel and clients." Gorin spoke to Anna Gravich "in Russian in a hushed tone." The "government" intentionally eavesdropped on their conversation by placing "a Russian-speaking agent in close proximity" to them. This agent was seated approximately five to ten feet away. Counsel became aware of the eavesdropping when they received an agent's report containing "confidential attorney-client conversations, including those that took place in Russian."
The report was attached under seal to Anna Gravich's motion. Because the report remains under seal, we cannot, and do not, disclose the content of the attorney-client communications overheard by the agents. According to the report, Special Agent J. Timothy Fives was present in the conference room "for a short period of time." Fives speaks Russian. He was "sitting at a table near Gorin and Anna Gravich who were speaking in Russian while they were looking through a chart." He overheard their Russian conversations "as they went through charts page by page." When Fives was not present in the conference room, Special Agent Rochelle Deroian overheard communications in English between Gorin and both Anna and Gersha Gravich. Special Agent Laura Wilbur overheard conversations in English between Shrier and Podberesky as they "sat together reviewing charts."
The People did not file written opposition to respondents' motion. A hearing on the motion was conducted but the People did not present any evidence at the hearing. The prosecutor told the magistrate that "the material facts are not in dispute." The prosecutor went on to state: "If there's any dispute, it's as to what arrangements were made between the defense and the special agent [Wilbur], who made the arrangements. As far as who was in the room, where people were, what was overheard, I don't think that those are really in dispute." The prosecutor admitted that Wilbur asked "the Russian-speaking agent" (Fives) to sit "within a few feet" of Gorin and Anna Gravich.
The prosecutor characterized respondents' motion as "really a matter of law in the sense of applying the law to these facts that are non-disputable." The magistrate asked: "[T]he People have said that the facts, as stated in the declarations of defense counsel, are essentially correct and, especially, as to the major points. [¶] Is that correct?" The prosecutor replied, "Yes, your honor."
During argument on the motion, the prosecutor gave his own, unsworn version of events: "[T]here was no discussion [with respondents' counsel] as to confidentiality in the sense of not listening in." There was no "agreement that whatever was said and overheard will not be used against you." Agent Wilbur had arranged for herself and two other agents to be present in the conference room while respondents and counsel were reviewing 80 medical files. The room was about 15 feet by 30 feet and contained three long conference tables. Wilbur had also selected a fourth agent, Fives, for "his Russian fluency knowing that the defendants spoke Russian and, also, one of the defense attorneys spoke Russian." The prosecutor "was unaware of these arrangements."
Unlike the other agents in the conference room, Fives had not worked on the case. The prosecutor came into the room and "did observe Agent Fives sitting across the table from Mr. Gorin and his client." Fives was in the conference room for only about 15 minutes. After respondents and counsel had left the room, Wilbur told the prosecutor that the agents had overheard conversations between respondents and counsel. The prosecutor told Wilbur to prepare a report about what had been overheard.
The prosecutor argued that no sanctions should be imposed because respondents and counsel did not have a reasonable expectation of privacy as to the overheard conversations. The prosecutor asserted: "What we simply have is, that these attorneys spoke too loud... so that there were conversations that were able to be overheard" by law enforcement agents whose presence was known to everyone. "[I]t's simply a matter of the agents being in a place that they were entitled to be. They overheard conversations without making an effort to overhear them...." "These defense attorneys took a chance by bringing their client[s] into the Attorney General's office to have confidential communications with them. That was their intent." The prosecutor acknowledged that the "defense attorneys were not aware that their conversations were being overheard." The attorneys "were speaking in low tones" because "[t]hey knew that if something was overheard, it could be used against them." But "the fault lies with the person who was speaking too loud... when they knew that a law enforcement officer was so close by and would overhear."*fn2
Attorney Gorin protested: "Putting a Russian-speaking agent, intentionally, in front of me, knowing that... the review is going to be confidential... is completely and totally violative [of] what our system is all about. [¶] They knew in advance... that the lawyers and the clients were going to talk about sensitive confidential information." "[T]hey set a trap and took advantage of it." "I didn't think anybody could hear me. We were huddling shoulder to shoulder with about three boxes in front of me." ...