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The People v. Rufino Acevedo et al

October 3, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RUFINO ACEVEDO ET AL., DEFENDANTS AND APPELLANTS.



APPEAL from a judgment of the Superior Court of Los Angeles County. Bob S. Bowers, Jr., Judge. (Los Angeles County Super. Ct. No. BA302020)

The opinion of the court was delivered by: Chaney, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Affirmed.

The appellants were arrested on charges arising from seizures of over 350 kilograms of cocaine, 50 pounds of methamphetamine, 650 pounds of marijuana, firearms, and more than $1,200,000 in illegal proceeds, resulting from investigations involving court-authorized wiretaps. After being convicted on drug trafficking charges, they challenge the trial court's refusal to compel discovery of redacted and sealed portions of the documentation supporting the wiretap authorization orders, and its refusal to suppress the resulting wiretap and other evidence that led to their arrest. These rulings, they contend, violated their rights under state and federal law. We will affirm.

STATEMENT OF THE CASE

A 14-count information, filed October 31, 2008, charged appellants Rufino Acevedo, Steven Montes, Augustin Alvarez and Omar Cruz (and one other person not a party to this appeal) with some or all of the following crimes: conspiracy to commit possession and transportation of cocaine for sale (Pen. Code, § 182, subd. (a)(1)),*fn2 Health & Saf. Code, §§ 11351, 11352); possession for sale, and transportation, of a controlled substance (cocaine) (Health & Saf. Code, §§ 11351, 11352, subd. (a)); possession of money or instruments over $100,000 from sales of cocaine (Health & Saf. Code, §§ 11370.6, subd. (a)); and false compartment activity (Health & Saf. Code, §§ 11366.8, subd. (a)).*fn3 The information also alleged weight enhancements with respect to the controlled substances, ranging from one to 80 kilograms. (Health & Saf. Code, § 11370.4, subds. (a)(1), (a)(6).)

Appellants pleaded not guilty and denied the allegations. After their motions for discovery of wiretap documentation and to suppress wiretap evidence were denied, they pleaded no contest and were convicted.

The appellants' contentions in this appeal arise from the trial court's denial of their motions for discovery of unredacted documents supporting the wiretaps that led to their arrests, and for suppression of the evidence resulting from the wiretaps.

The Wiretap Orders

Between November 3, 2005, and April 2006, law enforcement agencies obtained orders signed by Judges Larry P. Fidler and Curtis B. Rappe of the Los Angeles Superior Court (joined in one instance by a judge of the Riverside Superior Court) authorizing seven wiretaps involving 14 cell phones allegedly used by Montes. The orders included the magistrates' findings of probable cause to believe that defendant Montes and others "have committed, are committing and are about to commit" specified drug trafficking offenses, that communications concerning the crimes would be obtained by requested wiretap interceptions, and that "[n]ormal investigative procedures have been tried and have failed and appear to be unlikely to succeed if tried and/or are too dangerous." (See § 629.52.) Each of the orders also provided that the order, the application supporting it, and the intercepted communications would be sealed pursuant to the official information privileges and procedures of Evidence Code sections 1040 through 1042, and the decision in People v. Hobbs (1994) 7 Cal.4th 948 (Hobbs).*fn4

The information obtained as a result of the wiretaps led to the arrest of Montes and each of the other appellants, for their participation in a drug trafficking operation headed by Montes, involving the transportation of large amounts of cocaine from Mexico to Southern California and other locations around the country.

Discovery and Disclosure of Redacted Wiretap Authorization Documentation

Following the filing of the complaint in May 2006, appellants' counsel were provided with copies of the wiretaps' supporting affidavits and investigative reports; however, those documents were redacted, heavily in some places, in order to conceal portions that the law enforcement agencies believed would reveal privileged official information or compromise the identity of confidential informants. The documentation that was provided to the defendants consisted of a list of 40 overt acts supporting the felony complaint's conspiracy charges, the affidavits of Special Agents Salaiz and Wilde of the California Department of Justice Bureau of Narcotics Enforcement supporting the wiretap requests, as well as six-day reports and investigative reports from the wiretaps, and letters setting forth the prosecution's refusal to provide unredacted copies of further supporting documentation.

According to these documents, the information obtained from the wiretaps and from other methods of investigation between November 2005 and April 2006 led to seizures of 353 kilograms of cocaine, 50 pounds of methamphetamine, 659 pounds of marijuana, five firearms, and more than $1,200,000 from illegal drug transactions. Montes and the other appellants were arrested at various locations, including Chicago, Illinois and California.

On September 1, 2006, Montes, joined by the other defendants, moved in the trial court for discovery of the unredacted wiretap documentation.*fn5 Their motion sought disclosure of the documentation in two categories: the unredacted affidavits supporting the applications for wiretap authorization orders, and the unredacted transcripts and investigative reports prepared during and after the intercepts, including the text of all intercepted statements made by Montes. The motion argued that the refusal to produce unredacted copies of the investigative reports and affidavits was inconsistent with the prosecution's discovery obligations, and that the redactions deprived the defendants of their constitutional and statutory rights to challenge the wiretaps. The initial motion focused solely on the right to discovery as a basis for litigating the wiretaps' necessity, expressly disclaiming any intention to seek disclosure of the identity of any confidential informant or to challenge the existence of probable cause for the wiretaps.

The prosecution opposed the discovery motion, invoking the privileges of Evidence Code sections 1040 and 1041, the exemptions from discovery set forth in Penal Code sections 1054.6 and 1054.7, and the provisions of Evidence Code section 1042 and the procedures approved in Hobbs for in camera determination of the validity of the privilege claims. (Evid. Code, § 1042, subd. (d).) The appellants argued in reply that the Hobbs procedures apply only to search warrant affidavits, not wiretap authorization affidavits; and that the statutory privileges cannot overcome the defendant's right to mount a meaningful challenge to the sufficiency of the wiretaps' supporting evidence.

Order for Partial Disclosure of Redacted Documentation

On October 13, and November 8, 2006, the trial court held hearings in camera, out of the presence of the appellants and their attorneys, under the authority of Evidence Code section 1042, subdivision (d), and Hobbs, ordering the transcripts of those hearings sealed. At a November 16, 2006 hearing, with all parties present, the trial court confirmed its earlier rulings that the Hobbs procedures would be applied to hear and determine the issues raised by the defendants' discovery motion (as well as an anticipated future motion to suppress the wiretap evidence). With respect to the redactions, the court denied the motion to require unredacted production of all the documentation. However, it also ruled on the basis of its in camera review of the unredacted documents that certain of the redactions were not justified, and that those portions of the unredacted documents must be produced to appellants' counsel.*fn6 The defendants later received the additional unredacted portions of the record that had been ordered disclosed.

Motion to Suppress Wiretap Evidence

On February 25, 2008, the appellants moved in the trial court to suppress all evidence derived from the wiretaps, on grounds that the supporting affidavits were insufficient to establish the required elements of probable cause and the necessity for the wiretaps. The trial court then held another in camera hearing, again reviewing the unredacted and sealed wiretap documentation in the presence of the prosecution and the affiants, but outside of the presence of the defendants and their counsel.*fn7

On October 14, 2008, after having reviewed the unredacted affidavits in camera, the court ruled that the documentation sufficiently supported each of the wiretaps, and denied the motion for suppression of the wiretap evidence. Specifically, it found that the facts set forth in the wiretap applications were sufficient to support the issuing magistrates' determinations that probable cause existed to justify the wiretaps' issuance, and that they had acted within their discretion in ruling that necessity for the wiretaps was shown by evidence that other investigative procedures had been tried and had failed, or reasonably appeared to be either too dangerous or unlikely to succeed.*fn8

The Preliminary Hearing

Special Agent Salaiz testified at the ensuing preliminary hearing, setting forth his experience as a special agent of the Department of Justice Bureau of Narcotics Enforcement, his identification of the defendants, his participation with another specified special agent in obtaining the wiretap orders used in this case, and his monitoring of targeted telephone communications. Special Agent Salaiz and other law enforcement officers testified that wiretap interceptions of communications to and ...


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