Filed 4/18/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

COUNTY OF LOS ANGELES,

Plaintiff and Appellant

,

v.

LOS ANGELES COUNTY CIVIL SERVICE COMMISSION

,

Defendant and Respondent ;

CARLOS ARELLANO,

Real Party in Interest and Respondent. B2 78519

(Los Angeles County Super. Ct. No. BS156018)

APPEAL from a judgment of the Superior Court of Los Angeles C ounty, Mary H. Strobel , Judge. Affirmed

. Peterson•Bradford•Burkwitz, Avi Burkwitz, Craig
Marinho and Jessica Y. Lee for Plaintiff and Appellant

. No appearance for Defendant and Respondent.
The Gibbons Firm and Elizabeth J. Gibbons for Real Party
in Interest and Respondent.2 Based on phone calls legally inte rcepted by law
enforcement during a drug trafficking investigation, investigators
came to believe that Carlos Arellano (Arellano) , then a detective
with the Los Angeles County Sheriff’s Department (Sheriff’s Department)

, wa s associating with known narcotic felons, using
his law enforcement status to obtain inside informati on from the department to provide to individuals involved in illegal narcotic activity, and was himself involved in c ultivating marijuana. As
the Sheriff’ s Department expanded its criminal investigation to
include Ar ellano, it sought a court order releasing the wiretap recordings, and tr anscripts from those recordings, to the Sheriff’s
D epartment for use against Arellano. The court’s order permitted the di strict attorney to release the wiretap evidence to the Sheriff’s Department and further authorized testimony regarding the evidence pursuant to Penal Code section 629.78. 1 Although the Sheriff’s Department closed its criminal investigation without filing charges, the department later sought to discharge Arellano from his position

. During the c ivil s ervice

c ommission hearing that followed , the Sheriff’s Department attempted to use the intercepted calls during the administrative proceeding. The hearing off icer granted Arellano’s motion to suppress the calls and ultimately recommended that the Arellano only receive a f

ive day suspension without pay. The c ivil s ervice

c ommis sion adopted the recommendation

. The County of Los Angeles then filed a petition for writ of administrative
mandamus in s uperior c ourt. The s upe rior c ourt denied the petition. We affirm

1 All further statutory references are to the Penal Code unless otherwise indicated.3 BACKGROUND
I. The i nitial i nvestigation Arellano was hired by the Sheriff’s Department in 1989.
Arellano later join ed the Sheriff’s Department Narcotics Unit a nd

was transferred to the Palmdale s tation as the filing detective on
loan. As part of t his assignment, Arellano would check to see if deputies had made any narcotics arrests
, review the suspect’s booking p ackets and files , and deter min e w hether the suspect might serve as a pote ntial informant. Arellano would also determine whether the suspect’s case should be sent to the
d istrict a ttorney ’s office for filing of criminal charges

. On February 23, 2009, the Sheriff ’s Department Narcotics
St rike Team (NST) conducted a c ontrolled purchase of cocaine

near the El Dorado r estaurant in Palmdale under the belief that
the restaurant’s owner s were involved in illegal conduct

. A rellano

, assigned to NST at the time

, was not aware of th is operation because he was still on loan to the Palmdale station

. After the controlled purchase was complete, Detective Angela Riggs told her supervisor

, Sergeant Phil Morris, that Arellano
was related to the owners of the El Dorado, Omar Monreal and
Francisco Monrea l. Detective Riggs also said that Arellano had
thrown a party at the El Dorado to celebrate his transfer from patrol to narcotics, despite d epartment al policies forbidding
fraternization with criminals. Although Arellano was not in fact
related to Omar M onreal or Francisco Monreal, Arellano did
know Omar Monreal

. Arellano also knew Eric Monreal , another Monreal brother, whom he had met at the El Dorado through
Omar Monreal. In March 2009, the h igh i ntensity d rug t rafficking a rea (HIDTA) task force began investigating Arellano to determine if4

he was engaged in any criminal activity. Det ective Mark Montoya worked as the lead crim inal investigator on the case. In April 200 9, HIDTA obtained se veral court

- ordered state w iretaps, issued by Judge Larry P. Fidler

. 2 A mong the interce pted calls
were 26 calls between Omar Monreal and others discussing illegal narcotic s activity. Two of the calls were between Omar
Monreal and a caller identified as UM845 and UM9068. After conducting voice comparisons of UM 845, UM90 68, and Arellano, five Spanish l inguists signed declarations opining that UM9068
and UM845 were Arellano

. On April 23, 2009, agents intercepted a call between Omar
Monreal and UM845 (Arellano) during which the two men discussed marijuana plants , money, and the weight of the product. During this conversation, Arellano told Omar that the
clone d plants he had purchased infested the other ma rijuana plants with “spider mites.” Arellano asked Omar about money
and told him that he (Arellano) needed the money

, “ Hey, what’ s up with the money dude? I need the money, man! ” After discussing the weight of the product and a getting a c ertain room “ready,” the conversation ended with Arellano telling Omar

s everal times “ [d] on’ t burn me man !” and that he w ould see Omar the next day

. On June 9, 2009, several hours after law enforcement
searched Omar Monreal’s residence, agents intercepted a call between UM9068 (Arellano) and Omar that appeared to disguise
the true nature of the call. The two discussed a traffic accident at
the intersection of “40th” and “ Avenue L” although investigators
concluded no such accident had occurred at that location.

2 Arellano was not a target subject in these wiretaps.5

Arellano told Omar

, “ Well, like I said, what ever you need, let me
know

. . . on this thing

. . . I c ould only te ll you what I hear.”
Arellano also told Omar “ [ w hatever you need ] [ or ] you guys or

your mom, your dad, anybody, your broth ers,

. . . [ call me ] .”
Arellano also told Omar

, “ they try to keep a lot o f things hush
hush because

. . . Y ou know

, they found out about me and then they found out that [stutters] that a lot of Deputies would hang
out there.”
On June 11 , 2009, agents intercepted a call between O mar and Eric Monreal. Omar and Eric discussed the purported traffic
accident at the inte rsection of 40th and Avenue L. Omar told
Eric that law enforcement were calle d to the accident and said,

“ Yeah, they went over there and I called Arellano and he call ed them so they could chill on ’em.”
On Jun e 16, 2009, agents intercepted a call betwee n Omar and Felipe Rios

. Felipe asked Omar if Arellano had called back yet, and Omar responded that he called Arellano three times today, but Arellano had not called back. On June 17, 2009, agents intercepted a nother call between Omar and Felipe Rios.
Om ar said Arellano had advised him how to conceal the fact that he (Omar) knew about an indoor marijuana grow and how to
disassociate himself from the grow location by showing that he
tried to evic t tenants from the home before the law enforcement
raid

. Oma r said that Arellano advised him to post eviction
notices

, “I just briefly spoke to him and he told me, ‘you know
what? Post the three (3) uh, the, the forty

- eight (48)
hours

. . . the notice and then we’ll go over there.’ ” Omar then said, “ So, I , I told him (Arellano) ‘cool

, we’ll get it done.’ Right
now I’ m about to print it out, give me about fifteen (15) minutes and I’ll print it out and we’ll post it.”6

II

. The i nvestigation into Arellano On June 25, 2009, t he Sheriff ’s Department Inte rn al
Cri min al Investigations Bureau (ICIB ) opened a criminal investigation into Arellano. On November 30, 2009, while the ICIB investigation proceeded , Detective Montoya and Deputy
D istrict A ttorney Jay Grobeson filed an application to Judge
Fidler for an order r eleasing wiretap recordings, and tr anscripts
of those recordings, to the Sheriff’s Department for use against
Arellano

. The a p plication sought “ authorization to release recordings and other materials (lin e sheets) for specific
calls

. . . to the Los Angeles County Sheriff Department for use in
an internal investigat ion.” The a pplication further stated that
the “ evidence derived therefrom [the intercepted recordings] are
relevant to an internal investigation by the Los Angeles County Sheriff Departmen t.” Detective Montoya’ s declaration in support of the

a pplication reitera ted that the recordings were relevant to the
Sheriff ’s Department inter nal investigation of Arellano: “ The Los Angeles County Sheriff Department is considering an internal
inves tigation into the actions of the deputy, and the recording(s) during this period of interceptions covered by the referenced Wiretaps is relevant to that investigation.” The declaration
further stated that “ [ i ] n order to proceed administratively to prevent any future public offense by Detective Carlos Arellano, the Los Angeles Sheriff Department needs access to the specific
related inte rcepted calls.”
On Decem ber 1, 2009, Los Angeles Superior Court Judge Larry P. Fidler signed an order authorizing the disclosure of those records pursuant to the a pplication. The order provided , in relevant part: “The People have made application to this court7

for an order pursuant to Penal Code Section 629.82. Th is court has read and considered said application. [¶] IT IS HEREBY ORDERED that the District Attorney for the County of Los Angeles may release such information and documentation, including, but not limited to : [¶] 1. Monitor Logs ;

. . . [¶]
2. Recor dings of intercepted calls ;

. . . [and] [¶] 3. Evi dence
d erived from these Wiretaps

. . . . [¶] The C ourt further authorizes pursuant to Penal Code § 629.82(b), testimony of the above items pursuant to Penal Code § 629.78. ” On July 6, 2010, D rug E nforcement A dministration Special Agent Vir ginia Water s and Detective Montoya concluded their
criminal investigation into Arel lano. In August 2010, the ICIB
closed its investigation without filing criminal charges because
Arellano’s intercepted conversations solely involved marijuana activity, which is not a prosecutable offense under Cali fornia

w iretap authority. After the ICIB closed its investigation , the
matter was referred to the Sheriff ’s Department Internal Affairs Bureau (IAB) based on Arellano ’s alleged violations of multiple
d epartment al policies. The IAB began its investigation in August
2010 and ended it a year later. As part of the IAB investigation, the Sheriff’s Department had access to the wiretapped calls

. In addition to the conduct described above, t he Sheriff’s Department also determin ed that Arellano performed favors for Eric Monreal and other individuals involved in illegal narcotic s activity. In August 2008, Eric Monreal was arrested for a felony
narcotics charge and placed on a probation hold, meani ng he was not to be released. Wi thout obtaining supervisor approval and despite the valid probation hold, Arell ano released Eric from jail

. It was s hortly after Eric’ s release that Arellano held a party at
the El Dorado to celebrate his transfer to the narcotics bureau

.8

The S heriff’s D epartment also determined th at Arellano
associated with a federal fugitive named Abraham Angulo. Angulo was Arellano’s brother

- in law although Arellano did not
report the relationship to the Sheriff’s Department

. In August 2008, Arella no asked a sergeant to determine if Angulo was
“wanted.” After Angulo’s status as a federal fugitive was confirmed , Arellano refused to provide information to enable the
Sheriff’s Departmen t to apprehend Angulo.
The Sheriff’s Department also found that Arellano engaged
i n unauthorized use of the j ustice d ata i nterface system (JDIC ). JDIC is a departmental database that allows employees to search for confidential information on suspects, criminals, and fugitives. Deputies must be certified annually on the JDIC system and have an individual password to log onto the system. Arellano was trained and certified to use the JDIC system on August 20,
1998. He never got recertified, however, and had been dependent upon support staff and other deputies to run his searches. On or about June 8, 2009, Arellano used the password belonging to Deputy Henry Corral to access the JDIC system and obtain information regarding several individuals engaged in criminal activity. On August 8, 2011, the Sheriff’s Department issued its
notice o f intent to discharge Arellano from his position of Deputy Sheriff citing multiple departmental policy violations. On August 24, 2011, the Sheriff’s Department issued its notice of final discipline fin ding that Arellano violated the department’s
Manual of Policy and Procedures relating to general behavior, prohibited association, fraternization, professional conduct, obstruction of an investigation, and false statements. Arellano9

was discharged from his position as Deputy Sheriff effective August 29, 2011

. III. The a dministrative h earing The Los Angeles County Civil Service Commission hearing regarding Arellano’s discharge took place from September 2012 to February 2014. During the hearing, Arellano filed a mo tion to suppress the wiretapped calls. The Sheriff’s Department opposed
the motion. The hearing officer granted the motion after find ing that Judge Fidler’s December 1, 2009 order permitting the wiretap evidence to be released d id not expressly provide that the
evidence could be used for administrative purposes. Instead, the hearing officer interp reted the order to authorize disclosure of the wiretap evidence only in criminal court or grand jury proceedings pursuant to section 629.78. On September 11, 2013, the Sheriff’s Departmen t filed an ex parte application seeking an order clarifying or amending Judge Fidler’s December 1, 2009 o rder

. During the hearing, Judge Fidler stated that al though the o rder as prepared by the
d istrict a ttorne y could be considered ambiguous, “ the a pplica tion clearly noted that they intended to use the results in an internal
affairs hea ring against [Arellano].” Judge Fidl er also stated that
his intent was “ to allow [the wiretap evidence] to be used not just in a trial, not just before a grand jury, but if they chose to proceed against the officer or do anything they could use the materials.” Judge Fidler fu rther noted, “ I would say this is a pret ty simply, cut and dry request. I gu ess I can understand where the hearing

o fficer, perhaps, had a problem. B ut if read in context, it is clear the order requested that I do so. Unfortunately, the district attorney referred to a section, a specific section that was contained in the order that would have prevented it, but if it’s10

read in its entirety

— and my order says I have read an d considered the application

— why would I sign it unless

— if I was planning on keeping something out, I would have stated it or written over it by hand.” Indeed, Judge Fidler concluded, “So I
intended

— my order intended that this material be used against [Arellano] in his administrative hearing. I can’t state it any
clearer than that.” According to Judge Fidler, the only thing preventing such use, “is a poorly drafted order from the district attorney.” Judge Fidler declined to modify the actual order, however, stating that he did not believe he was allowed do so. Judge Fidler also noted that the Sheriff’s Department and District Attorney could request an amendment of the order and he would consider comp lying with such a request

. The record does not reflect any subsequent request to Judge Fidler to amend
the order , however

. T he hearing officer upheld her decision to exclude the wiretap evidence based on Judge Fidler’s decision not to amend
the order. “I want the record to be c lear,” the hearing officer told the parties. “At no time did I think I needed a clarification of the
intent of the court. I always believed and still believe that it was the court’s intent to issue an order that would permit the use of the wiretap evidence in an administrative proceeding.” However, the hearing officer continued, she could not ignore “the letter of the order because I understand [Judge Fidler’s] intent.” Absent a
modification of the order , the hearing officer de termined she had no authority to a dmit the wiretap evidence in the administrative proceeding. The hearing officer declined to address whether California wiretap law permitted disclosure or use of the intercepted calls in an administ rative proceeding, stat ing she was11

“bound by the specific order of the court” and that the statutory interpretation would be left for appeal. Without the wiretap evidence, the Sheriff’s Department was only able to introduce evidence of Arellano’s use of another deputy’s creden tials to access the JDIC system as well as his unauthorized release of Eric Monreal from the probation hold. At the conclusion of the hearing, the hearing officer ultimately found that Arellano had only violated the Sheriff ’s Department policy prohibiting access to the JDIC system without certification. On June 25, 2014, the hearing officer issued a written decision recommending that the Sheriff ’s Department decision to
terminate Arellano be reduced to a five

- day suspension without pay. On March 18, 2015 , the c ivil s ervice c ommission issued an order adopting the hearing officer’s findings and recommendation to reduce Arellano’s discharge to a five

- day suspension. On May 13, 2016, the County of Los Angeles (the County) filed a petition for writ of administrative m andamus in s uperior

c ourt. On July 14, 2016, the s uperior c ourt denied the petition.
T he s uperio r c ourt found that Judge Fidler’s o rder only
authorized the Sheriff’s Department to use the intercepted calls in an internal investigation and not in an administrative law proceeding as the lat ter would involve a more public disclosure.
The s uperior c ourt further found that although the California Wiretap Act allows for disclosure of the wiretap communicati ons without a court order, the wiretap e vidence here did not meet the standard for disclosure to prevent a public offense under

s ection 629.82 , subdivision (b), because there was no evidence of ongoing miscondu ct or the imminence of Arellano’ s commission of a public offense.12 STANDARD OF REVI EW Under Code of Civil Procedure section 1094.5, there are two
alternative standards of review that a trial court uses to review a petition for writ of administrative mandamus. ( JKH Enterprises, Inc. v. Department of Industrial Relation s (2006) 142 Cal.A pp.4th
104 6 ( JKH Enterprises ).) “If the administrative decision involved or substantially affected a ‘fundamental vested right,’ the superior court exercises its independent judgment upon the
evidence disclosed in a limited trial de novo in which the cour t must examine the administrative record for errors of law and exercise its independent judgment upon the evidence.” ( Id . at

p. 1057 .) “Where no fundamental vested right is involved, the superior court’ s review is limited to examining the adminis trative
record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the
whole record.” ( Ibid .)
In this case , the trial court did not explicitly state which standard of review it was employing. Howeve r, r egardless of the standard of review that applied in the trial court, appellate courts apply a substantial evidence standard. ( JKH Enterprises

, supra , 142 Cal.App.4th at p. 1058 .) If the trial court exercised its independent judgment because a fundame ntal vested right was involved, we review whether substantial ev idence supports the
trial court’ s judgment. ( Ibid .) If the trial court reviewed the
administrative decision for substantial evidence because no fundamental vested right was involved, then ou r review is the
same as the trial court’s

— we review the administrative record to
determine whether substantia l evidence supports the agency’s findings. ( Ibid .) In that review, we resolve all conflicts in the
evide nce and draw all inferences in support of the agency’ s13

findings. ( Ibid .) However, we review de novo i s s ues of law related to the administrative decision, such as interpreta tion of statutes and regulations

. ( Hoitt v. Department of Rehabilitation (2012) 207 Cal.App.4 th 513, 522 .)

RELEVANT PENAL CODE SECTIONS
Under section 629.74, “[t] he Attorney General, any deputy attorney general, district attorney, or deputy district attorney, or

any peace officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or electronic communication, or evidence derived therefrom, may disclose the

contents to one of the individuals referred to in this section, to any judge or magistrate in the state, and to any investigative or
law enforcement officer

. . . to the extent t hat the disclosure is permitted pursuant to Section 629.82 and is appropriate to the proper performance of the official duties of the individual maki ng or receiving the disclosure.” However, “[n] o other disclosure, except to a grand jury, of intercepted i nformation is permitted prior to a public court hearing by any person regardless of how the person may have come into possession thereof. ” Under section 629.76, “[t] he Attorney General, any deputy attorney general, district attorney, or deputy district at torney, or any peace officer or federal law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or electronic communication, or evidence derived therefrom, may use the contents or evidence to the extent the use is appropriate to the proper performance of his or her official duties and is permitted pursuant to Section 629.82. ” Under section 629.78, “[a] ny person who has received, by any means authorized by this chapter, any information

concern ing a wire or electronic communication, or evidence14

derived therefrom, intercepted in accordance with the provisions of this chapter, may, pursuant to Section 629.82, disclose the
contents of that communication or derivative evidence while giving testimony under oath or affirmation in any criminal court proceeding or in any grand jury proceeding. ” Under section 629.82, subdivision (a), if a law enforcement officer, while intercepting wire or e lectronic communications in
an authorized m anner , intercepts wir e or electronic communications relating to crimes other than those specified in
the authorization order , but which are listed in section 629.52, subdivision (a), or any violent felony as defined in s ection 667.5

, subdivision (c), then “( 1) the contents the reof, and evidence derived therefrom, may be disclosed or used as provided in Sections 629.74 and 629.76 and (2) the contents and any evidence derived therefrom may be used under Section 629.78 when
auth orized by a judge if the judge find s

. . . that the c ontents were otherwise intercepted in accordance with the provisions of this chapter. ” Under section 629.82, subdivision (b), if a law enforcement officer, while intercepting wire or electronic communications in
an authorized m anner , intercepts wire or electronic communications relating to crimes other than those specified in subdivision (a), then “ the contents thereof, and evidence derived therefrom, may not be disclosed or used as provided in
Sections 629.74 and 629.76, except to p revent the commission of a public offense.”
DISCUSSION We must resolve two issues in this appeal

— Did Judge Fidler’s December 1, 2009 order authorize the disclosure
and use of the wiretap evidence at Arellano’s administrative15

hearing before the c ivil s ervi ce c ommission? If not, could the wiretap evidence be disclosed and used at the administrative hearing without a court order? As discussed below, we answer both questions in the negative. Judge Fidler’ s order was two

- fold. The order first allowed
relea se of the wiretap evidence to the Sheriff’s Department for use in an internal investigation

. Next , the order auth orized testimony regarding the wiretap ev idence pursuant to
section 629.78. Howeve r , section 629.78 allows for disclosure of
such evidence only while testifying in a crim inal or grand jury proceeding. Thus, n othing i n Judge Fidler’s order expressly
authorized disclosure or use of the wiretap evidence in an administrative hearing against Arellano. The County argues that the Sheriff ’s Depart ment’s application made it clear that the release of the wiretap evidence
was for use in an administrative proceeding such as a hearing
before the c ivil s ervice c ommission

. However, t he first page of
the application requested release of the evidence “for us e in an internal investigation”

— not an administrative proceeding. I n its accompanyi ng points and authorities, the d ep artment argue d
that disclosure of the evidence at an administrative hearing was not precluded by section 629.78

. But t he attached declaration again reitera ted that the intercepted calls were relevant to the department’s inter nal investigation of Arellano: “ The Los Angeles County Sheriff Department is considering an internal investigation into the actions of the deputy, and the recording(s) during this period of interceptions covered by the referenced Wiretaps is relevant to that investi gation.” The declaration also
stated that “ [ i ] n order to proceed administratively to prevent any future public offense ” by Arellano, th e dep artment needed access16

to the inte rcepted calls. The declaration further reques ted
authorization to release such evidence “ as necessary to assist in the administrative process” and “ to p revent ongoing public corruption. ” The declaration appeared to use the terms “release” and
“disclose” interchangeably, seeking release of the evidence to the Sheriff’s Departme nt as well as authorization to “release” or, in this context, disclose, the evidence during the administrative

process. Nevertheless, even if the application and declaration can be reasonably interpreted as communicating that the Sheriff’s Department inte nded to use the intercepted calls in an
inte rnal investigation and when proceed ing administratively against Arellano

, the prepared order signed by Ju dge Fidler did
not authorize disclosure or use of the wiretap evidence in an administrative proceeding. Instead, the order cited
sections 629.82 , subdivis ion (b), and 629.78

, neither of which provide s for disclosure or use of such evidence in an administrative proceeding

. In other words , although the order permitted release of the intercepted calls to the Sheriff’s Department

, it s cited statutory parameters limited disclosure of and testimony about the calls to a criminal court or grand jury proceeding pursuant to section 629.78

. Therefore, the order did
not authorize disclosure or use of the wiretap evidence in any
other kind of proceeding, i ncluding a n administrative hearing
before the c ivil s ervice c ommission , which could involve more public disclosure than an internal departmental investigation. 3

3 Under Los Angeles Civil Service Commission rule 4.11, “[a] ll meetings of the Commission shall b e open to the public

. . . except as otherwise provided by rule or law. ” However, according to rule 4.05, “[t] he Commission may meet in Executive17 According to the County, the term “release” as stated in the order actually meant “release and use.” Thus, when Judge Fidler released the wiretap evidence to the Sheriff’s Department, he
al so allowed the departm ent to subsequently use the evidence in any proceeding identified in the application or declaration

. The County argues that because Judge Fidler “further” authorized testimony regarding the evidence in a criminal court or grand jury proceeding, he must have first authorized testimony in another setting

, i.e.

, an administrative hearing. Although
section 629.76 allows law enforcement to use wiretap evidence “ to the extent the use is appropriate to the proper performance of his
or her o fficial duties and is permi tted under [ s ] ection 629.82, ” Judge Fidler’ s order plainly did not cite section 629.76

. Instead,
the order relied on section 629.78, which allows law enforcement to disclose wiretap evidence only when testifying in criminal court or before a grand jury. Thus, we read the order just as it is
written

— Judge Fidler released the wiretap evidence to the Sheriff’s Department and also allowed the department to disclose the evidence only in a criminal or grand jury proceeding. Although Judge Fidler subsequently stated he intended to allow
the evidence to be used i n an administrative proceeding as well

, the C ounty cites no authority that would allow us to consider anything other than the four corners o f the order

. Nor has the County cite d any authority holding that a judge’s intent may expand the express limited scope of an operative statute. Th us , we hold that the order did not authorize the disclosure or use of

Session to c onsider the

. . . discipline, or dismissal of public employees unless an employee or the employee’s representative requests that the employee’s matter be considered only in public. ”18

the wiretap evidence at Arellano’s adm inistrative hearing before
the c ivil s ervice c ommission. The County next contends that the order’s defects are
immaterial because the evidence could be disclosed or used at the administrative hearing even without a court order. We disagree.
Even if the state statutes relied upon by the County do not require that law enforcement obtain judicial authoriz ation prior
to disclosure or use , the County can not satisfy the conditions imposed by the cited statutes

. In interpreting a state wiretap sc heme, an appellate court may look for guidance to cases under the federal wiretap act,
which “ provides ‘ a comprehensive scheme for the regulation of wiretapping and electronic surveillance. ’ ” 4 ( People v. Otto (1992) 2 Cal.4th 1088, 1097 .) The federal wi retap act set s minimum standards for the admissibility of evidence procured through
electronic surveillance. “[ S ] tate law cannot be less pr otective of privacy than the federal [ wiretap ] [ a ] ct. ” ( Id

. at p. 1098.) The County argues that although crimes involving the cultivation or importation of marijuana are not specifically covered under section 629.52, subdivision (a)

, of the wiretap
authorization statute

, 5 the intercepted calls relating to these

4 See t itle III of the Omnibus Crime Control a nd Safe Streets Act of 1968, title 18 U nited States Code sections 251 0 to 2520.

5 Specified offenses under section 629.52, subdivision (a), include the importation, possession for sale, transportation, manufacture, or sale of heroin, cocaine , PCP, or methamphetamine, but do not include the cult ivation or importation of marijuana. Furthermore, although Arellano was intercepted during the wiretap, the County does not contend he was listed as a target subject in the wiretap application

.19

crimes may never theless be disclosed or used pursuant to
section 629.82, subdivision (b). Und er section 629.82

, subdivision (b), if a law enforcement officer, while intercepting
wire or electronic communications in an authorized m anner , intercepts wire or electronic comm unications relating to a non

specified offense

, the evidence may not be disclosed or us ed (as provided in sections 629.74 and 629.76) except to prevent the commission of a public offense. In other words , the evidence may
be disclosed or use d only if doing so would prevent the commission of a public offense. 6 A “public offense” is defined, in relevant part, as “ an act committed

. . . in violation of a law, ” which is punishable by “[ d ] eath ; [¶] [ i ] mprisonment ; [¶] fine ; [¶] [ r ] emoval from office ;

or [¶] [ d ] isqualification to hold and enjoy any office of honor, trust or profit in this state. ” (§ 15.) Thus, the cultivation or importation of marijuana would fall under this definition.
However , the Sheriff’s Department did not issue its notice of
in tent to discharge Arellano until August 2011, at least two years
after he was intercepted discussing the se offenses , and the
administrative hearing did not begin until September 2012.
Therefore

, without additional evidence demonstrating Arellano’s
continu ed involvement in these crimes, it is difficult to see how

6 The trial court found that section 629.82 does not require a court order. Conversely, the hearing officer believed that section 629.82 did require judicial authorization. We need not decide which view is correct given that the County failed to satisfy the statute’s requirements. However, we note that legislativ e action could resolve the critical issue raised by this case; whether, as a matter of course, calls captured during a lawful wiretap may be disclosed and used during a subsequent civil service commission hearing.20

disclosure or use of the wiretap evidence during the
administrative h earing could have prevented the commission of a public offense. This was a historical case, in which the intercepted calls

re vealed Arellano’s past mis conduct. By September 2012, f resh
evidence was needed to show that disclosure or use of the calls
would prevent a crime from occurring. The County highlights the
absence of evidence to make its point, arguing there was no evidence that Arellano no longer associated with “known narcotic
felons” when the administrative hearing took place. Leaping from this slim reed into thin air, the County then argues that
disclosure or use of the intercepted calls thus would have prevente d ongoing violations of obstructing a peace officer, being an accessory after the fact to a crime (the cultivation of marijuana ) and conspiring to commit a crime. We are not persuaded. Without evidence of a continued association, the County could not, an d, indeed did not, demonstrate that any ongoing offenses could be prevented

. Thus, secti on 629.82, subdivision (b), cannot be construed to justify disclosure or use of the intercepted calls at the administrative hearing. 7 The County also argues that dis closure or use was allowed pursuant to federal wiretap law. Again, we are not persuaded. The most closely analogous federal statute

, t itle 18 United States Code section 2517, subdivisions (3) and (5), allows for disclosure or use of intercepted informati on in any proceeding “held under

7 Although the parties further debate whe ther the wiretap evidence could be disclosed under section 629.74, or used under section 629.76, the discussion is unnecessary. Both statutes still require compliance with section 629.82 and, as we have already held, the County failed to do so in this cas e.21

the authority of the United States or of any State or political
subdivision thereof.” This language is far more expansive than

sec tion 629.78, which limits such proceedings to testimony in criminal court or before a grand jury. Although state law cannot be less protective of privacy than the federal wiretap act, ( People
v. Otto

, supra , 2 Cal.4th at p. 1097; see People v

. Roberts (2010) 184 Cal.App.4th 1149, 1179

– 1180), this is precisely the result the County seeks here

. At issue in Roberts was California’s more restrictive provision with respect to the timing and content of reports submitted during a wiretap. At issue here is California’s more restrictive provision with respect to the disclosure and use of the wiretap’s intercepted calls. As in Roberts , the significant difference in the scope of the privacy protection created by the California statute “indicates that [the state legislature] intended the statute not conform to federal law in this regard.” ( Id . at

p. 1180 .) Thus, relying upon federal wiretap act does not aid the County ’s position here. Nor does citation to factually distinguisha ble federal decisions

— bound not by California law but by the far broader scope of the federal wiretap act

— assist the County’s co ntentions

. (See, e.g., Forsyth v. Barr (5th Cir. 1994) 19 F.3d 1527.)
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.

JOHNSON, J.
We concur:

CHAN E Y

, Acting P. J. BENDIX, J.