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.

 B278519

 (Los Angeles County

 Super. Ct. No. BS156018)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, 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 intercepted 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), was associating with known narcotic felons, using

his law enforcement status to obtain inside information from the 

department to provide to individuals involved in illegal narcotic 

activity, and was himself involved in cultivating marijuana. As 

the Sheriff’s Department expanded its criminal investigation to 

include Arellano, it sought a court order releasing the wiretap 

recordings, and transcripts from those recordings, to the Sheriff’s 

Department for use against Arellano. The court’s order 

permitted the district 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 civil service 

commission hearing that followed, the Sheriff’s Department 

attempted to use the intercepted calls during the administrative 

proceeding. The hearing officer granted Arellano’s motion to 

suppress the calls and ultimately recommended that the Arellano 

only receive a five day suspension without pay. The civil service 

commission adopted the recommendation. The County of Los 

Angeles then filed a petition for writ of administrative 

mandamus in superior court. The superior court denied the 

petition. We affirm

 

1 All further statutory references are to the Penal Code 

unless otherwise indicated.
3

BACKGROUND

I. The initial investigation

Arellano was hired by the Sheriff’s Department in 1989.

Arellano later joined the Sheriff’s Department Narcotics Unit and 

was transferred to the Palmdale station as the filing detective on 

loan. As part of this assignment, Arellano would check to see if

deputies had made any narcotics arrests, review the suspect’s 

booking packets and files, and determine whether the suspect 

might serve as a potential informant. Arellano would also 

determine whether the suspect’s case should be sent to the 

district attorney’s office for filing of criminal charges.

On February 23, 2009, the Sheriff’s Department Narcotics 

Strike Team (NST) conducted a controlled purchase of cocaine 

near the El Dorado restaurant in Palmdale under the belief that 

the restaurant’s owners were involved in illegal conduct. 

Arellano, assigned to NST at the time, was not aware of this

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 Monreal. Detective Riggs also said that Arellano had 

thrown a party at the El Dorado to celebrate his transfer from 

patrol to narcotics, despite departmental policies forbidding 

fraternization with criminals. Although Arellano was not in fact 

related to Omar Monreal 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 high intensity drug trafficking area 

(HIDTA) task force began investigating Arellano to determine if 
4

he was engaged in any criminal activity. Detective Mark 

Montoya worked as the lead criminal investigator on the case. In 

April 2009, HIDTA obtained several court-ordered state wiretaps, 

issued by Judge Larry P. Fidler.

2 Among the intercepted calls 

were 26 calls between Omar Monreal and others discussing

illegal narcotics activity. Two of the calls were between Omar 

Monreal and a caller identified as UM845 and UM9068. After 

conducting voice comparisons of UM845, UM9068, and Arellano, 

five Spanish linguists 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 

cloned plants he had purchased infested the other marijuana 

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 certain room 

“ready,” the conversation ended with Arellano telling Omar 

several times “[d]on’t burn me man!” and that he would 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, whatever you need, let me 

know . . . on this thing . . . I could only tell you what I hear.” 

Arellano also told Omar “[whatever you need] [or] you guys or 

your mom, your dad, anybody, your brothers, . . . [call me].” 

Arellano also told Omar, “they try to keep a lot of things hush

hush because . . . You 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 Omar 

and Eric Monreal. Omar and Eric discussed the purported traffic

accident at the intersection of 40th and Avenue L. Omar told

Eric that law enforcement were called to the accident and said, 

“Yeah, they went over there and I called Arellano and he called 

them so they could chill on ’em.”

On June 16, 2009, agents intercepted a call between 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 another call between Omar and Felipe Rios. 

Omar 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 evict tenants from the home before the law enforcement 

raid. Omar 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 investigation into Arellano

On June 25, 2009, the Sheriff’s Department Internal 

Criminal Investigations Bureau (ICIB) opened a criminal 

investigation into Arellano. On November 30, 2009, while the 

ICIB investigation proceeded, Detective Montoya and Deputy 

District Attorney Jay Grobeson filed an application to Judge 

Fidler for an order releasing wiretap recordings, and transcripts 

of those recordings, to the Sheriff’s Department for use against 

Arellano. The application sought “authorization to release 

recordings and other materials (line sheets) for specific 

calls . . . to the Los Angeles County Sheriff Department for use in 

an internal investigation.” The application further stated that 

the “evidence derived therefrom [the intercepted recordings] are 

relevant to an internal investigation by the Los Angeles County 

Sheriff Department.” 

Detective Montoya’s declaration in support of the 

application reiterated that the recordings were relevant to the 

Sheriff’s Department internal 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 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 intercepted calls.”

On December 1, 2009, Los Angeles Superior Court Judge 

Larry P. Fidler signed an order authorizing the disclosure of

those records pursuant to the application. The order provided, in 

relevant part: “The People have made application to this court 
7

for an order pursuant to Penal Code Section 629.82. This 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. Recordings of intercepted calls; . . . [and] [¶] 3. Evidence 

derived from these Wiretaps . . . . [¶] The Court further 

authorizes pursuant to Penal Code § 629.82(b), testimony of the 

above items pursuant to Penal Code § 629.78.”

On July 6, 2010, Drug Enforcement Administration Special 

Agent Virginia Waters and Detective Montoya concluded their 

criminal investigation into Arellano. 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 California 

wiretap 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 

departmental 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, the Sheriff’s 

Department also determined that Arellano performed favors for 

Eric Monreal and other individuals involved in illegal narcotics

activity. In August 2008, Eric Monreal was arrested for a felony 

narcotics charge and placed on a probation hold, meaning he was 

not to be released. Without obtaining supervisor approval and 

despite the valid probation hold, Arellano released Eric from jail. 

It was shortly after Eric’s release that Arellano held a party at 

the El Dorado to celebrate his transfer to the narcotics bureau. 
8

The Sheriff’s Department also determined that 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, Arellano 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 Department to apprehend Angulo. 

The Sheriff’s Department also found that Arellano engaged 

in unauthorized use of the justice data interface 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 of 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 finding 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. Arellano 
9

was discharged from his position as Deputy Sheriff effective 

August 29, 2011.

III. The administrative hearing

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 motion to 

suppress the wiretapped calls. The Sheriff’s Department opposed 

the motion. The hearing officer granted the motion after finding 

that Judge Fidler’s December 1, 2009 order permitting the 

wiretap evidence to be released did not expressly provide that the 

evidence could be used for administrative purposes. Instead, the 

hearing officer interpreted 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 Department filed an 

ex parte application seeking an order clarifying or amending 

Judge Fidler’s December 1, 2009 order. During the hearing, 

Judge Fidler stated that although the order as prepared by the 

district attorney could be considered ambiguous, “the application 

clearly noted that they intended to use the results in an internal 

affairs hearing against [Arellano].” Judge Fidler 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 further noted, “I would say this is a pretty simply, 

cut and dry request. I guess I can understand where the hearing 

officer, perhaps, had a problem. But 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’s 
10

read in its entirety—and my order says I have read and 

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 complying with such a request. The record 

does not reflect any subsequent request to Judge Fidler to amend 

the order, however. 

The 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 clear,” 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 determined she had 

no authority to admit 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 administrative proceeding, stating she was 
11

“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 credentials 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 civil service commission 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 mandamus in superior 

court. On July 14, 2016, the superior court denied the petition. 

The superior court found that Judge Fidler’s order only 

authorized the Sheriff’s Department to use the intercepted calls 

in an internal investigation and not in an administrative law 

proceeding as the latter would involve a more public disclosure. 

The superior court further found that although the California 

Wiretap Act allows for disclosure of the wiretap communications 

without a court order, the wiretap evidence here did not meet the 

standard for disclosure to prevent a public offense under

section 629.82, subdivision (b), because there was no evidence of 

ongoing misconduct or the imminence of Arellano’s commission of 

a public offense. 
12

STANDARD OF REVIEW

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 Relations (2006) 142 Cal.App.4th 

1046 (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 court 

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 administrative 

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. However, regardless 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 fundamental vested right was 

involved, we review whether substantial evidence 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 our review is the 

same as the trial court’s—we review the administrative record to 

determine whether substantial evidence supports the agency’s

findings. (Ibid.) In that review, we resolve all conflicts in the 

evidence and draw all inferences in support of the agency’s 
13

findings. (Ibid.) However, we review de novo issues of law 

related to the administrative decision, such as interpretation of 

statutes and regulations. (Hoitt v. Department of Rehabilitation 

(2012) 207 Cal.App.4th 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 that the disclosure is 

permitted pursuant to Section 629.82 and is appropriate to the 

proper performance of the official duties of the individual making 

or receiving the disclosure.” However, “[n]o other disclosure, 

except to a grand jury, of intercepted information 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 attorney, 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 

concerning a wire or electronic communication, or evidence 
14

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 electronic communications in 

an authorized manner, intercepts wire 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 section 667.5, 

subdivision (c), then “(1) the contents thereof, 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 

authorized by a judge if the judge finds . . . that the contents 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 manner, 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 prevent 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 administrative 
15

hearing before the civil service commission? 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

release of the wiretap evidence to the Sheriff’s Department for 

use in an internal investigation. Next, the order authorized 

testimony regarding the wiretap evidence pursuant to

section 629.78. However, section 629.78 allows for disclosure of 

such evidence only while testifying in a criminal or grand jury 

proceeding. Thus, nothing in 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 Department’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 civil service commission. However, the first page of 

the application requested release of the evidence “for use in an 

internal investigation”—not an administrative proceeding. In its 

accompanying points and authorities, the department argued

that disclosure of the evidence at an administrative hearing was 

not precluded by section 629.78. But the attached declaration 

again reiterated that the intercepted calls were relevant to the 

department’s internal 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 investigation.” The declaration also

stated that “[i]n order to proceed administratively to prevent any 

future public offense” by Arellano, the department needed access 
16

to the intercepted calls. The declaration further requested 

authorization to release such evidence “as necessary to assist in 

the administrative process” and “to prevent ongoing public 

corruption.” 

The declaration appeared to use the terms “release” and 

“disclose” interchangeably, seeking release of the evidence to the 

Sheriff’s Department 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 intended to use the intercepted calls in an 

internal investigation and when proceeding administratively

against Arellano, the prepared order signed by Judge Fidler did 

not authorize disclosure or use of the wiretap evidence in an 

administrative proceeding. Instead, the order cited 

sections 629.82, subdivision (b), and 629.78, neither of which 

provides 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, its 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, including an administrative hearing

before the civil service commission, 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 be open to the 

public . . . except as otherwise provided by rule or law.” However, 

according to rule 4.05, “[t]he Commission may meet in Executive 
17

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 

also allowed the department 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 official duties and is permitted 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 in an administrative proceeding as well, 

the County cites no authority that would allow us to consider 

anything other than the four corners of the order. Nor has the 

County cited any authority holding that a judge’s intent may 

expand the express limited scope of an operative statute. Thus, 

we hold that the order did not authorize the disclosure or use of 

 

Session to consider 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 administrative hearing before 

the civil service commission. 

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 authorization prior 

to disclosure or use, the County cannot satisfy the conditions

imposed by the cited statutes. 

In interpreting a state wiretap scheme, 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 wiretap act sets minimum 

standards for the admissibility of evidence procured through 

electronic surveillance. “[S]tate law cannot be less protective 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 title III of the Omnibus Crime Control and Safe 

Streets Act of 1968, title 18 United States Code sections 2510 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 cultivation 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 nevertheless be disclosed or used pursuant to

section 629.82, subdivision (b). Under section 629.82, 

subdivision (b), if a law enforcement officer, while intercepting 

wire or electronic communications in an authorized manner, 

intercepts wire or electronic communications relating to a nonspecified offense, the evidence may not be disclosed or used (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 used 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 

intent to discharge Arellano until August 2011, at least two years 

after he was intercepted discussing these offenses, and the

administrative hearing did not begin until September 2012. 

Therefore, without additional evidence demonstrating Arellano’s 

continued 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 

legislative 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 hearing could have prevented the commission of a 

public offense. 

This was a historical case, in which the intercepted calls 

revealed Arellano’s past misconduct. By September 2012, fresh 

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 

prevented 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, and, indeed did not, demonstrate that any 

ongoing offenses could be prevented. Thus, section 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 disclosure or use was allowed 

pursuant to federal wiretap law. Again, we are not persuaded. 

The most closely analogous federal statute, title 18 United States 

Code section 2517, subdivisions (3) and (5), allows for disclosure 

or use of intercepted information in any proceeding “held under 

 

7 Although the parties further debate whether 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 case. 
21

the authority of the United States or of any State or political 

subdivision thereof.” This language is far more expansive than 

section 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 

distinguishable federal decisions—bound not by California law 

but by the far broader scope of the federal wiretap act—assist the 

County’s contentions. (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:

CHANEY, Acting P. J. BENDIX, J.