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TO BE PUBLISHED IN THE OFFICIAL REPORTS
 

OFFICE OF THE ATTORNEY GENERAL
 

State of California
 

DANIEL E. LUNGREN
 

Attorney General
 

OPINION : 

: No. 96-304 

of : 

: September 16, 1996 

DANIEL E. LUNGREN : 

Attorney General : 

: 

CLAYTON P. ROCHE : 

Deputy Attorney General : 

: 

THE HONORABLE JOHN W. WITT, SAN DIEGO CITY PROSECUTOR, has 

requested an opinion on the following question: 

Does the designation "district attorney" as used in Penal Code section 633 with respect 

to the overhearing or recording of conversations include city attorneys who prosecute misdemeanor 

cases? 

CONCLUSION 

The designation "district attorney" as used in Penal Code section 633 with respect to 

the overhearing or recording of conversations does not include city attorneys who prosecute 

misdemeanor cases; however, such attorneys when prosecuting misdemeanor charges have the same 

powers that Penal Code section 633 has granted to district attorneys to overhear or record 

conversations. 

ANALYSIS 

The Legislature has enacted a comprehensive statutory scheme (Pen. Code, ''

630-637.6)1 "to protect the right of privacy of the people of this state" (' 630). Sections 631-632.7 

1 All references hereafter to the Penal Code are by section number only. 

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relate specifically to unlawful wiretapping and other forms of illegal electronic eavesdropping, with 

section 633 providing exceptions thereto for certain designated law enforcement officers and 

prosecuting attorneys. Section 633 states: 

"Nothing in Section 631, 632, 632.5, 632.6, or 632.7 prohibits the Attorney 

General, any district attorney, or any assistant, deputy, or investigator of the Attorney 

General or any district attorney, any officer of the California Highway Patrol, any chief 

of police, assistant chief of police, or police officer of a city or city and county, any 

sheriff, undersheriff, or deputy sheriff regularly employed and paid in that capacity by a 

county, or any person acting pursuant to the direction of one of these law enforcement 

officers acting within the scope of his or her authority, from overhearing or recording 

any communication that they could lawfully overhear or record prior to the effective 

date of this chapter. 

"Nothing in Section 631, 632, 632.5, 632.6 or 632.7 renders inadmissible any 

evidence obtained by the above-named persons by means of overhearing or recording 

any communication that they could lawfully overhear or record prior to the effective 

date of this chapter."2 

We are asked whether the designation "district attorney" as used in section 633 includes city attorneys 

who prosecute misdemeanor cases. We conclude that although section 633 cannot be so interpreted, 

under a statute in a different code, Government Code section 41803.5, a city attorney prosecuting 

misdemeanor charges has the same powers that section 633 grants to district attorneys. 

A city attorney's primary duties are to act as the legal advisor to the city and to bring 

and defend civil actions on behalf of the city when instructed to do so by the city council. (See Gov. 

Code, '' 41801-41803.) Additionally, a city attorney may prosecute misdemeanor criminal cases 

which arise within the city under a variety of circumstances. For example, the violation of a city 

ordinance may constitute a misdemeanor which the city attorney may be required to prosecute on 

behalf of the city. (See 65 Ops.Cal.Atty.Gen. 330, 332 (1982); 20 Ops.Cal.Atty. Gen. 234, 236 

(1952)). Also, although a district attorney generally prosecutes state misdemeanors wherever 

committed within the county (Gov. Code, ' 26500), a city attorney may prosecute state misdemeanors 

committed in the city if the district attorney consents. (Gov. Code, ' 41803.5.) In a charter city, the 

charter may designate the city attorney as the "city prosecutor," having the primary duty to prosecute all 

state misdemeanors committed within the city. (79 Ops.Cal.Atty. Gen. 46, 47-48 (1996).) 

Accordingly, a city attorney, particularly in a charter city which has a designated city 

prosecutor, may have extensive prosecutorial duties similar to those of a district attorney. The need to 

obtain information in aid of misdemeanor prosecutions would be the same for a city attorney as for a 

district attorney. Yet, section 633 fails to expressly exclude city attorneys from the prohibitions of 

2 "The effective date of this chapter" was November 8, 1967. (Stats. 1967, p. A-3; People v. Carbonie (1975) 48 

Cal.App.3d 679, 684.) 

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sections 631-632.7. The designation "district attorney" does not per se include city attorneys who 

prosecute misdemeanor cases. (See 55 Ops.Cal.Atty.Gen. 151 (1972).) 

Section 633, however, does not stand alone. Rather, its provisions must be read in 

light of Government Code section 41803.5, subdivision (b), which states: 

"In any case in which the district attorney is granted any powers or access to 

information with regard to the prosecution of misdemeanors, this grant of powers or 

access to information shall be deemed to apply to any other officer charged with the 

duty of prosecuting misdemeanor charges in the state, as authorized by law." 

Under the terms of Government Code section 41803.5, subdivision (b), an "officer charged with the 

duty of prosecuting misdemeanor charges in the state, as authorized by law" is "deemed" to have "any 

powers or access to information with regard to the prosecution of misdemeanors" that are granted to a 

district attorney. 

Does section 633 grant a district attorney "any powers or access to information with 

regard to the prosecution of misdemeanors"? Obviously it does. By exempting a district attorney 

from the prohibition against overhearing and recording communications, it acts as a grant of authority. 

Those powers and access are thus "deemed" to apply to any city attorney "charged with the duty of 

prosecuting misdemeanor charges in the state, as authorized by law." (Gov. Code, ' 41803.5, subd. 

(b).) 

Section 633 itself does not apply to city attorneys. However, Government Code 

section 41803.5 does apply and has the effect of granting to city attorneys the same powers that section 

633 grants to district attorneys. While the result would be the same by stating that the term "district 

attorney" in section 633, in effect, may include city attorneys, we are not so construing herein the 

language of section 633. Rather, we are interpreting the provisions of Government Code section 

41803.5 to include the grants of powers contained in section 633 for district attorneys. 

We believe that the terms of Government Code section 41803.5, subdivision (b), are 

clear and unambiguous. "Where the words of the statute are clear, we may not add to or alter them to 

accomplish a purpose that does not appear on the face of the statute or from its legislative history." 

(Burden v. Snowden (1992) 2 Cal.4th 556, 562; see also DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 

593, 601; Rojo v. Klinger (1990) 52 Cal.3d 65, 73; Solberg v. Superior Court (1977) 19 Cal.3d 182, 

198.) 

Here, the legislative history of subdivision (b) of section 41803.4 of the Government 

Code, enacted in 1994 (Stats. 1994, First Ex. Sess., ch. 7, ' 1), fully supports our "plain reading" of the 

statute. The report of the Senate Committee on the Judiciary for its June 21, 1994, hearing states with 

respect to the proposed legislation: 

"1) Need for the bill 

"According to the author: 

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"Chartered cities like Los Angeles, San Diego, Pasadena, and Santa Monica, 

that have their own prosecutors, are often left out of state legislation that gives District 

Attorneys certain critical informational access or prosecutorial jurisdiction to handle 

misdemeanors. The efforts of city prosecutors to follow the spirit and intent of a law is 

often thwarted by this obvious legal loophole. 

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

"3) Consistency 

"The author asserts ABX1 81 ensures consistency in future legislation by 

providing a grant of powers and access of information in one section rather than a 

section by section language change. 

"4) Application 

"This bill will apply to City Attorneys who have been granted the authority to 

prosecute misdemeanors as well as the Attorney General's Office when it prosecutes a 

case from which the DA had to [recuse] itself."3 

Subdivision (b) of section 41803.5 of the Government Code was thus enacted to cover city attorneys 

prosecuting misdemeanors for both charter and general law cities. It was intended to give them the 

same powers and informational access as district attorneys without the necessity of changing each 

statutory grant of authority--such as contained in section 633. 

Finally, statutes are to "be given a reasonable and common sense interpretation 

consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in 

nature, which, upon application, results in wise policy rather than mischief or absurdity." (People Ex 

rel. Deukmejian v. Che, Inc. (1983) 150 Cal.App.3d 123, 132.) It would be unreasonable to construe 

Government Code section 41803.5, subdivision (b), as not incorporating the powers contained in 

section 633. A city attorney who prosecutes misdemeanors is in as much need of information as a 

district attorney when the latter is prosecuting misdemeanors. 

In answer to the question presented, therefore, we conclude that the designation 

"district attorney" as used in section 633 does not include city attorneys who prosecute misdemeanor 

cases; however, such attorneys when prosecuting misdemeanor charges have the same powers that 

section 633 grants to district attorneys to overhear or record conversations. 

* * * * * 

3 "`Statements in legislative committee reports concerning the statutory purposes which are in accordance with a 

reasonable interpretation of the statute will be followed by the courts.'" (O'Brien v. Dudenhoeffer (1993) 16 Cal.App.4th 327, 

334.) 

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