People v. Gardner

Opinion

Larry A. Gardner appeals from his conviction of first degree murder. Among other arguments, he contends that it was error for the trial court to admit into evidence a confession contained in a letter which he wrote to his attorneys. For the reasons set forth below, we conclude that admission of the confession violated the attorney-client privilege protected by Evidence Code sections 950-954, and that, under applicable precedent the error must be regarded as prejudicial. Without reaching appellant’s other arguments, therefore, we reverse the conviction subject, of course, to the right of the People to seek a valid conviction at a new trial.

At about 6 p.m. on September 20, 1977, Sing Quon Lum, age 73, was found dead in his apartment at 33 California Street in Salinas, California. His body was on the bed, his head was bloody, his mouth was gagged, and his hands were bound behind his back. Two days later, on September 22, 1977, Detective Andrew Enni of the Salinas Police Department, one of the officers who assisted in the collection of evidence at the scene of the crime, went to Gardner’s apartment for investigation of alleged drug activity. While there, he noticed certain physical evidence which, he believed, corresponded to physical evidence he observed in the victim’s apartment. Two other persons, Barbara Johnson and Eugene Campbell, were in Gardner’s apartment at the time Detective Enni made these observations. The following day, September 23, which was a Friday, Detective Enni returned with a warrant, searched the premises, and arrested all three persons. Gardner and Campbell were placed in adjoining jail cells over the weekend.

On Monday morning, September 26, Detective Claude Sparks of the Salinas Police Department interviewed Campbell, and Campbell told

Respondent argues that the privilege does not apply because no lawyer-client relationship existed at the time the letter was seized. It is abundantly clear from the letter itself and from its context that the letter was intended for the office of the local public defender, and that it was written with the (quite reasonable) expectation that Gardner would be represented by that office. Gardner was an indigent criminal accused who, according to records before the trial court on the motion to suppress, had been represented by the Monterey County Public Defender at least seven times prior to his arrest in this case. The letter was addressed “To P.D.,” it concluded by requesting advice, and Gardner was in fact represented by the Monterey County Public Defender in this proceeding. In People v. Canfield (1974) 12 Cal. 3d 699 [ 117 Cal.Rptr. 81 , 527 P.2d 633 ], the privilege was held applicable to the contents of a financial eligibility form which the defendant in that case signed at the jailhouse during a preliminary interview with a legal aide representing the public defender. The court reasoned as follows: “It is clear from the circumstances under which the statement was given that it was given in confidence (see Evid. Code, § 952) and that defendant’s purpose was to retain the public defender to represent him in the criminal proceedings against him. Under sections 951 and 954 of the Evidence Code, therefore, any disclosures made by defendant in the course of the interview were privileged and could not be revealed without his consent. [U] The lawyer-client privilege is, indeed, so extensive that where a person seeks the assistance of an attorney with a view to employing him professionally, any information acquired by the attorney is privileged whether or not actual employment results. [Citation.]” (12 Cal.3d at pp. 704-705.) It is thus apparent that if the contents of the letter which Gardner wrote to the public defender had been communicated in person to a representative of the defender’s office, the communication would have been protected by the privilege. The fact that the communication was in the form of an undelivered letter requires, in our view, no different result.

Respondent argues in the alternative that Gardner waived any privilege he had with respect to his letter to the public defender by disclosing its contents to Campbell. In this connection we note that a

Respondent’s waiver argument must be rejected for two reasons. First, it has been held that “it is not the content of the communication but the relationship that must be preserved and enhanced as a societal value,” and therefore what is required to establish waiver is not simply disclosure of the contents but the fact “that certain information had been communicated to the attorney.” (Lohman v. Superior Court, supra, 81 Cal.App.3d at pp. 96-97; cf. People v. Morris (1971) 20 Cal.App.3d 659 [ 97 Cal.Rptr. 817 ] [overruled on other grounds in People v. Duran (1976) 16 Cal.3d 282 , 292 ( 127 Cal.Rptr. 618 , 545 P.2d 1322 , 90 A.L.R.3d 1 )]; People v. Garaux (1973) 34 Cal.App.3d 611 [ 110 Cal.Rptr. 119 ].) The only evidence of disclosure by Gardner was Detective Sparks’ testimony that Campbell informed him that Gardner had “written a statement which would clear Campbell and Barbara Johnson.... ” There is absolutely no evidence to indicate that Gardner disclosed to Campbell the fact of his communication to his prospective attorney. But even if there were such evidence, respondent’s waiver argument would have to be rejected because Gardner’s disclosure (again, according to the testimony of Detective Sparks) was limited to the fact that he had written a statement exonerating Campbell and Johnson, and did not include his own confession of guilt. Obviously there might be grounds upon which one person could exonerate another without himself being guilty of the crime. Thus, even if Gardner’s statement to Campbell constituted waiver of Gardner’s privilege with respect to the statement of exoneration, the waiver would not extend to the confession. We conclude that Gardner’s written confession was protected by the

There remains for consideration the consequences of that error. Normally, as respondent concedes, the erroneous admission of a confession is considered prejudicial per se within the meaning of article VI, section 13 of the state Constitution. (See People v. Schader (1965) 62 Cal.2d 716 , 728-729 [ 44 Cal.Rptr. 193 , 401 P.2d 665 ]; People v. McClary (1977) 20 Cal.3d 218 , 230 [ 142 Cal.Rptr. 163 , 571 P.2d 620 ].) Respondent argues, however, that this general rule applies only where a constitutional right has been violated, and that the prejudicial effect of violating the lawyer-client privilege should be tested by the lesser standard of People v. Watson (1956) 46 Cal.2d 818 , 836 [ 299 P.2d 243 ], i.e., whether it is reasonably probable that the jury would have reached a verdict more favorable to the defendant had his statement not been received in evidence.

Gardner argues vigorously that the Sixth Amendment right to counsel is implicated whenever a criminal defendant’s confidential relationship with his attorney is violated, and points to Barber v. Municipal Court (1979) 24 Cal.3d 742 , 752 [ 157 Cal.Rptr. 658 , 598 P.2d 818 ], for the proposition that “[t]he right to counsel...embodies the right to private consultation with counsel.” (See also Fisher v. United States (1976) 425 U.S. 391 , 403 [ 48 L.Ed.2d 39 , 51-52, 96 S.Ct. 1569 ]; United States v. Peters (S.D.Fla. 1979) 468 F.Supp. 364 , 368; State v. Kociolek (1957) 23 N.J. 400 [ 129 A.2d 417 ]; People v. Beige (1975) 83 Misc.2d 186 [ 372 N.Y.S.2d 798 ], affd. 50 App.Div.2d 1088 [ 376 N.Y.S.2d 771 ], affd. 41 N.Y.2d 60 [ 390 N.Y.S.2d 867 , 359 N.E. 2d 377 ].) Respondent responds with equal vigor that the Sixth Amendment right to counsel applies only “‘at or after the time that adversary judicial proceedings have been initiated’” (People v. Duck Wong (1976) 18 Cal.3d 178 , 187 [ 133 Cal.Rptr. 511 , 555 P.2d 297 ]) and argues that application of the Barber principle to Gardner would involve “an unprecedented extension of the Sixth Amendment guarantee.” We find it unnecessary to resolve that argument, however. Assuming arguendo that the lawyer-client privilege constitutes the sole ground for error in admitting Gardner’s letter, and accepting that Watson supplies the standard generally applicable for assessing the prejudicial effect of evidence admitted in violation of that privilege (see People v. Canfield, supra, 12 Cal.3d 699 , 707), the narrower question presented here is whether that test or the per se rule ought to be applied where it is a

As a last effort to save the conviction, respondent invokes People v. Jacobson (1965) 63 Cal.2d 319 [ 46 Cal.Rptr. 515 , 405 P.2d 555 ], in which the defendant made approximately 10 separate admissions or confessions, of which the last 2, made at the police station during and after booking, were objectionable because of the absence of Miranda warnings. Noting that no undue emphasis was placed on any of the confessions at defendant’s trial, that each person who had witnessed defendant make an incriminating statement testified as to what he had heard, that no one confession contained details significantly different from the others, and that the sequence of confessions precluded the possibility that the legally obtained confessions were “induced” by those subsequently improperly obtained, the court concluded that Jacobson’s was a “rare case” in which it could be said that there was no reasonable possibility that the evidence complained of might have contributed to the conviction. (63 Cal.2d at pp. 330-331.) This exception was also applied in People v. Cotter (1965) 63 Cal.2d 386 [ 46 Cal.Rptr. 622 , 405 P.2d 862 ], in which the defendant gave seven statements, four of which were admissible and three of which were not.

Respondent contends the Jacobson-Cotter exception to the per se rule is applicable on the basis of the following facts. While awaiting trial, Gardner was moved from the old Monterey jail to a new facility. His cellmate at the new location, David Amaya, testified at trial that Gardner admitted he had indeed killed the victim, with the aid of Eugene Campbell and another person, and that he had described in some detail how the deed was done. Respondent suggests that the key to the Jacobson-Cotter exception is not the number of confessions, but whether the improperly obtained statement was “cumulative,” and whether the legally obtained confession was induced by the improperly obtained confession. Urging that in the instant case the answer to the first question is “yes” and to the second “no,” respondent argues that the exception should be applied.

As Gardner points out, however, the erroneously admitted confession was in the defendant’s own handwriting, and admitted to be his, where

Judgment reversed.

Racanelli, P. J., and Elkington, J., concurred.