Barber v. Municipal Court

• Decision Date: 10 August 1979
• Citation: 24 Cal.3d 742,157 Cal.Rptr. 658
• Court: California Supreme Court
• Parties: , 598 P.2d 818 Richard BARBER et al., Petitioners, v. The MUNICIPAL COURT FOR the SAN LUIS OBISPO COUNTY JUDICIAL DISTRICT OF SAN LUIS OBISPO COUNTY, Respondent; The PEOPLE, Real Party in Interest. L.A. 30898.

Page 658

157 Cal.Rptr. 658

24 Cal.3d 742, 598 P.2d 818

Richard BARBER et al., Petitioners, v. The MUNICIPAL COURT FOR the SAN LUIS OBISPO COUNTY JUDICIAL DISTRICT OF SAN LUIS OBISPO COUNTY, Respondent The PEOPLE, Real Party in Interest.

L.A. 30898.

Supreme Court of California, In Bank.

Aug. 10, 1979.

Richard A. Frishman, Santa Barbara, for petitioners.

Fred Okrand, Los Angeles, and John M. Sink, Santa Barbara, as amici curiae on behalf of petitioners.

No appearance for respondent.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Frederick R. Millar, Jr., William R. Weisman, Deputy Attys. Gen., Robert N. Tait, Dist. Atty., and Gerald T. Shea, Deputy Dist. Atty., for real party in interest.

BIRD, Chief Justice.

This court must decide what is the proper remedy for an accused when his constitutional right to counsel has been denied by the actions of an undercover police officer who poses as a co-defendant and attends the confidential attorney-client conferences of the accused.

I

On August 7, 1977, approximately 50 people, including all of the petitioners, participated in a "sit-in" near the site of the Pacific Gas and Electric Company's (hereafter, P.G. & E.) Diablo Canyon nuclear facility to demonstrate their opposition to the use of nuclear power to generate energy. The petitioners were arrested and each was charged with two counts of trespassing. (Pen.Code, §§ 602, subd. (k) and 602, subd. (n).) All of the petitioners, except U'ren and Rosenburg, were also charged with one count of unlawful assembly. (Pen.Code, § 409.)

On October 4, 1977, before the date set for trial of these cases, petitioners learned that one of the co-defendants was an undercover police officer. They moved to dismiss on the grounds that presence of the agent at confidential attorney-client meetings had deprived them of their rights to the effective assistance of counsel and due process of law.

At the hearing on the motion the following testimony was received:

Several weeks prior to the demonstration, advertisements were placed in local newspapers inviting the public to attend meetings at which opposition to the Diablo Canyon nuclear facility and plans for the demonstration were to be discussed. The meetings were sponsored by a national organization, the Abalone Alliance, and a local group, People Generating Energy, both opposed to the use of nuclear power to generate energy. ¹

Two officers, Detective C.D. Smith of the Santa Barbara County Sheriff's Department and reserve Deputy Sheriff James Lee of the San Luis Obispo County Sheriff's Department, were assigned by their respective employers to attend the meetings in an undercover capacity in order to learn more about the group, the plans for the demonstration, and to ascertain whether there would be any violence at the demonstration. ²

Both officers became intimately involved with the group and attended numerous meetings at which plans for the demonstration were discussed. At all of these meetings it was strongly emphasized that the group was committed to nonviolence and at none of these meetings was there any indication that the demonstration would be anything other than peaceful and nonviolent. The two officers also attended an all-day "nonviolent training" session, attendance at which was required for those who would actually participate in the sit-in. At this meeting the participants engaged in various role-playing sessions designed to teach the participants how to react nonviolently to stress situations which might be encountered with police officers. ³

Prior to the demonstration, representatives of the group asked to meet with members of the San Luis Obispo County Sheriff's Department and representatives of P.G. & E. Two meetings were held at which the representatives of the group told the sheriff's department and P.G. & E. officials of the plans for the demonstration, including the time it was to be held, the route to be taken and the number of people to be involved. ⁴ They also stressed the group's commitment to nonviolent demonstration.

On August 3, 1977, at the request of the county district attorney's office, Judge Conklin, Presiding Judge for the Municipal Court of the San Luis Obispo Judicial District, met in the district attorney's office with several deputy district attorneys and sheriff's officers. At this meeting the planned demonstration was discussed. Judge Conklin was informed that there would be violations of certain provisions of the Penal Code. Decisions were made to arraign the arrestees on the same day of the arrests in the county jail auditorium and to release all of them without bail whether or not they signed O.R. release forms.

On August 7th, the demonstration occurred as planned. About 50 people, including petitioners and Officers Lee and Smith, accompanied by approximately 75 to 100 news media people, crossed over two fences and entered an access road maintained by P.G. & E. ⁵ The group proceeded on the access road to a point about one-half mile from the main entrance and six and one-half miles from the power plant. After warnings to disperse were given, the demonstrators were arrested. ⁶ The arrestees were transported to the county jail, where petitioners and Officer Lee were booked and charged. ⁷

Attorneys Haynes and Stone, having been asked to represent the group, arrived at the jail to consult with the arrestees, including Officer Lee. Officer Lee was present at this confidential attorney-client conference and testified that he was sure defense strategy was discussed but was not paying close attention.

Judge Conklin arrived at the jail at 6 p. m. for the arraignments. However, the proceeding did not begin until 8:30 p. m. While he was waiting to begin, he had numerous discussions about the cases with members of the sheriff's department and the district attorney's office. ⁸ During some of the discussions, defense attorneys were present; during others, they were not. Judge Conklin learned that evening that some of those arrested were undercover police officers. Defense counsel were not present when he was told this information and he did not inform them that some of their clients might be undercover officers.

Detective Doug Mansfield, Officer Lee's immediate supervisor, testified that he informed Deputy District Attorney Shea the day after the demonstration that defendant Lee was a police officer. Shea did not inform defense counsel.

Officer Lee continued to pose as a co-defendant with petitioners and as a client of the firm of Haynes and Olpin. As such, he attended numerous confidential attorney-client conferences, all of which "went into detail" about various aspects of the cases, including defense strategy. Lee testified he participated in discussions "about the defense in general" but did not recall discussing his "personal defense."

On one occasion attorney Stone asked for volunteers to accompany her to inspect the site of the demonstration. Lee was one of two defendants who volunteered and thereby became involved in the strategy discussion occurring at the scene. On another occasion, defense counsel asked that one of the group draw a map of that area. Lee again volunteered to do so. He prepared a detailed map of the fences and gates on the site, but failed to show the presence of an opened gate at a key location. Officer Lee testified that he had not intentionally omitted the gate and did not intend to mislead the petitioners. ⁹ Lee admitted, however, that prior to drawing the map, he had inspected the site with his superiors.

Attorney Stone testified that she inspected the site after Lee had given her the map but failed to notice the presence of the gate. She testified that the inspection had consisted of being driven through the site of the demonstration by P.G. & E. officials. She testified that although P.G. & E. had later furnished defense attorneys with maps of the area, these were geographical maps and did not show any fences or gates. She gave Lee's map to the present attorney in the case when he substituted as defense counsel.

From the time of the arrest on August 7th to October 4th, Lee reported to Detective Doug Mansfield or Captain Wood. Most of the information that Lee communicated to his superiors was communicated orally, either by telephone or in person. Lee filed only one written report during that period. Lee's superiors testified that, although they could not remember what information Lee gave them, they were sure he gave them no information about defense strategy. Lee stated that he informed his superiors that the defense was to become more "political." All three officers testified that they did not discuss Lee's reports with any members of the district attorney's office.

The sheriff's department justification for maintaining Lee in his undercover assignment after the arrests was to gain information about possible infiltration of the group by terrorists or to learn of plans for future violent demonstrations by the group. The officers testified that, although the group had informed them that they planned another demonstration sometime in January 1978, there was no indication of any terrorist infiltration or advocacy of violence by any member of the group.

At one point Officer Lee decided he would enter a plea of nolo contendere on October 4th and remove himself from the court proceedings. He mentioned these plans on October 1st to some of the defendants but did not discuss them with any of the attorneys. Shortly before October 4th, however, the group decided to substitute new counsel and pursue a more "political" defense. Lee then decided not to enter the plea because, he claimed, he was not sure of the "legal ramifications" of entering a plea while represented by the new attorneys. He admitted that he had no intention of discussing these "legal ramifications" with new counsel; he intended instead to talk to Detective Mansfield.

Sometime during October 4...