Gonzales v. Municipal Court

• Decision Date: 14 February 1977
• Citation: 136 Cal.Rptr. 475,67 Cal.App.3d 111
• Parties: Gilbert V. GONZALES, Petitioner and Respondent, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Respondent and Appellant; The PEOPLE, Real Party in Interest. Civ. 48837.
• Court: California Court of Appeals Court of Appeals

Page 475

136 Cal.Rptr. 475

67 Cal.App.3d 111

Gilbert V. GONZALES, Petitioner and Respondent, v. MUNICIPAL COURT OF the LOS ANGELES JUDICIAL DISTRICT, Respondent and Appellant The PEOPLE, Real Party in Interest.

Civ. 48837.

Court of Appeal, Second District, Division 1, California.

Feb. 14, 1977.

Burt Pines, City Atty., Ward G. McConnell, Chief Appellate Division, and James M. Hodges, Deputy City Atty., for real party in interest and appellant.

Miguel F. Garcia, Percy Duran, David Arredondo, and Tom Stanley, Los Angeles, for petitioner and respondent.

LILLIE, Acting Presiding Justice.

In a misdemeanor prosecution for assault in violation of section 240, Penal Code and resisting arrest in violation of section 148, Penal Code (People v. Gilbert Valenzuela Gonzales, No. 31--498576, Municipal Court of Los Angeles Judicial District), defendant's discovery motion ¹ was granted. ² Following a second hearing on February 4, 1975, at which the arresting officer (Curiel) asserted the attorney-client privilege, and the court sustained the claim of privilege, it modified the order of January 16, 1975, compelling disclosure to exclude the statements of the arresting officer/victim regarding the incident to investigators from the Internal Affairs Division (IAD) of the police department. ³ No sanctions were imposed on the prosecution. Thereafter defendant sought and the superior court granted writ of mandate ordering the municipal court to consider imposition of sanctions on the prosecution based on the exclusion of the statements of complaining witness to IAD. The People appeal from the judgment.

Following his arrest Gilbert Gonzales complained to IAD that Officer Curiel, the arresting officer, had used excessive force against him and his 'common law wife.' According to the undisputed testimony of Sergeant Stark of IAD (given at the hearing in municipal court on the modification of discovery order), the filing of such a complaint results in an investigation the primary purpose of which is to gather evidence for use by the city attorney in defense of a possible civil action against the police or the city arising therefrom, ⁴ the secondary purpose, to discover if there exist grounds for discipline of the officer. ⁵ The court found these facts to be true; and further found that the city attorney acts as attorney for defense of civil actions against police arising out of their employment, that Officer Curiel was led to believe his statements to IAD were confidential, that he intended said statements to be confidential, and that IAD investigators were acting as agents of the city attorney's office. Thus Officer Curiel's claim of attorney-client privilege was sustained and the previously granted discovery order was modified to exclude his statements to IAD investigators. Apparently believing it lacked power to do so, the court declined to impose sanctions on the prosecution based on this exercise of privilege. ⁶

Upon hearing defendant's application for extraordinary relief, the superior court found the same as did the municipal court, but concluded that the court had the authority to impose sanctions for the exclusion of Officer Curiel's statements to IAD, and that under the circumstances it should consider whether such sanctions, including dismissal or exclusion of Curiel's testimony, should be imposed.

The question of whether sanctions may be imposed on the prosecution based on Officer Curiel's exercise of the privilege to prevent disclosure of his statements to IAD investigators arises only if, in the first instance, the requisites for the exercise of such a privilege were present.

Civil discovery procedure has no relevance here to proceedings involving a criminal prosecution. (Pitchess v. Superior Court, 11 Cal.3d 531, 536, 113 Cal.Rptr. 897 522 P.2d 305.) Unlike the statutory development of civil discovery in California, the right of an accused to seek discovery in the course of preparing his defense to a criminal prosecution is a judicially created doctrine evolving in the absence of guiding legislation. (Ballard v. Superior Court, 64 Cal.2d 159, 176, fn. 12, 49 Cal.Rptr. 302, 410 P.2d 838.) Allowing an accused the right to discover is based on the fundamental proposition that he is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information. (Hill v. Superior Court, 10 Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353.) 'Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, and in particular it has no interest in convicting on the testimony of witnesses who have not been as rigorously cross-examined and as thoroughly impeached as the evidence permits.' (People v. Riser, 47 Cal.2d 566, 586, 305 P.2d 1, 13, cert. den. 353 U.S. 930, 77 S.Ct. 721, 1 L.Ed.2d 724, app. dis. 358 U.S. 646, 79 S.Ct. 537, 3 L.Ed.2d 568, disapproved on other grounds, People v. Morse, 60 Cal.2d 631, 649, 36 Cal.Rptr. 201, 388 P.2d 33.) Here, the state has asserted no privilege, and had it successfully asserted its 'official information' privilege (Evid.Code, § 1040) adverse consequences, namely dismissal of the charges or a directed verdict against the prosecution on the issue to which the excluded material relates, would have followed. (See Pitchess v. Superior Court, 11 Cal.3d 531, 539, 113 Cal.Rptr. 897, 522 P.2d 305; United States v. Reynolds, (1953) 345 U.S. 1, 12, 73 S.Ct. 528, 97 L.Ed. 727; Price v. Superior Court, 1 Cal.3d 836, 842--843, 83 Cal.Rptr. 369, 463 P.2d 721; Evid.Code, § 1042, subd. (a).)

Ordinarily, the statements of Officer Curiel, the complaining witness, to representatives of the police department would be discoverable. ⁷ (See Joe Z. v. Superior Court, 3 Cal.3d 797, 805, 91 Cal.Rptr. 594, 478 P.2d 26.) In order for Officer Curiel to successfully invoke the attorney-client privilege he was obliged to demonstrate that there existed between himself and the city attorney's office a professional attorney-client relationship, that communications were made in the course of that relationship, and that the communications were intended to be confidential. (Tanzola v. De Rita, 45 Cal.2d 1, 6, 285 P.2d 897; see Evid.Code, § 952.) Passing over the first two criteria, we believe Officer Curiel's assertion of attorney-client privilege was erroneously sustained inasmuch as the record shows as a matter of law that his statements to IAD investigators were not intended to be confidential within the attorney-client privilege.

The attorney-client privilege is based on grounds of public policy and is in furtherance of the proper and orderly administration of justice. (Nowell v. Superior Court, 223 Cal.App.2d 652, 657, 36 Cal.Rptr. 21.) The privilege is a statutory creation, embodied in Evidence Code section 950 et seq., and an exception to the general rule requiring disclosure. (See Evid.Code, § 911.) 'The objective of making a particular communication privileged is to encourage a client to make a complete disclosure to his attorney without fear that others may also be informed. (Citations.)' (Holm v. Superior Court, 42 Cal.2d 500, 506--507, 267 P.2d 1025, 1028, disapproved on other grounds, Suezaki v. Superior Court, 58 Cal.2d 166, 176, 23 Cal.Rptr. 368, 373 P.2d 432.) As an obstruction to the search for all relevant information, the privilege is to be strictly construed. (City & County of S.F. v. Superior Court, 37 Cal.2d 227, 234, 231 P.2d 26; Sanders v. Superior Court, 34 Cal.App.3d 270, 280, 109 Cal.Rptr. 770.)

In order for an individual to successfully invoke the attorney-client privilege it must be shown that he had relied on the confidentiality of the relationship in the communication to his attorney. (People v. Sturgess, 178 Cal.App.2d 435, 441, 2 Cal.Rptr. 787.) Thus, if the client communicates with his attorney with the intention that the communication be conveyed to another, the communication is not privileged. (People v. Dubrin, 232 Cal.App.2d 674, 680, 43 Cal.Rptr. 60.) Similarly, if the communication is made by the client in the open presence of a third party not present to further the interest of the client in the consultation, it is not privileged. ⁸ (People v. Poulin, 27 Cal.App.3d 54, 64, 103 Cal.Rptr. 623; (People v. Cox, 263 Cal.App.2d 176, 188, 69 Cal.Rptr. 410.) In either case, the circumstances mandate the conclusion that the communication was not intended to be confidential, notwithstanding the protestations of the client as to his subjective intent. (See People v. Hall,55 Cal.App.2d 343, 356--357, 130 P.2d 733.) Thus, had Officer Curiel made the statements in question to two persons, one acting as agent of the city attorney, and the other acting as representative of the police department investigating grounds for possible discipline, it is apparent that the presence of the latter party would preclude the officer's assertion of the attorney-client privilege. The fact that a single person represented both the city attorney and the police department should not change the result. In either case, as the client knows, the communication is not confined to the attorney-client relationship. In either case it must be the rule that the law will not afford the communication greater secrecy than the client has attempted.

It appears that the trial court sustained Officer Curiel's assertion of attorney-client privilege as a result of mistaken reliance on the 'dominant purpose' doctrine. This principle, the product of civil discovery proceedings, was first announced in Holm v. Superior Court, supra, 42 Cal.2d 500, 267 P.2d 1025, 268 P.2d 722 in which plaintiff in a negligence action sought discovery of, Inter alia, defendant bus driver's statement to an agent of his corporate employer, also a defendant, for forwarding to the defendants' attorney for use in possible litigation....