People v. Gardner

• Decision Date: 12 June 1980
• Docket Number: Cr. 18802
• Citation: 165 Cal.Rptr. 415,106 Cal.App.3d 882
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Larry Augustus GARDNER, Defendant and Appellant.

Page 415

165 Cal.Rptr. 415

106 Cal.App.3d 882

The PEOPLE, Plaintiff and Respondent, v. Larry Augustus GARDNER, Defendant and Appellant.

Cr. 18802.

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

June 12, 1980.

Quin Denvir, State Public Defender, Harriet Wiss Hirsch, Deputy Public Defender, San Francisco, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., William D. Stein, Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

GRODIN, Associate Justice.

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 him that Gardner "had written a statement which would clear Campbell and Barbara Johnson of any involvement" in the crime for which they and Gardner had been arrested. Upon receiving this information, Detective Sparks immediately had appellant removed from his cell and seized from the cell a writing tablet containing the following letter written by Gardner: "To P.D. The only crime Eugene Campbell and Barbara Johnson is guilty of is being in my room at the time the police came. They arrived at 7:30, saw who was in the room and said they were putting a freeze on the room (meaning nobody or nothing could go out nor come in). Then at 11:30 they came back with warrants with the three of our names on it. This crime was committed by me, not us. They had no knowledge of what had taken place two days prior to our arrest. For the interest of justice and to assure them of their human rights, formal charges should not be read against them. I state again, they had no knowledge of the crime that was committed. I think the Salinas Police Department owe these two people (Eugene Campbell and Barbara Johnson) an apology and the Salinas California (sic ) should print a retraction. I confess. They are innocent. Signed, Larry Gardner (P.S. Now where do we go from here? I wouldn't talk to anybody in the police department until I talked to somebody from your office)." Sparks confronted Gardner with the letter, and Gardner protested that the letter was confidential and intended for his attorney. Appellant moved to suppress the letter on the basis of the lawyer-client privilege; ¹ but the motion was denied, and the letter was read to the jury at Gardner's trial.

As codified in Evidence Code section 950 et seq. the lawyer-client privilege, when properly claimed, protects against disclosure of any "confidential communication between client and lawyer," a term defined to include "information transmitted between a client and his lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information . . . ." (Evid.Code, § 952.)

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. (P) 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, 117 Cal.Rptr. at pp. 84-85, 527 P.2d at pp. 636-637.) 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 communication made in the course of an attorney-client relationship is presumed confidential and the opponent of the privilege bears the burden of proof to establish lack of confidentiality. (Evid.Code, § 917; see also North v. Superior Court (1972) 8 Cal.3d 301, 310, 104 Cal.Rptr. 833, 502 P.2d 1305.) Further, a waiver of confidentiality is not to be assumed lightly: "In considering whether the attorney-client privilege has been waived, we start with the proposition that, as Justice Shinn, concurring, wrote in People v. Kor (1954) 129 Cal.App.2d 436, 447, 277 P.2d 94 . . . . 'The privilege of confidential communication between client and attorney should be regarded as sacred. It is not to be whittled away by means of specious argument that it has been waived. Least of all should the courts seize upon slight and equivocal circumstances as a technical reason for destroying the privilege.' (Quoted with approval in Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 71, 105 Cal.Rptr. 241 . . . ; People v. Flores (1977) 71 Cal.App.3d 559, 565, 139 Cal.Rptr. 546. . . .)" (Lohman v. Superior Court (1978) 81 Cal.App.3d 90, 94, 146 Cal.Rptr. 171, 175.)

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, 146 Cal.Rptr. at p. 175; 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); 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...