People v. Garewal

• Decision Date: 11 October 1985
• Citation: 173 Cal.App.3d 285,218 Cal.Rptr. 690
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. George Grant GAREWAL, Defendant and Appellant. G000719.
• Court: California Court of Appeals Court of Appeals

Page 690

218 Cal.Rptr. 690

173 Cal.App.3d 285

The PEOPLE of the State of California, Plaintiff and Respondent, v. George Grant GAREWAL, Defendant and Appellant.

G000719.

Court of Appeal, Fourth District, Division 3, California.

Oct. 11, 1985.

Certified for Partial Publication. ^*

Review Denied Feb. 14, 1986. ^**

Michael C. Bourbeau, Los Angeles, and Mark S. Bourbeau for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Frederick R. Millar, Jr. and Rudolf Corona, Jr., Deputy Attys. Gen., for plaintiff and respondent.

CROSBY, Associate Justice.

In the published portion of this opinion, we consider several instances of claimed prosecutorial misconduct and examine the scope of vicarious criminal liability of conspirators for the crimes of their confederates in the wake of recent decisions concerning aiding and abetting.

I

George Grant Garewal was convicted by jury of attempted murder, assault with a deadly weapon, mayhem, two counts of burglary, and conspiracy to commit burglary (Pen.Code, §§ 664/187; 245, subd. (a); 203; 459; and 182, subd. 1/459). He was acquitted of robbery, and special enhancements alleging he was armed with a firearm and inflicted great bodily injury were found not to be true (Pen.Code, §§ 211; 12022, subd. (a); and 12022.7 and 1203.075). The Imperial County District Attorney's office originally charged Ernest Herrera and Garewal's then girlfriend, Caroline Chrisman, as codefendants; but Chrisman was given immunity in exchange for her testimony against the other two.

Extensive media coverage and intense public outrage in the relatively small community where the crimes occurred caused venue to be changed to Orange County. The cases against Herrera and Garewal were severed when the latter, as he later admitted, feigned incompetence to proceed (Pen.Code, § 1368). (The irony of the effect of the delay occasioned by Garewal's charade will not be lost on a reader patient enough to endure the first half of this opinion.) Herrera was tried first; and his conviction was affirmed, as modified, by this court in an unpublished opinion (People v. Herrera (September 26, 1983) 4 Crim. No. 13655).

II

The facts are ugly. On the afternoon of February 14, 1981, Sarah Nicholson and her infant child returned to their home in El Centro, where Garewal, Herrera, and Chrisman were in the process of committing their second residential burglary of the day. When Nicholson drove into her driveway, she blocked the burglars' vehicle.

At Garewal's trial, Chrisman testified Nicholson first demanded identification from the three and then sat in her front seat and began to record the license number of their car. Observing this, Herrera commenced a brutal attack, repeatedly striking Nicholson in the face and shattering her eyeglasses. Garewal and Herrera then pulled her roughly from the car; and Herrera, sitting on her supine body, delivered seven or eight more blows with fists, while Garewal went through her purse. Garewal struck her six or seven times in the head as well.

Herrera next obtained a brick and struck Nicholson eight to ten times in the face while Garewal held her hands. The men then started to walk away, but conversed briefly and returned to the motionless victim. Garewal stood on her neck while Herrera viciously kicked her several times in the head. The burglars then departed, leaving Nicholson for dead and the child unattended.

When Herrera entered the car, he stated, "The bitch should be dead, now." Herrera showed Chrisman a piece of paper and a broken pen. He said, "Sorry Caroline but we had to do that. She can I.D. us." Later, Garewal told Chrisman only her presence kept him from strangling Nicholson.

The victim and her unharmed child were discovered a short while later. Nicholson's injuries were not fatal, but they were devastating. She suffered numerous broken fingers and bones and six major skull lacerations and fractures, plus a cerebral concussion. A corneal laceration permanently destroyed virtually all vision in one eye. She walks and talks with great difficulty, has significantly reduced memory recall--including a total inability to remember the attack upon her--and little capacity for cognitive thinking. Routine household chores are almost impossible for her, and she is unable to perform her former job.

III

After Garewal was found competent to stand trial, the Orange County Public Defender was substituted for court-appointed defense counsel from Imperial County. In a conversation with the latter, the deputy district attorney volunteered to transport the defense files to Orange County and, in order to assure complete discovery, said he would check them to determine whether any police reports were missing. The prosecutor later explained he was motivated by an office directive to reduce copying costs. Oddly, defense counsel agreed to this procedure without cavil.

Reviewing the files, the deputy district attorney began to read a transcribed conversation which he soon realized was a defense investigator's incriminating interview of Garewal. He immediately stopped and reported his action to the district attorney. When he turned the files over to Garewal's new attorney in Orange County the next day, he also informed him of the inadvertent transgression.

Understandably shocked, Garewal's lawyer sought dismissal for prosecutorial misconduct, arguing the attorney-client relationship had been irreparably violated and it was impossible to be sure the defendant's statements would not be used to his disadvantage. The trial court conducted a full evidentiary hearing and denied the motion to dismiss, although it did exclude and sanitize the evidence to the fullest extent possible. First, a motion to recuse the Imperial County District Attorney was granted, and the Orange County District Attorney's office assumed responsibility for the prosecution. Second, the court scrupulously insulated the new prosecutors from even learning of the partial perusal of the Garewal interview, much less the content.

There has been no suggestion that these measures were ineffective, but Garewal nevertheless maintains Barber v. Municipal Court (1979) 24 Cal.3d 742, 157 Cal.Rptr. 658, 598 P.2d 818 and United States v. Levy (3d Cir.1978) 577 F.2d 200 compel dismissal. We disagree. Our Supreme Court found the right to counsel was violated in Barber when an undercover government agent posing as a codefendant infiltrated confidential meetings between misdemeanor defendants and their attorney. Under those circumstances, and specifically because of the chilling effect on the attorney-client relationship, the court found the remedy of exclusion inadequate: "The intrusion, through trickery, of the law enforcement agent in the confidential attorney-client conferences of [defendants] cannot be condoned." (Barber v. Municipal Court, supra, 24 Cal.3d at pp. 759-760, 157 Cal.Rptr. 658, 598 P.2d 818.) Levy reached a similar result, rejecting the notion prejudice need be shown when a police informant posed as a codefendant in attorney-client conferences.

Barber and Levy are inapposite here, however, since both involved intentional intrusions of attorney-client confidences in situations where prejudice to the defendant's Sixth Amendment rights could not be reasonably measured. (As to the assessment of prejudice in other Sixth Amendment cases, see, e.g., People v. Courts (1985) 37 Cal.3d 784, 796, 210 Cal.Rptr. 193, 693 P.2d 778, People v. Joseph (1983) 34 Cal.3d 936, 946, 196 Cal.Rptr. 339, 671 P.2d 843, and People v. Smith (1985) 38 Cal.3d 945, 969, 216 Cal.Rptr. 98, 702 P.2d 180 (dis. opn. of Bird, C.J.).) When a reviewing court is satisfied that no prejudice could have occurred, suppression is generally found to be an adequate remedy, even where the violation of the defendant's Sixth Amendment rights was deliberate. (People v. Towler (1982) 31 Cal.3d 105, 181 Cal.Rptr. 391, 641 P.2d 1253 [search of defendant's cell revealed defense strategy and materials]; People v. Glover (1985) 169 Cal.App.3d 689, 215 Cal.Rptr. 456 [same]; People v. Fulton (1984) 155 Cal.App.3d 91, 201 Cal.Rptr. 879 [defendant's legal strategy probed by wired informant during ongoing grand jury proceedings].) As Glover explains, "Given that the evidence seized during the search was never introduced, and thus had no direct effect on the jury's verdict, in effect, appellant is asking us to reverse his conviction as a sanction for prosecutorial misconduct, rather than to cure any actual prejudice appellant suffered at trial." (People v. Glover, supra, 169 Cal.App.3d at p. 696, 215 Cal.Rptr. 456.)

The court added, "While the case at bar is perhaps distinguishable [as is this case] from both Towler and Fulton since in both cases the defendants failed to seek dismissal of the charges upon discovery of the prosecutorial misconduct, and in this case [as here] appellant did seek dismissal, significantly, in both Towler and Fulton, the focus was on what, if any, prejudice resulted from the improper prosecutorial activity. In both cases, where defendant suffered no harm, he was not entitled to a reversal. In Barber, the prejudice could not be calculated...." (Id., at p. 699, 215 Cal.Rptr. 456.) The record here amply supports the conclusion that the prosecutor's inadvertent intrusion was not prejudicial to Garewal; consequently, the sanction of dismissal would have been unwarranted.

Moreover, outgoing defense counsel was at least as culpable as the prosecutor in bringing about this bizarre incident. Although we are bewildered by his conduct in voluntarily relinquishing defense files containing confidential incriminating information, knowing the prosecutor would peruse them for missing police reports before they were delivered to Garewal's new attorney, in view of our holding there is no need to respond to the Attorney General's suggestion that his action waived any claim of confidentiality--or face the obvious ineffective assistance of counsel problem that...