People v. Jordan, A015755

• Decision Date: 29 January 1990
• Docket Number: No. A015755,A015755
• Citation: 217 Cal.App.3d 640,266 Cal.Rptr. 86
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Warren D. JORDAN, Jr., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 86

266 Cal.Rptr. 86

217 Cal.App.3d 640

PEOPLE of the State of California, Plaintiff and Respondent, v. Warren D. JORDAN, Jr., Defendant and Appellant.

No. A015755.

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

Jan. 29, 1990.

Certified For Partial Publication ^*

Rehearing Denied Feb. 27, 1990.

Review Denied April 26, 1990.

John K. Van de Kamp, Atty. Gen., Steve White, Chief Assis. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., and Ronald E. Niver, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

Donald Thomas Bergerson, San Francisco, for defendant and appellant.

BY THE COURT.

An information filed in the Marin County Superior Court charged Warren D. Jordan, Jr., (hereafter appellant) with four felony counts arising from an assault on a Los Angeles Deputy District Attorney, Robert Savitt, and the Chairman of the State Board of Prison Terms, Raymond Brown, at a parole hearing on November 6, 1980. Counts I and III alleged the offense of attempted murder (Penal Code, §§ 664 and 187), and counts II and IV alleged the offense of aggravated assault by a life prisoner (Penal Code, § 4500). With respect to each count, the information alleged associated enhancements that are not here at issue.

After pleading not guilty, appellant received a lengthy jury trial, punctuated by extended arguments and hearings on defense motions. The jury returned a verdict of guilty as charged on counts I and II relating to the assault on Robert Savitt, and of guilty of the lesser included offenses of attempted voluntary manslaughter (Penal Code, § 664 and 192) and assault with a deadly weapon (Penal Code, § 245) on counts II and IV, relating to the assault on Raymond Brown. The jury found the enhancement for use of a deadly weapon to be true with respect to counts I and III and the enhancement of great bodily injury true for counts I and II.

Upon denial of his motion for new trial, appellant was sentenced to a life term on count II, to be served consecutively to that which he is now serving, and to an upper term of four years on count IV, to be served consecutively to the sentence imposed on count II and the term he is now serving.

At the time of the offense, appellant, a black male age 33, was serving a life sentence in the Adjustment Center, a high security section of San Quentin prison. On November 6, 1980, he was escorted to a parole hearing of the board of prison terms after being subject to an unclothed body search. Throughout the hearing, he remained manacled with a waist chain and handcuffs. Also present at the hearing were three members of the board of prison terms, including the Chairman Raymond Brown, a representative of the Los Angeles District Attorney's Office, Robert Savitt, and a court reporter. At the end of the hearing, the board recessed to consider appellant's suitability for parole.

About 40 minutes later, appellant was escorted back into the hearing room and informed that the board had decided to deny his parole. He asked, "[i]s that it?" Then, as other participants rose to leave the room, he grasped a five-inch metal blade in his right hand, which suddenly appeared free of the handcuffs, and lunged at Savitt, the person sitting closest to him at the hearing. Savitt backed away and attempted to fend off the knife with his arms, receiving a stab wound in his right bicep and his left wrist. Coming to his aid, Chairman Brown rushed appellant and managed to push him to the floor though receiving himself a knife wound on the elbow.

Guards soon arrived and took appellant into custody. A short hacksaw blade and a handcuff key were later found in his mouth. The knife used in the assault was fashioned from metal taken from the bottom of a door to appellant's cell. It was never clearly established how appellant had succeeded in smuggling these items past the body search but some evidence suggested that they had been concealed in his rectum and removed when he asked permission to visit the restroom during the hearing.

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Lastly, appellant argues that his Sixth Amendment right to counsel was violated by the electronic monitoring of conversations with defense counsel. The presence of electronic monitoring equipment in prison conference rooms came to light at the end of the first week of trial through an article in the San Francisco Examiner. The trial court thereupon conducted a three-day in camera hearing to determine whether the equipment had been used to monitor conversations between appellant and defense counsel, and then denied appellant's motion to dismiss the indictment.

The prison reserves five conference rooms in the visitor's center for attorney-client visits. William Nyberg, Associate Warden of Operations, testified that the previous week he had investigated monitoring equipment in the gun cage of the visiting center. The equipment consisted of a telephone and headset locked in a metal box with a line connecting to other telephones. He discovered that the telephone could overhear conversations in two of the rooms but not in two other rooms. He then cut the line and removed the telephone from the gun cage without testing whether it was also connected to the fifth room.

Appellant sought to prove that prison authorities had overheard his communications with counsel through circumstantial evidence indicating that they had an incentive to overhear the communications and pursued a pattern of scheduling his attorney conferences in the monitored rooms. With regard to incentive, a memorandum signed by former Warden Sumner stated his "strong belief that revolutionary attorneys and their investigators are supplying this man [Jordan] with escape materials and weapons...." On cross-examination, the current gang coordinator expressed similar sentiments.

The evidence at the in camera hearing, together with the declaration of counsel in support of the motion for dismissal, indicated that most of appellant's conferences with counsel and investigators were scheduled in Room A-2, one of the two monitored rooms.

In response, the prosecution produced 14 witnesses each of whom denied any knowledge that the monitoring equipment had ever been used to overhear conversations between a prisoner and counsel. Former warden, George Sumner, testified that the monitoring equipment was installed under his direction early in 1977 to overhear visits with members of gangs and placed in the locked box a short time after installation. He first testified that, to his knowledge, it was used to monitor "three or four" conversations in 1977 and none thereafter, but later conceded on cross-examination that he "believed" it had been used to eavesdrop on visits with the Black Guerrilla family of which appellant was believed to be a member.

With regard to appellant's own visits with counsel, the prosecution presented the testimony of four guards who had manned the gun cage periodically in 1981. Three of the four denied knowing that the locked metal box contained a monitoring device, and all denied having seen the device used. On direct examination, they were asked about six dates when appellant conferred with counsel and specifically denied use of the equipment on those occasions. The prosecution did not call the guards who were on duty during counsel's visit on June 1, 1981, or during several visits between appellant and legal investigators.

After the presentation of this testimony, the trial court denied the motion to dismiss and explained, "I believe the evidence is overwhelming, really, beyond a reasonable doubt that there was no eavesdropping of the attorneys or...