People v. Navarro
| Decision Date | 15 August 2005 |
| Docket Number | No. B173591.,No. B175513.,B173591.,B175513. |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Donna NAVARRO, Defendant and Appellant. Edward Corella Navarro, Petitioner, v. Superior Court of the State of California for the County of Los Angeles, Respondent; The People, Real Party in Interest. |
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Michael R. Johnsen and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
Steve Cooley, District Attorney, Patrick Moran and Matthew G. Monforton, Deputy District Attorneys, for Real Party in Interest.
No appearance by respondent superior court.
A lawyer goes to the police, tells them her clients are committing a string of crimes, and also tells them where to look for evidence of those crimes. Based on that information—which the lawyer learned through her representation of the clients—the police obtain a search warrant and find the evidence, leading to criminal charges against the clients. Should the search warrant be quashed and all evidence found through the warrant suppressed as a remedy for the lawyer's alleged breach of the attorney-client privilege? Because the government did not procure or induce the breach, we conclude the answer is no.1
Acting on a tip from a confidential informant, Los Angeles County sheriff's deputies obtained a warrant in April 2002 to search an auto body repair shop and the homes of several members of the Navarro family, including those of brothers Alejandro and Edward Navarro. Based on evidence seized from those locations, Alejandro, Edward, and Edward's wife, Donna Navarro (the Navarro defendants), were charged with various counts related to their alleged operation of a car theft ring.2
After reviewing the sheriff's affidavit submitted in support of the search warrant, the three Navarro defendants became convinced that their sister, Elizabeth, had been the sheriff's unnamed confidential informant. Elizabeth is a lawyer and had previously represented some of the Navarro defendants in both civil and criminal matters. Donna and Alejandro brought motions to: (1) order disclosure of the identity of the informant (Evid.Code, §§ 1041, 1042); and (2) quash the search warrant, which they contended would thereby lead to a failure of the search "as a fruit of the poisonous tree...." According to Alejandro's declaration, he, Edward, and Donna met with Elizabeth in early 2002 to get legal advice regarding the circumstances surrounding the charges that were later brought against them. Donna, Edward, and Alejandro "asked Elizabeth about the law and our rights and we discussed strategy and how to deal with the situation from a legal stand point." Donna and Alejandro argued that disclosure of the informant's identity was important in order to prove that Elizabeth had been the informer and had therefore breached the attorney-client privilege by going to the sheriff. Once that was established, quashing the search warrant would be the proper remedy for such a breach, they contended. That motion was heard by Judge Candace J. Beason and was denied without prejudice on November 4, 2002, on two grounds: First, because there was no evidence to show "complicity" by the sheriff under U.S. v. White (7th Cir.1992) 970 F.2d 328 (White); and second, because there was insufficient proof of an attorney-client relationship.
One month later, Donna and Alejandro filed a supplemental motion to disclose the identity of the confidential informant, which included a more detailed declaration from Alejandro concerning the existence of an attorney-client relationship with Elizabeth in connection with the charges against the Navarro defendants. Judge Beason then agreed to hold an in-camera hearing concerning the sheriff's complicity, if any, in Elizabeth's supposed breach of the attorney-client privilege. On March 21, 2003, the sheriff's officer who initiated the search warrant testified in camera to the identity of the informant and the circumstances under which the informant contacted the sheriff. After hearing that testimony, the court found no complicity by the sheriff and denied Donna and Alejandro's motion. Six months later, Donna entered a negotiated plea of guilty to the three grand theft counts, but did so on the condition that she would be able to appeal the issues relating to the supposed breach of her attorney-client privilege. Donna then filed a notice of appeal.
Edward was not arrested until December 2003. Based on his suspicion that Elizabeth had been the sheriff's informant, he filed a motion in early January 2004 to disclose the identity of the informant, quash the search warrant, and suppress evidence. That motion was denied without prejudice by Judge Carlos A. Uranga. Edward brought a similar motion a few weeks later, which was to be heard before Judge Clifford L. Klein. Judge Klein was unsure about the proper procedural vehicle for such a motion, and decided to hear it under Evidence Code section 402, which governs foundational challenges to the admissibility of evidence. At the March 22, 2004, hearing, the Navarro defendants and friends and family members testified that Elizabeth admitted to having supplied the sheriff with information about the Navarro defendants' alleged car theft ring.
The hearing was continued to March 26, 2004, where the sheriff's officer who initially dealt with the informant was called to testify. The deputy first testified in open court about his contacts with the informant. According to the deputy, the informant initiated contact with him. They had from 10 to 40 phone conversations, and, of those, the informant placed perhaps as many as 90 percent of the calls. Under cross-examination by Edward's lawyer, the deputy said he never asked the informant to act as his agent, never asked the informant to get any information for him, and never indicated that it would be helpful to have certain specific information. The court then decided to continue the deputy's testimony in camera. After the in-camera testimony was over, the court scheduled argument for April 5, 2004.
At the April 5 hearing, the court confirmed that it had earlier held an in-camera hearing where the informant testified about the informant's contacts with the sheriff. The court also confirmed that the issue it would decide was whether there had been any complicity by the sheriff in violation of White, supra, 970 F.2d 328. The court specifically declined to reach the issue of whether any attorney-client relationship existed, noting that defense counsel had not been given an opportunity to cross-examine the informant. The court found that the sheriff had not engaged in a "knowing procurement" of privileged information, had not intentionally or knowingly violated that privilege, and therefore had not been complicit in the breach of any privilege that might have existed. It denied Edward's motion.
Edward petitioned this court for a writ of mandate or prohibition, declaring that he could not be prosecuted based on any evidence found through the search warrant. We stayed proceedings, issued an order to show cause, and directed the parties to brief the issues. We later issued an order stating that we would hear both Edward's writ petition and Donna's appeal at the same time. Because the factual issues are nearly identical, and because the legal issues are identical, we issue this one decision to resolve both matters.3
The Navarro appellants contend that the sheriff violated their Sixth Amendment right to counsel by using privileged information from their lawyer to obtain the search warrant.4 For purposes of our discussion, we assume that Elizabeth acted as the Navarro appellants' lawyer in connection with this case and that Elizabeth breached the lawyer-client privilege when she provided the sheriff with information obtained through her representation. Although we assume that state of facts, we do not decide the issue and express no opinion as to whether Elizabeth had in fact been the informant. We start our substantive analysis with a short primer on the attorney-client privilege.
The attorney-client privilege, which authorizes a client to refuse to disclose, and prevent others from disclosing, confidential communications between lawyer and client, is considered a hallmark of our jurisprudence. (Evid.Code, §§ 950 et seq.; Solin v. O'Melveny & Myers (2001) 89 Cal.App.4th 451, 456-457, 107 Cal.Rptr.2d 456.) The privilege is fundamental to our legal system and furthers the public policy of ensuring every person's right freely and fully to confer with and confide in his or her lawyer in order to receive adequate advice and a proper defense. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1146, 86 Cal.Rptr.2d 816, 980 P.2d 371.) Safeguarding a client's confidences is one of a lawyer's most basic obligations. (Ibid., citing Bus. & Prof.Code, § 6068, subd. (e)(1) [].) The privilege applies even where the attorney has not actually been retained. When a person seeks legal assistance from an attorney in anticipation of hiring the lawyer to represent him, any information acquired by the lawyer is privileged even if actual employment does not result. (People v. Gionis (1995) 9 Cal.4th 1196, 1208, 40 Cal.Rptr.2d 456, 892 P.2d 1199.)
The Navarro appellants contend that because the Sheriff utilized privileged information in obtaining the warrant, the warrant should have been...
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