California Court of Appeals, Fourth District, First Division
Original proceeding on a writ of prohibition. Denied. San Diego County Super. Ct. No. SCD235172
Henry C. Coker, Public Defender, Randy Mize, Chief Deputy, Matthew Braner and Robert Ford, Deputy Public Defenders, for Petitioner.
No appearance on behalf of Respondent.
Bonnie M. Dumanis, District Attorney, Laura E. Tanney and Martin E. Doyle, Deputy District Attorneys, for Real Party in Interest.
This petition for writ of prohibition filed by Terry Zimmerman, the former attorney for defendant Denise Michelle Goodwin, challenges the superior court's adjudication of contempt against Zimmerman. The court found Zimmerman in direct, continuing contempt for failing to answer certain questions regarding the circumstances under which she came into possession of specific evidence (a portfolio and mail) relevant to the prosecution's case against Goodwin. Zimmerman contends that the evidence was delivered to her in some way by Goodwin's agent or agents; thus, the circumstances of the delivery as well as Zimmerman's observations regarding the delivery are protected by the attorney-client privilege.
This is a case of first impression. Although Zimmerman cites two California cases that mention a defendant's use of an agent to deliver evidence to defense counsel (People v. Meredith (1981) 29 Cal.3d 682 (Meredith) and People v. Lee (1970) 3 Cal.App.3d 514 (Lee)), neither case involved an actual finding of agency in a criminal context. Instead, Zimmerman presents a novel argument whereby she contends a prima facie showing of the existence of the privilege can be satisfied by an attorney representing to the court that she received evidence through the defendant's agent or agents.
The party asserting the existence of a privilege bears the burden of establishing it exists. (Mahoney v. Superior Court (1983) 142 Cal.App.3d 937, 940-941 (Mahoney).) On the record before us, Zimmerman did not satisfy her burden because she offered almost no evidence that would allow the court to determine the existence of agency, which is generally a question of fact. Without the existence of agency, Zimmerman's claim of privilege necessarily failed and the superior court's order for Zimmerman to answer the subject questions was lawful and proper. Further, the court's citation and later adjudication of contempt also were proper.
We are mindful that Zimmerman cannot be compelled to disclose the content of an allegedly privileged communication to allow the court to determine if the privilege exists. However, we are not willing to expand the law of privilege to allow an attorney to claim the privilege exists in an agency situation without proving the preliminary fact of agency.
The petition is denied.
FACTUAL AND PROCEDURAL BACKGROUND
Goodwin is the defendant in San Diego Superior Court case no. SCD235172. She is charged with first degree murder (Pen. Code, § 187, subd. (a)) with a special circumstance that she committed the murder for financial gain (Pen. Code, § 190.2, subd. (a)(1)). Goodwin also is charged with 10 other felony counts related to her fraudulent conversion of the victim's property.
Zimmerman is a deputy public defender. Zimmerman was assigned to represent Goodwin from September 2011 through the end of April 2012. On April 16, 2012, Zimmerman lodged with the superior court a large manila envelope containing: (1) a zippered leather portfolio holding various documents, including a will and trust related documents and other papers purporting to belong to the victim (Gerald Rabourn); and (2) another envelope containing eight items of unopened mail addressed to Rabourn. The court provided the prosecution and the defense the opportunity to object to the court's release of these items to the District Attorney. No party objected and the items were released.
For reasons unrelated to this petition, Zimmerman was subsequently transferred by her office to Vista and a new deputy public defender was assigned to represent Goodwin.
By serving Goodwin's new counsel with a request for prosecution discovery, the prosecution attempted to discover certain information about the documents released by the court, specifically "the identification of any individuals and their contact information, other than [Goodwin], who handled or possessed the evidence at any time, and/or provided information concerning the evidence, its location, and any movements or alterations made to such evidence." These efforts proved unsuccessful. Ultimately, the prosecution filed a motion to compel production of evidence and Zimmerman's testimony about the documents. Goodwin's counsel opposed the motion, arguing that (1) Zimmerman provided ineffective assistance of counsel because she accepted the documents and turned them over to the court; (2) the documents should be excluded under Evidence Code section 352; and (3) the information the prosecution sought was protected by the attorney-client privilege.
On August 29, 2013, the court heard the prosecution's motion to compel. After considering the pleadings and listening to oral argument, the court found that Goodwin's current counsel had not shown that Zimmerman rendered ineffective assistance of counsel. The court noted that the prosecution had "announced [its] intention to call Ms. Zimmerman at trial as a witness" and found it "likely... that [Zimmerman] is going to claim the attorney-client privilege." Thus, the court set an Evidence Code section 405 hearing to address the issue. In doing so, the court reminded the parties that the party claiming the attorney-client privilege had the burden to show the privilege applies.
The court held the Evidence Code section 405 hearing on September 3, 2013. During the hearing, Zimmerman testified, but refused to answer certain questions. Specifically, Zimmerman invoked the attorney-client privilege in response to the following questions:
1. When did the portfolio first come into your possession?
2. When did the mail first come into your possession?
3. Did you take possession of the portfolio and the mail ...