220 Cal. App. 4th 389
Cal. Ct. App.2013Background
- Defendant Denise Goodwin charged with murder and related felonies; deputy public defender Terry Zimmerman represented her for part of the case.
- Zimmerman lodged with the superior court a portfolio (will/trust documents) and eight unopened pieces of mail addressed to the victim; the court released those items to the District Attorney without objection at that time.
- Prosecution sought discovery about who handled or provided the items and moved to compel Zimmerman's testimony about how she acquired them; Goodwin's counsel asserted attorney-client privilege and other objections.
- At an Evidence Code §405 hearing Zimmerman refused to answer 12 questions about when, where, from whom, and how she obtained and handled the portfolio and mail, invoking the attorney-client privilege.
- The superior court found the privilege did not apply (after in camera consideration), ordered Zimmerman to answer, found her refusal to answer a direct contempt, and imposed a custodial coercive sanction (stayed pending appeal).
- Zimmerman petitioned for a writ of prohibition; the Court of Appeal denied the petition, holding Zimmerman failed to carry her burden to show agency (a prerequisite to extending privilege to evidence delivered by a third party), and the contempt adjudication was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney-client privilege covers information about how attorney obtained physical evidence delivered by a third party | Zimmerman: privilege applies because evidence was delivered by Goodwin's agent(s); attorney need only represent agent involvement to invoke privilege | People: privilege does not apply unless agency is shown; underlying facts about possession are not privileged | Court: Privilege can extend to client agents, but party claiming privilege must prove existence and scope of agency with facts; Zimmerman failed to do so, so privilege did not bar the questions |
| Whether contempt citation and custodial sanction for refusal to answer were lawful | Zimmerman: she believed answers were privileged and refused in good faith; cannot be compelled to disclose privileged content to establish privilege | People: court lawfully ordered answers to non-privileged factual questions and properly adjudicated contempt for willful refusal | Court: Most withheld questions sought non-privileged facts; refusal was direct contempt; contempt adjudication and sanction were proper |
Key Cases Cited
- People v. Meredith, 29 Cal.3d 682 (privilege protects attorney-client communications and derivative observations but does not shield attorney-altered or independently obtained evidence)
- People v. Lee, 3 Cal.App.3d 514 (privilege inapplicable to evidence from non-client third person unless that person acted as the client's agent)
- Mahoney v. Superior Court, 142 Cal.App.3d 937 (party asserting privilege bears burden to establish it exists)
- City & County of San Francisco v. Superior Court, 37 Cal.2d 227 (third-party agent acting at counsel’s request may be intermediate agent and communications may be privileged)
- Upjohn Co. v. United States, 449 U.S. 383 (privilege protects communications but not underlying facts; rationale for encouraging full client-lawyer communications)
- Barber v. Municipal Court, 24 Cal.3d 742 (criminal defendant’s right to counsel includes assurance of confidential communications)