RICHARD BARBER et al., Petitioners, v. THE MUNICIPAL COURT FOR THE SAN LUIS OBISPO COUNTY JUDICIAL DISTRICT OF SAN LUIS OBISPO COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
L.A. No. 30898
Supreme Court of California
Aug. 10, 1979
24 Cal. 3d 742
Richard A. Frishman for Petitioners.
Fred Okrand and John M. Sink as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Frederick R. Millar, Jr., William R. Weisman, Deputy Attorneys General, Robert N. Tait, District Attorney, and Gerald T. Shea, Deputy District Attorney, for Real Party in Interest.
OPINION
BIRD, C. J.-This court must decide what is the proper remedy for an accused when his constitutional right to counsel has been denied by the actions of an undercover police officer who poses as a codefendant and attends the confidential attorney-client conferences of the accused.
I
On August 7, 1977, approximately 50 people, including all of the petitioners, participated in a “sit-in” near the site of the Pacific Gas and Electric Company‘s (hereafter, P.G. & E.) Diablo Canyon nuclear facility to demonstrate their opposition to the use of nuclear power to generate energy. The petitioners were arrested and each was charged with two counts of trespassing. (
On October 4, 1977, before the date set for trial of these cases, petitioners learned that one of the codefendants was an undercover police officer. They moved to dismiss on the grounds that presence of the agent at confidential attorney-client meetings had deprived them of their rights to the effective assistance of counsel and due process of law.
At the hearing on the motion the following testimony was received:
Two officers, Detective C. D. Smith of the Santa Barbara County Sheriff‘s Department and reserve Deputy Sheriff James Lee of the San Luis Obispo County Sheriff‘s Department, were assigned by their respective employers to attend the meetings in an undercover capacity in order to learn more about the group, the plans for the demonstration, and to ascertain whether there would be any violence at the demonstration.2
Both officers became intimately involved with the group and attended numerous meetings at which plans for the demonstration were discussed. At all of these meetings it was strongly emphasized that the group was committed to nonviolence and at none of these meetings was there any indication that the demonstration would be anything other than peaceful and nonviolent. The two officers also attended an all-day “nonviolent training” session, attendance at which was required for those who would actually participate in the sit-in. At this meeting the participants engaged in various role-playing sessions designed to teach the participants how to react nonviolently to stress situations which might be encountered with police officers.3
Prior to the demonstration, representatives of the group asked to meet with members of the San Luis Obispo County Sheriff‘s Department and representatives of P.G. & E. Two meetings were held at which the representatives of the group told the sheriff‘s department and P.G. & E. officials of the plans for the demonstration, including the time it was to be
On August 3, 1977, at the request of the county district attorney‘s office, Judge Conklin, Presiding Judge of the Municipal Court for the San Luis Obispo Judicial District, met in the district attorney‘s office with several deputy district attorneys and sheriff‘s officers. At this meeting the planned demonstration was discussed. Judge Conklin was informed that there would be violations of certain provisions of the Penal Code. Decisions were made to arraign the arrestees on the same day of the arrests in the county jail auditorium and to release all of them without bail whether or not they signed O.R. release forms.
On August 7th, the demonstration occurred as planned. About 50 people, including petitioners and Officers Lee and Smith, accompanied by approximately 75 to 100 news media people, crossed over two fences and entered an access road maintained by P. G. & E.5 The group proceeded on the access road to a point about one-half mile from the main entrance and six and one-half miles from the power plant. After warnings to disperse were given, the demonstrators were arrested.6 The arrestees were transported to the county jail, where petitioners and Officer Lee were booked and charged.7
Attorneys Haynes and Stone, having been asked to represent the group, arrived at the jail to consult with the arrestees, including Officer Lee. Officer Lee was present at this confidential attorney-client conference and testified that he was sure defense strategy was discussed but was not paying close attention.
Detective Doug Mansfield, Officer Lee‘s immediate supervisor, testified that he informed Deputy District Attorney Shea the day after the demonstration that defendant Lee was a police officer. Shea did not inform defense counsel.
Officer Lee continued to pose as a codefendant with petitioners and as a client of the firm of Haynes and Olpin. As such, he attended numerous confidential attorney-client conferences, all of which “went into detail” about various aspects of the cases, including defense strategy. Lee testified he participated in discussions “about the defense in general” but did not recall discussing his “personal defense.”
On one occasion Attorney Stone asked for volunteers to accompany her to inspect the site of the demonstration. Lee was one of two defendants who volunteered and thereby became involved in the strategy discussion occurring at the scene. On another occasion, defense counsel asked that one of the group draw a map of that area. Lee again volunteered to do so. He prepared a detailed map of the fences and gates on the site, but failed to show the presence of an opened gate at a key location. Officer Lee testified that he had not intentionally omitted the gate and did not intend to mislead the petitioners.9 Lee admitted, however, that prior to drawing the map, he had inspected the site with his superiors.
Attorney Stone testified that she inspected the site after Lee had given her the map but failed to notice the presence of the gate. She testified that
From the time of the arrest on August 7th to October 4th, Lee reported to Detective Doug Mansfield or Captain Wood. Most of the information that Lee communicated to his superiors was communicated orally, either by telephone or in person. Lee filed only one written report during that period. Lee‘s superiors testified that, although they could not remember what information Lee gave them, they were sure he gave them no information about defense strategy. Lee stated that he informed his superiors that the defense was to become more “political.” All three officers testified that they did not discuss Lee‘s reports with any members of the district attorney‘s office.
The sheriff‘s department justification for maintaining Lee in his undercover assignment after the arrests was to gain information about possible infiltration of the group by terrorists or to learn of plans for future violent demonstrations by the group. The officers testified that, although the group had informed them that they planned another demonstration sometime in January 1978, there was no indication of any terrorist infiltration or advocacy of violence by any member of the group.
At one point Officer Lee decided he would enter a plea of nolo contendere on October 4th and remove himself from the court proceedings. He mentioned these plans on October 1st to some of the defendants but did not discuss them with any of the attorneys. Shortly before October 4th, however, the group decided to substitute new counsel and pursue a more “political” defense. Lee then decided not to enter the plea because, he claimed, he was not sure of the “legal ramifications” of entering a plea while represented by the new attorneys. He admitted that he had no intention of discussing these “legal ramifications” with new counsel; he intended instead to talk to Detective Mansfield.
Sometime during October 4th, Judge Conklin informed new counsel that one of his clients was an undercover police officer. The next day an article appeared in the local paper revealing Lee‘s true identity.
The trial court denied the motion to dismiss on the grounds that there had been no evidence to show that information gained by Officer Lee had been transmitted to the prosecution. However, the court ordered “that the people may not use any evidence obtained by Mr. Lee or that was derived from his presence at any meetings between counsel, either previous counsel, present counsel or future counsel, if such be the case, nor the fruits thereof may not be used in evidence, and that they may not in rebuttal to any evidence put forth by the defendants, use any evidence whatsoever unless the prosecution can first prove beyond a reasonable doubt that such evidence was obtained independently of the activities of Mr. Lee.”
This writ petition followed.
II
The right to counsel is guaranteed to a defendant in a criminal case by both the Sixth Amendment to the United States Constitution and
It is for this reason that the courts have recognized that the right to counsel guaranteed by the California Constitution embodies the right to communicate in absolute privacy with one‘s attorney. Former article I, section 13 (now
In addition to the constitutional right to consult privately with counsel, there are numerous legislative enactments designed to protect the confidentiality of attorney-client communications. For example,
Respondent contends that these principles do not apply to the present case for several reasons. First, it argues, the intrusion of a state agent into confidential attorney-client communications does not violate the right to counsel if the purpose for the intrusion is to detect future crimes rather than to discover defense strategy. This argument has been previously rejected by our courts. In In re Snyder, supra, and In re Jordan, supra, the state asserted that the intrusions in those cases10 were justifiable to detect
It is irrelevant to the reasons underlying the guarantee of privacy of communication between client and attorney that the state is intruding for one purpose rather than for another. “[T]he purpose and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosure to the attorney of the client‘s objects, motives, and actions.” (In re Jordan, supra, 7 Cal.3d at p. 940.) The chilling effect on full and free disclosure by a client would be the same, whatever the state‘s asserted purpose for intruding. The intruding state agent by his presence will be privy to confidential communications. Aware of this possibility, a client will be constrained in discussing his case freely with his attorney.
Respondent next contends that petitioners’ discussions with their attorneys were not confidential because they openly discussed their cases in the presence of other defendants. However,
Finally, respondent relies on a recent decision by the United States Supreme Court, Weatherford v. Bursey (1977) 429 U.S. 545 [51 L.Ed.2d 30, 97 S.Ct. 837]. In that case, both a defendant (Bursey) and an undercover agent (Weatherford) were arrested and prosecuted for vandalizing the offices of a local draft board. Each man was released on bond and retained a separate attorney. On two occasions the defendant Bursey and his attorney asked Weatherford to confer with them “in an effort to obtain [from Weatherford] information, ideas or suggestions as to [Bursey‘s] defense.” Weatherford did accept these invitations but did not discuss with or pass on to his superiors or to the prosecution any details or information regarding Bursey‘s trial plans, strategy, or anything having to do with the criminal action pending against Bursey. (Id., at p. 548 [51 L.Ed.2d at p. 35].) Weatherford remained in his undercover role until he “lost some of his effectiveness as an agent in the weeks preceding trial because he had been seen in the company of police officers. . . .” (Id., at p. 549 [51 L.Ed.2d at p. 36].) Weatherford was called as a witness at Bursey‘s trial and he testified only to events occurring prior to their arrests. Following his conviction, Bursey filed suit against Weatherford and his superiors under 42 United States Code, section 1983, alleging he had been deprived by them of his right to counsel under the Sixth and Fourteenth Amendments to the United States Constitution. A divided Supreme Court upheld the trial court‘s judgment in favor of Weatherford.
It is by no means clear that Weatherford would support respondent‘s position. Throughout the Weatherford opinion, the Supreme Court relied on factors which are significantly different from those in the present case:
Weatherford retained separate counsel from Bursey, while Officer Lee retained the same attorney as petitioners. - Weatherford attended the attorney-client conferences at the specific request of Bursey and for Bursey‘s sole benefit. Weatherford was not “instructed to intrude on the lawyer-client relationship” and had not “assumed for himself that task.” (Id., at p. 557 [51 L.Ed.2d at p. 41].) In this case, Officer Lee was instructed by his superiors to attend the attorney-client meetings. He was not specifically requested to attend by the defendants. His attendance was, ostensibly, as much for his personal benefit as for the benefit of the others.
- Weatherford communicated no information about the defense to his superiors. However, in the present case Officer Lee told his superiors that there was to be a “political” defense and that the defendants would attempt to postpone the trial.13
- In Weatherford, no “specific prejudice to the defendant‘s preparation for or conduct of trial [was] demonstrated or otherwise threatened.” (Id., at p. 550 [51 L.Ed.2d at p. 37].) In this case, there was evidence that since the disclosure of Lee‘s undercover role, petitioners had become reluctant to cooperate fully with their attorney.
Not only is Weatherford inapposite, it cannot be used as authority to justify the police action here since the right to privacy of communication between an accused and his attorney has consistently been grounded on California law. (Cf. ante, at pp. 752-753.) The first California case to expressly recognize that right was decided more than a decade before Powell v. Alabama (1932) 287 U.S. 45 [77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527] made the Sixth Amendment‘s right to counsel applicable to the states in capital cases. (Compare In re Rider (1920) 50 Cal.App. 797 [195 P. 965]; In re Snyder (1923) 62 Cal.App. 697 [217 P. 777].) Moreover, the decisions in this area since Powell have relied on California law and have not referred to the federal Constitution.14 (In re Jordan, supra, 7 Cal.3d 930; In re Qualls, supra, 58 Cal.App.2d 330.)
The right under California law to communicate privately with counsel was violated when a government agent in an undercover capacity was present at confidential attorney-client meetings.15
III
Next, this court must determine what relief should be given. Petitioners contend that an exclusionary remedy, such as the trial court applied in this case (cf. ante, at p. 750), is inadequate to protect their rights and will not deter the state from such unlawful intrusions in the future. This court agrees.
Whether or not the prosecution has directly gained any confidential information which may be subject to suppression, the prosecution in this case has been aided by its agent‘s conduct. Petitioners have been prejudiced in their ability to prepare their defense. They no longer feel they can freely, candidly, and with complete confidence discuss their case with their attorney. Petitioners’ attorney testified that the discovery of the undercover agent‘s true identity resulted in a refusal by his clients to offer suggestions or criticize any aspect of the conduct of the cases. Distrustful of each other and fearing that any one of them might also be an undercover police officer, the petitioners have even questioned the true identity of defense counsel‘s law student assistant. This lack of cooperation, which resulted solely from the intrusion by law enforcement officers in the attorney-client relationship, has resulted in counsel‘s inability to prepare adequately for trial. To allow these cases to proceed to trial under these circumstances would be contrary to basic notions of fair play and simple justice.
Even the blatant use of illegally obtained information will be difficult to prove. As Justice Marshall points out, “[p]roving that an informer reported to the prosecution on defense strategy will [seldom be possible], not only because such proof requires an informer or prosecutor to admit his own wrongdoing (and open the door to damage suits and attacks on convictions), but also because an informer‘s failure to make a report after overhearing a lawyer-client session oftentimes can be an effective means of communicating to the prosecutor that nothing surprising was uncovered.” (Id., at p. 565 [51 L.Ed.2d at p. 46].)16
Respondents rely for their exclusionary remedy on Wilson v. Superior Court (1977) 70 Cal.App.3d 751 [139 Cal.Rptr. 61]. In that case, police officers surreptitiously tape-recorded a conversation in jail between an inmate awaiting trial and his attorney. The Court of Appeal found this to be “an outrageous violation of [the accused‘s] most fundamental constitutional rights . . . [that] poses a potential threat to the rights of each of us.” (Id., at p. 758.) However, it held that the prosecution could continue if there remained “sufficient evidence to maintain a prosecution which is neither derived from nor tainted by the illegal intrusion into the attorney-client relationship. . . . The burden of such proof lies with the People. . . .” (Id., at p. 759.) The prosecutor would not be allowed to rebut any defense evidence nor cross-examine any defense witness “except to impeach them with appropriate prior felony convictions, knowledge of which the People would gain from their own files, unless the People, outside the presence of the jury, first demonstrate to the satisfaction of the trial court, beyond a reasonable doubt [citation], that the evidence they seek to adduce derives in no way from the tape.” (Id., at p. 760.)
The court in Wilson did not further explain its rationale for adopting an exclusionary rule, nor did it address any of the problems inherent in such a remedy. (Ante, at pp. 756-759.) Wilson is therefore unpersuasive on this issue.
An exclusionary remedy is not only ineffective as a deterrent, but the problems of proof inherent in the remedy when applied to violations of the right to counsel would be inadequate to assure that the prosecution does not benefit from the illegality.
IV
The intrusion, through trickery, of the law enforcement agent in the confidential attorney-client conferences of petitioners cannot be con-
Tobriner, J., Mosk, J., and Newman, J., concurred.
MANUEL, J., Concurring and Dissenting.—I agree that invasions of the defense camp, the intrusion by state agents into confidential attorney-client conferences, cannot be condoned. I disagree, however, with the conclusion of the majority that the only effective sanction is the dismissal of charges
Immunization of an accused from prosecution is an extraordinary remedy and has been reserved for the few cases where the state by its conduct has completely disabled itself in its ability to provide a fair trial. (See, for example, In re Newbern (1959) 175 Cal.App.2d 862 [1 Cal.Rptr. 80, 78 A.L.R.2d 901]; Eleazer v. Superior Court (1970) 1 Cal.3d 847 [83 Cal.Rptr. 586, 464 P.2d 42].) Absent jeopardy, violations of constitutional rights do not per se gain an accused immunity from punishment. (People v. Valenti (1957) 49 Cal.2d 199, 203 [316 P.2d 633]; see also People v. Hitch (1974) 12 Cal.3d 641, 653 [117 Cal.Rptr. 9, 527 P.2d 361].)1
The trial court here applied an exclusionary remedy, fashioned by the federal courts in cases involving breach of attorney-client confidentiality (O‘Brien v. United States (1966) 386 U.S. 345 [18 L.Ed.2d 94, 87 S.Ct. 1158]; Hoffa v. United States (1966) 385 U.S. 293, 307-308 [17 L.Ed.2d 374, 384-385, 87 S.Ct. 408]; Black v. United States (1966) 385 U.S. 26, 28-29 [17 L.Ed.2d 26, 28-29, 87 S.Ct. 190]) and followed in Wilson v. Superior Court (1977) 70 Cal.App.3d 751 [139 Cal.Rptr. 61], which involved a surreptitious taping of a conversation between an accused and counsel. It may develop that the exclusionary remedy will, in a particular case, make it impossible for the prosecution to proceed. The prosecution may not be able to prove beyond a reasonable doubt, in a particular case, that the tendered evidence is not the fruit of the unlawful intrusion into
Here we have charges stemming from a relatively simple and unambiguous factual situation. The charged misdemeanors are trespass and failure to disperse. The acts giving rise to the criminal charges were not conducted in conspiratorial secrecy. Newspaper advertisements invited public participation in the demonstration. The planning meetings were open and public, and it was well understood that the purpose of the demonstration was to affect the use of nuclear power to generate energy. In view of their stated purpose, the demonstrators understandably conducted their protest in the glare of the media. Thirty petitioners, with twenty other protestors and accompanied by seventy-five or one hundred news media people, crossed fences and entered an access road maintained by P.G. & E. to conduct a “sit-in” near the site of the Diablo Canyon facility. The charges resulted from these activities and the failure of some of the petitioners to disperse when instructed to do so by the sheriff‘s deputies who were waiting for them. We must assume, then, that 100-plus eyewitnesses will be available to establish or disprove the validity of the charges in what appears to me to be a straightforward trespass case.
I condemn the subsequent conduct of Undercover Agent Lee in posing as a suspect and gaining entry to the meetings and conferences with attorneys who were retained to defend petitioners, and I agree that fundamental constitutional rights were violated by Lee‘s presence. The question remains, however, whether the violation of petitioners’ rights, as outlined by the majority, requires that the People be barred from prosecuting the charges.
Following an extensive hearing on petitioners’ motion for dismissal, the trial court expressed outrage at Lee‘s presence at petitioners’ conferences with counsel, but was convinced that there had been no communication to the district attorney‘s office of any information that could be used to the benefit of the People or the detriment of petitioners. To protect petitioners’ interests, however, the trial court accepted the stipulation entered into by the parties which provided for exclusion of evidence or fruits of evidence directly or indirectly attributable to the agent‘s presence at the conferences. The court said: “The stipulation entered into between counsel on October 28th, 1977, will be the order of the court in any further proceedings in this regard, in that the People may
In my view the stipulation/order is sufficient to protect the petitioners’ right to a fair trial. The same remedy was proposed in Wilson v. Superior Court, supra, 70 Cal.App.3d 751, the only California case directly in point. A conversation between Wilson and his counsel had been illegally taped. The Court of Appeal held that the constitutional violation, however gross or shocking, did not justify automatic dismissal of the charges. The People were permitted to proceed to trial with the proviso that only the evidence from the preliminary hearing be used and permitting rebuttal evidence or impeachment of defense witnesses only if the People demonstrated beyond a reasonable doubt that the evidence they sought to adduce derived in no way from the tape. The court said at page 760: “In view . . . of defense counsel‘s testimony that the taped conversation with petitioner involved a discussion of defense strategy, we cannot permit the People to offer rebuttal to any evidence which may be introduced by the defense in petitioner‘s forthcoming trial, nor can the prosecutor be permitted to cross-examine defense witnesses, except to impeach them with appropriate prior felony convictions, knowledge of which the People would gain from their own files, unless the People, outside the presence of the jury, first demonstrate to the satisfaction of the trial court, beyond a reasonable doubt (Chapman v. California, supra), that the evidence they seek to adduce derives in no way from the tape. Unless the People can thus prove an independent and untainted source for their evidence, no court could be sure that the People were not aided in acquiring it by overhearing the conversation between petitioner and [counsel] unless that court further infringed petitioner‘s right to counsel by listening to the tape—a remedy which we cannot force upon petitioner as it would only compound the injustice which has already been perpetrated.”
In a similar vein here, Agent Lee‘s presence at meetings involving defense strategy will preclude the People from offering any evidence or cross-examining any defense witnesses unless the People can prove an independent and untainted source for their evidence. The People‘s case, as noted above, will undoubtedly consist of the testimony of persons drawn from the numerous eyewitnesses. I see no problems for the People
Thus, I do not agree with the majority that “enforcement of the exclusionary remedy would involve exceedingly difficult problems of proof for the aggrieved client.” Once it is determined that there has been an intrusion into the defense camp, the burden shifts to the prosecution to meet the difficult task of rehabilitating its evidence against the defendants. If the trial court is faced with “inability” to rule on the independent or untainted source of the People‘s evidence without knowing the substance of the illegal information, the trial court may simply rule that the People have not met their burden to prove an independent source beyond a reasonable doubt. The defendant cannot be compelled to reveal the information overheard by the intruding agent, for to do so “would only compound the injustice which has already been perpetrated.” (Wilson, supra, 70 Cal.App.3d 760.)
Fortunately, the cases are few that involve breach of the confidentiality of a defendant‘s relationship with counsel,2 and we therefore have little experience for assessment of the efficacy of the exclusionary remedy. The federal court experience gives us no reason to question its effectiveness.
Pretrial intervention is unwarranted. If the trial record later discloses any prejudice to petitioners, they will have recourse by appeal. I would discharge the alternative writ, deny the peremptory writ of prohibition, and permit the trial to proceed.
Richardson, J., concurred.
CLARK, J., Dissenting.—Participation of an undercover officer in attorney-client conferences was not under the circumstances of this case
The majority‘s attempt to distinguish Weatherford v. Bursey (1977) 429 U.S. 545 [51 L.Ed.2d 30, 97 S.Ct. 837] fails.
In that case, Weatherford, an undercover officer, joined Bursey in vandalizing a selective service office. To maintain his undercover status and his capability of working on other current matters in that capacity, Weatherford was arrested and charged along with Bursey. The two men retained separate counsel; however, on two occasions Bursey and his attorney invited Weatherford to confer with them so that they might obtain from him information, ideas or suggestions regarding Bursey‘s upcoming trial. Weatherford accepted these invitations but did not divulge to the prosecution any information regarding Bursey‘s trial plans or strategy. His identity as an undercover officer having become known shortly before trial, Weatherford was called by the prosecution and gave an eyewitness account of the crime. He did not, however, testify to anything said or done at the meetings he attended with Bursey and his attorney.
Following his conviction, Bursey sued Weatherford under 42 United States Code section 1983, alleging that Weatherford‘s participation in the two meetings had deprived him of the effective assistance of counsel in violation of the Sixth and Fourteenth Amendments as well as his right to a fair trial guaranteed by the due process clause of the Fourteenth Amendment. The district court found for Weatherford in all respects and entered judgment accordingly. The court of appeals, without disturbing the district court‘s factual findings, reversed, holding that ” ‘whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.’ ” (429 U.S. at p. 549 [51 L.Ed.2d at p. 36].) The judgment of the court of appeals was reversed by the high court.
Because the United States Supreme Court expressly rejected the court of appeals’ per se rule, it is important to recognize that the majority of this court today adopt the very rule repudiated by the high court. To reiterate, the court of appeals held that ” ‘whenever the prosecution knowingly arranges or permits intrusion into the attorney-client relation-
The United States Supreme Court refused to adopt a per se rule because “it would require the informant to refuse to participate in attorney-client meetings, even though invited, and thus for all practical purposes to unmask himself. Our cases, however, have recognized the unfortunate necessity of undercover work and the value it often is to effective law enforcement. [Citations.] We have also recognized the desirability and legality of continued secrecy even after arrest. [Citation.] We have no general oversight authority with respect to state police investigations. We may disapprove an investigatory practice only if it violates the Constitution; and judged in this light, the Court of Appeals’ per se rule cuts much too broadly. If, for example, Weatherford at Bursey‘s invitation had attended a meeting between Bursey and Wise [Bursey‘s attorney] but Wise had become suspicious and the conversation was confined to the weather or other harmless subjects, the Court of Appeals’ rule, literally read, would cloud Bursey‘s subsequent conviction, although there had been no constitutional violation. The same would have been true if Wise had merely asked whether Weatherford was an informant, Weatherford had denied it, and the meeting had then ended; likewise if the entire conversation had consisted of Wise‘s questions and Weatherford‘s answers about Weatherford‘s own defense plans. Also, and more cogently for present purposes, unless Weatherford communicated the substance of the Bursey-Wise conversations and thereby created at least a realistic possibility of injury to Bursey or benefit to the State, there can be no Sixth Amendment violation. Yet under the Court of Appeals’ rule Bursey‘s conviction would have been set aside on appeal.” (429 U.S. at pp. 557-558 [51 L.Ed.2d at p. 41].)
The appropriate standard for reviewing claims of this sort can be ascertained from the high court‘s following statement: “Had Weatherford testified at Bursey‘s trial as to the conversation between Bursey and Wise; had any of the State‘s evidence originated in these conversations; had those overheard conversations been used in any other way to the substantial detriment of Bursey; or even had the prosecution learned from Weatherford . . . the details of the Bursey-Wise conversations about trial preparations, Bursey would have a much stronger case.” (429 U.S. at p. 554 [51 L.Ed.2d at p. 39].) The absence of any of these elements led the high court to conclude Bursey‘s right to counsel had not been violated, and for the same reason there has been no violation here. Defense counsel conceded and the trial court expressly found that the prosecution has not heretofore learned anything from Officer Lee, either directly or indirectly, concerning defense tactics or strategy. Moreover, the parties stipulated that “the People may not use any evidence obtained by Mr. Lee or that was derived from his presence at any meetings between counsel, either previous counsel, present counsel or future counsel, if such be the case, nor the fruits thereof may not be used in evidence, and that they may not in rebuttal to any evidence put forth by the defendants, use any evidence whatsoever unless the prosecution can first prove beyond a reasonable doubt that such evidence was obtained independently of the activities of Mr. Lee.”
The majority seek to distinguish Weatherford on several grounds, the first being that Weatherford retained separate counsel and attended the conferences with Bursey and his attorney at their request. (Ante, p. 755.) However, the significant point is that Weatherford attended the attorney-client conferences, not to spy, but to maintain his undercover status so that he might continue to work on pending matters in that capacity. (429 U.S. at p. 557 [51 L.Ed.2d at p. 41].) This case is indistinguishable in that respect. Officer Lee and his superiors all testified that he had initially undertaken this undercover investigation to determine whether petitioners planned to commit acts of violence during their demonstration against the Pacific Gas and Electric Diablo Canyon nuclear power plant or had been infiltrated by groups, e.g., the New World Liberation Front, planning violence. They further testified the officer maintained his “cover” when arrested, not to obtain information regarding petitioners’ trial preparations, but to continue his investigation concerning future
Another purported distinction: “Weatherford communicated no information about the defense to his superiors. However, in the present case Officer Lee told his superiors that there was to be a ‘political’ defense and that the defendants would attempt to postpone the trial.” (Ante, p. 755.) This business of the “political defense” is a red herring. The important point is that the prosecution did not learn anything from Officer Lee, either directly or indirectly, concerning defense tactics or strategy. Petitioners’ counsel so conceded, and the trial court so found. Indeed, we know nothing about the so-called “political defense” other than that Officer Lee used this pejorative term to refer to what he perceived as petitioners’ delaying tactics, and that Officer Lee may have mentioned this matter to his immediate superior, Detective Doug Mansfield, in explaining why he (Lee) at one time felt he should disassociate himself from petitioners by entering a separate plea of nolo contendere. Detective Mansfield did not recall any such conversation. Mansfield testified, however, that he did not divulge to the prosecution anything he learned of Lee‘s conversations with defense counsel, and Lee testified he did not mention the matter of the “political defense” to anyone but Mansfield. Moreover, the majority‘s decision does not turn on this point. Had Lee said nothing to Mansfield concerning the “political defense,” indeed, had Lee himself never heard of the defense, the majority would still dismiss the charges against petitioners, for Lee‘s mere presence at the attorney-client conferences would trigger the per se rule announced today.
Finally, the majority seek to distinguish Weatherford on the ground Bursey‘s defense was not prejudiced, while there is evidence here that since the disclosure of Officer Lee‘s undercover role, petitioners have become reluctant to speak out at defense meetings, fearing that there may be other undisclosed undercover agents still among them. (Ante, pp. 749-750, 755.) This point need not long detain us, for even petitioners’ counsel labeled this alleged fear as “paranoia.” Moreover, as the People point out: “It is important to note that the instant case is still in the pretrial stage, and many options are therefore available. For example; the court could order that all undercover officers must be disclosed or removed. The heads of the local police agencies could be placed under oath and
In conclusion, this case is simply not distinguishable from Weatherford. Applying the criteria articulated in that case reveals that petitioners’ right to counsel has not been infringed. But, perhaps even more significantly, had there been a violation of the right to counsel in Weatherford, the high court, unlike the majority of this court, would not have invoked the remedy of outright dismissal of the charges. As the Court of Appeal recently observed in Wilson v. Superior Court (1977) 70 Cal.App.3d 751, 758 [139 Cal.Rptr. 61]: “Federal courts which have considered the issue have not required automatic dismissal of criminal charges when the confidentiality of a defendant‘s relationship with his attorney has been breached. Rather where the issue was raised on a post-conviction appeal it has been held that the conviction must be reversed and the cause remanded for a new trial at which the prosecution would not be permitted to make use of the illegally obtained evidence or its fruits. (O‘Brien v. United States, 386 U.S. 345 [18 L.Ed.2d 94, 87 S.Ct. 1158]; Hoffa v. United States, 385 U.S. 293, 307-308 [17 L.Ed.2d 374, 384-385, 87 S.Ct. 408]; Black v. United States, 385 U.S. 26, 28-29 [17 L.Ed.2d 26, 28-29, 87 S.Ct. 190]; Caldwell v. United States, 205 F.2d 879, 881; Coplon v. United States, 191 F.2d 749, 760 [89 App.D.C. 103].)”
Their failure to distinguish Weatherford appears to have been recognized by the majority for they ultimately shift ground from the federal to the California Constitution, as has been their practice recently. (See, e.g., People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P.2d 748]; People v. Hannon (1977) 19 Cal.3d 588 [138 Cal.Rptr. 885, 564 P.2d 1203]; Allen v. Superior Court (1976) 18 Cal.3d 520 [134 Cal.Rptr. 774, 557 P.2d 65]; People v. Maher (1976) 17 Cal.3d 196 [130 Cal.Rptr. 508, 550 P.2d 1044]; People v. Disbrow (1976) 16 Cal.3d 101 [127 Cal.Rptr. 360, 545 P.2d 272]; People v. Longwill (1975) 14 Cal.3d 943 [123 Cal.Rptr. 297, 538 P.2d 753]; People v. Norman (1975) 14 Cal.3d 929 [123 Cal.Rptr. 109, 538 P.2d 237]; Gee v. Brown (1975) 14 Cal.3d 571 [122 Cal.Rptr. 231, 536 P.2d 1017]; People v. Brisendine (1975) 13 Cal.3d 528 [119 Cal.Rptr. 315, 531 P.2d 1099].)
The writ should be denied.