PEOPLE v. PAOLI

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Leo PAOLI, Defendant and Appellant.

A020831.

Decided: March 25, 1985

Philip A. Sherman, Oakland, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Gloria F. DeHart, Linda Ludlow, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Appellant is an attorney at law who, in October of 1980, was acting as defense counsel for Debra Babb (hereafter sometimes Debra), a person charged with forgery (Pen.Code, § 470).   On October 16, 1980, Debra complained to the Tulare Police Department that appellant was making his best efforts as an attorney conditional upon her having sexual relations with him.

As part of the investigation of Debra's complaint, the police made tape recordings of telephone conversations between her and appellant on October 17, 23 and 24, 1980.   When these telephone conversations failed to substantiate Debra's claim, it was decided that she be equipped with a “body bug” which would be used to monitor and record face-to-face conversations between her and appellant.   The detective in charge of the investigation sought a verbal opinion from the Attorney General's office on the legality of using the body bug to record conversations between an attorney and client.   Eventually the Attorney General's office informed one of the Tulare detectives—upon what claim of authority or what legal precedent we are not told—that, in its opinion, an attorney suspected of criminality is stripped of the privacy protections set out in section 636.1  The body bug was then authorized.

Conversations between Paoli and Debra were monitored and recorded on October 27 and November 18 of 1980.   Both conversations took place in the public defender's office in the Tulare-Pixley Municipal Courthouse.

The recordings are far from definitively incriminating.   Indeed, given that Debra was now positively endeavoring to entice Paoli into offering her legal services in exchange for sexual relations, the latter's comments seem guarded.   At one point, in response to Debra's direct question whether her consenting to sexual relations would influence his efforts, appellant replied that he would “work hard anyway.”   He told her as well that, while he could make no guarantees, he would do his best to negotiate a misdemeanor plea to the forgery charge.   Later, he explained that he worked “extra hard” on certain cases for a variety of reasons, but at no time in any of such conversations did he say or imply that he would not use his best efforts in representing Debra unless she consented to sexual relations with him.   When she declined his offer of sexual relations, he responded:  “I assume the answer is no, you'll still know I'll still do my best for you.   I may not work extra hard, but I'll do the best I can for you.   O.K.?”

At the preliminary hearing, appellant characterized the conversations as jocose and flirtatious.   He testified that his hopes for sexual relations with Debra were “strictly on a person-to-person level, having nothing to do with my representation as a lawyer,” and added that he had never conditioned his performance as a lawyer upon “a personal relationship, or sex, or anything else,” but had in fact repeatedly told Debra that he would do his “best” for her “without reservation.”

After the superior court reversed a magistrate's order suppressing evidence of the tape-recorded conversations, appellant entered a negotiated plea of guilty to soliciting an act of prostitution (Pen.Code, § 647, subd. (b)).  On appeal, he challenges the superior court's ruling on the suppression motion.2

Appellant first contends that the recorded conversations are inadmissible under section 636, which, in pertinent part, makes it unlawful for any person “without permission from all parties to the conversation,” to record “by means of an electronic or other device, a conversation, or any portion thereof, between a person who ․ is on the property of a law enforcement agency or other public agency, and such person's attorney, ․”  Appellant submits that section 636 protects the in-person conversations he had with Debra Babb in the Tulare County Courthouse.

While acknowledging that the recorded conversations took place “on the property of a ․ public agency” within the meaning of the statute, and recognizing appellant's status as Debra Babb's attorney, the Attorney General argues that section 636 was intended for the protection of the client only, and does not apply to conversations which disclose criminal conduct on the part of the attorney.   The Attorney General also maintains that a violation of section 636 does not require suppression of unlawfully recorded conversations.

We are called upon to construe and apply section 636.   In our effort, settled maxims of interpretation will provide useful guidance.

 The fundamental goal of statutory construction is to discern the intent of the Legislature in order to effectuate the purpose of the law.  (People v. Black (1982) 32 Cal.3d 1, 5, 184 Cal.Rptr. 454, 648 P.2d 104.)   To ascertain legislative intent, “ ‘[t]he court turns first to the words themselves for an answer.’ ”  (Ibid., see also Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764, 150 Cal.Rptr. 785, 587 P.2d 227;  People v. Brown (1980) 110 Cal.App.3d 24, 39, 167 Cal.Rptr. 557.)   Unless it is demonstrated that “the natural and customary import of the statute's language is either ‘repugnant to the general purview of the act,’ or for some other compelling reason, should be disregarded, this court must give effect to the statute's ‘plain meaning.’ ”  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218–219, 188 Cal.Rptr. 115, 655 P.2d 317.)

 Section 636 defines in clearest terms the conversations it protects, forbidding the recording of the conversation of a person who is on the property of a public agency “and such person's attorney.”   Only the “permission from all parties to the conversation” (emphasis added) justifies the use of electronic devices to intrude upon and record such communications.   The section thus seems to be very broad in scope, providing an absolute right of privacy in such conversations to both attorney and client.

 As for the policy underlying the statute, we note that it is part of the state's Invasion of Privacy Act (§§ 631–637.2;  People v. Suite (1980) 101 Cal.App.3d 680, 685, 161 Cal.Rptr. 825), the primary purpose of which, as reflected in its preamble (found in section 630), is “to protect the right of privacy of the people of this state.” 3  (People v. Conklin (1974) 12 Cal.3d 259, 270, 114 Cal.Rptr. 241, 522 P.2d 1049;  Warden v. Kahn (1979) 99 Cal.App.3d 805, 810, 160 Cal.Rptr. 471.)   Section 630 notes that “the invasion of privacy resulting from the continual and increasing use of [new devices and techniques for the purpose of eavesdropping upon private communications] has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.” 4

The Attorney General takes the position that appellant's privacy rights were not violated, arguing, inter alia, that appellant had no reasonable expectation of privacy from electronic surveillance in his conversation with Debra Babb, with her consent, under either the federal or state constitutions or the statutory attorney-client privilege.

 It is true that there is no reasonable and constitutionally protected expectation under the Fourth Amendment to the United States Constitution, or the search and seizure (art. I, § 13) or privacy (art. I, § 1) clauses of the California Constitution, that a party with whom one is conversing will not consent to electronic recording of the conversation by law enforcement officials.  (United States v. White (1970) 401 U.S. 745, 752–753, 91 S.Ct. 1122, 1126–1127, 28 L.Ed.2d 453;  People v. Murphy (1972) 8 Cal.3d 349, 358–360, 105 Cal.Rptr. 138, 503 P.2d 594;  People v. Cooks (1983) 141 Cal.App.3d 224, 274, fn. 44, 190 Cal.Rptr. 211.)   We agree, therefore, that appellant cannot claim a violation of the constitutional rights just discussed, as Debra Babb consented to the recording.   Nor can he successfully claim that the attorney-client privilege protects the conversations, since the “client,” and not the attorney, is the holder of the privilege and alone may waive it.  (Evid.Code, § 953, subd. (a) and 954, subd. (a);  Benge v. Superior Court (1982) 131 Cal.App.3d 336, 344–345, 182 Cal.Rptr. 275.)

Having thus refuted appellant's claim that his general constitutional rights of privacy and the shield of the attorney-client privilege forbade the recordings, the Attorney General goes on to argue that section 636 is not the source of a separate right of privacy under the instant circumstances, particularly in light of the limitation in section 630 that “it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter.”

 The palpable flaw in this argument is that the separate and additional protections afforded California citizens by section 636 all existed in precisely the same terms before enactment of the California Invasion of Privacy Act, and were found in former Penal Code section 653i.5  Section 636, in fact, was adopted without change from the repealed section 653i (Cal.Cont.Ed.Bar, Review of Selected 1967 Code Legislation).   And as it presently reads, section 636 unequivocally grants to both attorneys and their clients a specific statutory right of privacy from electronic surveillance on public premises.

California law has always particularly safeguarded attorney-client communications.   In Barber v. Municipal Court (1979) 24 Cal.3d 742, 752, 157 Cal.Rptr. 658, 598 P.2d 818, our high court, citing section 636, noted:  “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.”   And despite the legion of cases which have held that arrestees and prisoners have no reasonable expectation of privacy from electronic intrusion upon their conversations (People v. Crowson (1983) 33 Cal.3d 623, 629–630, 190 Cal.Rptr. 165, 660 P.2d 389;  People v. Williams (1982) 128 Cal.App.3d 981, 987, 180 Cal.Rptr. 734;  People v. Estrada (1979) 93 Cal.App.3d 76, 99, 155 Cal.Rptr. 731),6 an exception has always been recognized for communications between attorney and client.  (See People v. Towler (1982) 31 Cal.3d 105, 122, 181 Cal.Rptr. 391, 641 P.2d 1253;  People v. Jones (1971) 19 Cal.App.3d 437, 449, 96 Cal.Rptr. 795.)

 While the primary intended beneficiary of such privileges and privacy rights is no doubt the client, the statutory language unmistakably extends to the attorney as well.   Thus, the section requires, on pain of felony, “permission from all parties to the conversation” (emphasis added) before an attorney-client conversation in a public office may be recorded.   Such language clearly enables the attorney, by withholding consent, to prevent recordation of his conversation with a client.   In our opinion, by logical extension, the section is also violated if the attorney's consent is never requested and the electronic surveillance performed surreptitiously.

The public policy reasons underlying this law are not difficult to conceive.   As we have said, a paramount purpose of section 636 is to protect the client from the profound invasion of privacy resulting from unsanctioned electronic recording of conversations with counsel in the courthouse.   Such protection of course furthers the salutary purpose of the attorney-client privilege, which is “to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”  (Upjohn Co. v. United States (1981) 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584.)   But clients' interests will also be compromised by the threat of clandestine electronic surveillance, triggered perhaps by flimsy pretext, which might deter counsel from full and frank discussion with clients.

In our broad interpretation of section 636, and our conclusion that its protections extend to attorney as well as client, we find particularly persuasive the recent decision of the Court of Appeal in Warden v. Kahn, supra, 99 Cal.App.3d 805, 160 Cal.Rptr. 471, construing section 632, which, while not dealing specifically with the attorney-client privilege, forbids electronic eavesdropping or recording of “confidential communications” unless, as in section 636, the consent of all parties is obtained.   As we there declared, the language of section 632 “has uniformly been construed to prohibit one party to a confidential communication from recording that communication without the knowledge or consent of the other party.”  (Id., at p. 812, 160 Cal.Rptr. 471;  People v. Wyrick (1978) 77 Cal.App.3d 903, 909, 144 Cal.Rptr. 38;  Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 133 Cal.Rptr. 573.)   We further observed that the protections afforded by section 632 are broader than the attorney-client privilege, and thus exist for the benefit of the attorney, even though there would not otherwise be a reasonable expectation of privacy from electronic monitoring of a conversation with the consent of the client or other party to the communication.7  (Warden v. Kahn, supra, 99 Cal.App.3d 805, at pp. 813–814, 160 Cal.Rptr. 471;  see also Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188, 192, 133 Cal.Rptr. 573.)

And while—again—Warden did not deal with section 636, the court was there called upon to interpret precisely equivalent language in another section of the same Act, and decided, in accordance with the plain meaning of the phrase “consent of all parties,” that an attorney conversing with a client is protected from unauthorized electronic surveillance.   We find no reason to interpret section 636 in a different manner.

 Section 633.5 8 specifically excepts from the coverage of sections 631 and 632 (confidential communications) any recordings made “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication” of certain enumerated crimes, including bribery.9  The protections afforded by section 636 are not so limited.   We are therefore led almost inescapably to the conclusion, as a matter of statutory construction, that the Legislature's omission to extend the same criminal investigation exception to conversations protected by section 636 was intentional, reflecting the higher interest in protecting the sanctity of the attorney-client privilege.

 For these reasons we have concluded that the conversations between appellant and Debra Babb were illegally recorded in contravention of section 636.10

 A second, separate basis for finding that Paoli's rights were violated is found in both state and federal Constitutions.   The Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution guarantee criminal defendants the right to be represented by effective and competent counsel at all stages of adversary proceedings.  (People v. McKenzie (1983) 34 Cal.3d 616, 626, 194 Cal.Rptr. 462, 668 P.2d 769;  People v. Quirk (1982) 129 Cal.App.3d 618, 634–635, 181 Cal.Rptr. 301.)   The right to counsel is “ ‘among the most sacred and sensitive of our civil rights' ” (People v. Holland (1978) 23 Cal.3d 77, 86, 151 Cal.Rptr. 625, 588 P.2d 765), which is carefully safeguarded by the courts.  (In re Brindle (1979) 91 Cal.App.3d 660, 680, 154 Cal.Rptr. 563;  People v. Locklar (1978) 84 Cal.App.3d 224, 228, 148 Cal.Rptr. 322.)   So important is loyal and vigorous representation by defense counsel that neither a conflict of interest nor any infringement upon the confidentiality of the attorney-client relationship can be tolerated.  (Keenan v. Superior Court (1982) 31 Cal.3d 424, 430–431, 180 Cal.Rptr. 489, 640 P.2d 108;  Maxwell v. Superior Court (1982) 30 Cal.3d 606, 612, 180 Cal.Rptr. 177, 639 P.2d 248;  People v. Rhodes (1974) 12 Cal.3d 180, 184, 115 Cal.Rptr. 235, 424 P.2d 363;  In re Darr (1983) 143 Cal.App.3d 500, 511, 191 Cal.Rptr. 882.)   There must exist a bond of trust and confidence between attorney and client, fostered by full and frank disclosure.  (Upjohn v. United States, supra, 449 U.S. 383, 389, 101 S.Ct. 677, 682, 66 L.Ed.2d 584;  Trammel v. United States (1980) 445 U.S. 40, 51, 100 S.Ct. 906, 912, 63 L.Ed.2d 186;  Brown v. Craven (9th Cir.1970) 424 F.2d 1166, 1170.)  “[I]f an accused is to derive the full benefits of his right to counsel, he must have the assurance of confidentiality and privacy of communication with his attorney.”  (Barber v. Municipal Court, supra, 24 Cal.3d 742, 751, 157 Cal.Rptr. 658, 598 P.2d 818.)

No great gifts of prophecy are needed to predict the chilling effect upon the right to the assistance of counsel which would follow upon removal of the protection against unauthorized electronic surveillance.   The spectre of clandestine recording of courthouse conversations would obviously inhibit discussion of case theories, trial tactics and strategies.   In our view, therefore, the extension of a separate privacy right to an attorney in his conversation with clients on public premises promotes the further rational purpose of safeguarding state and federal constitutional guarantees of the right to competent counsel.

 It remains for us to decide whether the statutory violation requires sanctions.   Section 636 does not mandate suppression;  it merely provides that any person who violates the statute is “guilty of a felony.” 11  The Attorney General contends that the statutory penalty is deterrence enough.12  Appellant argues that section 636 creates a right of privacy which is of constitutional dimension, hence requiring suppression of the illegally gathered evidence.

 Section 351 of our Evidence Code provides that:  “Except as otherwise provided by statute, all relevant evidence is admissible.”  (See also People v. Perkins (1981) 126 Cal.App.3d Supp. 12, 19, 179 Cal.Rptr. 431;  People v. Adams (1976) 59 Cal.App.3d 559, 565, 131 Cal.Rptr. 190.)   Given this seminal rule of evidence, it is established that in a criminal proceeding “suppression of evidence is required only when such evidence has been obtained as a result of deprivation of constitutional rights, transgression of statutes embodying constitutional standards or where specifically required by statute.”  (Armenta v. Superior Court (1976) 61 Cal.App.3d 584, 594, 132 Cal.Rptr. 586;  see also People v. French (1978) 77 Cal.App.3d 511, 522, 143 Cal.Rptr. 782;  People v. Adams, supra, 59 Cal.App.3d at p. 566, 131 Cal.Rptr. 190;  People v. Rawlings (1974) 42 Cal.App.3d 952, 956, 117 Cal.Rptr. 651.)   Absent explicit statutory provision for exclusion, evidence obtained in contravention of the law is admissible “unless the statutory violation also has a constitutional dimension.”  (People v. Brannon (1973) 32 Cal.App.3d 971, 975, 108 Cal.Rptr. 620;  People v. French, supra, 77 Cal.App.3d at p. 522, 143 Cal.Rptr. 782;  People v. Adams, supra, 59 Cal.App.3d at p. 566, 131 Cal.Rptr. 190.)

 We consider the privacy rights afforded by section 636 akin to the constitutional protections embodied in the First and Fourth Amendments of the United States Constitution and article I, sections 1 and 13 of the California Constitution and essential to the constitutional right to the effective assistance of counsel as earlier discussed.

 The preamble to the Invasion of Privacy Act, in section 630, says as much in its condemnation of the “serious threat to the free exercise of personal liberties” created by electronic surveillance techniques, and its explicit purpose to “protect the right of privacy of the people of this state.”   Use of electronic devices to intrude upon the attorney-client relationship has been perceived as a violation of “fundamental constitutional rights.”  (Wilson v. Superior Court (1977) 70 Cal.App.3d 751, 758, 139 Cal.Rptr. 61.)   Accordingly, while section 636 does not expressly make inadmissible evidence obtained in violation of its proscriptions, we conclude that the transgression of rights which we have found to be of constitutional magnitude requires imposition of strict sanctions.  (Wilson, supra;  People v. Jones (1973) 30 Cal.App.3d 852, 854, 106 Cal.Rptr. 749.)   We find that the trial court erred in ruling otherwise.

 For that reason suppression would be an appropriate sanction, although, as will hereafter appear, it is in our view inadequate under the peculiar circumstances of the present case.   Given the gravity of the subject intrusion into an unusually sensitive and hence constitutionally and legislatively protected area of privacy, particularly by those charged with upholding the law, we conclude that dismissal of the charges—threadbare as they are—is the only condign sanction.   This is so because we deem it desirable in a free society that no benefit, direct or indirect, be derived from such illegal conduct.

The judgment is reversed and the matter is remanded with instructions to set aside the guilty plea and dismiss the underlying charges.  (Cf. Barber v. Municipal Court (1979) 24 Cal.3d 742, 759–760, 157 Cal.Rptr. 658, 598 P.2d 818;  People v. Moore (1976) 57 Cal.App.3d 437, 129 Cal.Rptr. 279.)

FOOTNOTES

1.   Section 636 provides:Every person, who, without permission from all parties to the conversation, eavesdrops on or records by means of an electronic or other device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and such person's attorney, religious advisor, or licensed physician, is guilty of a felony;  provided, however, the provisions of this section shall not apply to any employee of a public utility engaged in the business of providing service and facilities for telephone or telegraph communications while engaged in the construction, maintenance, conduct or operation of the service or facilities of such public utility who listens in to such conversations for the limited purpose of testing or servicing such equipment.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

3.   Section 630 reads:The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.The Legislature by this chapter intends to protect the right of privacy of the people of this state.The Legislature recognizes that law enforcement agencies have a legitimate need to employ modern listening devices and techniques in the investigation of criminal conduct and the apprehension of lawbreakers.   Therefore, it is not the intent of the Legislature to place greater restraints on the use of listening devices and techniques by law enforcement agencies than existed prior to the effective date of this chapter.

4.   See also Burrows v. Superior Court (1974) 13 Cal.3d 238, 248, 118 Cal.Rptr. 166, 529 P.2d 590.)

5.   Section 635i read:“Every person who, without permission from all parties to the conversation, eavesdrops on or records, by means of an electronic or other device, a conversation, or any portion thereof, between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and such person's attorney, religious advisor, or licensed physician, is guilty of a felony;  provided, however, the provisions of this section shall not apply to any employee of a public utility engaged in the business of providing service and facilities for telephone or telegraph communications while engaged in the construction, maintenance, conduct or operation of the service or facilities of such public utility who listens in to such conversation for the limited purpose of testing or servicing such equipment.”

6.   But see the recent decision in De Lancie v. Superior Court (1982) 31 Cal.3d 865, 183 Cal.Rptr. 866, 647 P.2d 142, where the California Supreme Court, relying on sections 2600 and 2601, ruled that the statutory right to privacy in prisons and jails may not be abridged except to provide for the reasonable security of the institution and for the reasonable protection of the public.

7.   The court explained:  “That one of the parties to the conversation is a client of the other, and ‘owns' a privilege which he may waive by testifying as to the contents of the conversation may well be part of the ‘circumstances' to be considered [in determining whether the conversation is ‘confidential within the meaning of section 632’], but it is hardly determinative of the statutory issue.”  (Warden v. Kahn, supra, at p. 815, 160 Cal.Rptr. 471.)

8.   Section 633.5 provides:Nothing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person or a violation of Section 653m, and nothing in Section 631 or 632 shall be construed as rendering inadmissible in a prosecution for extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m, or any crime in connection therewith, any evidence so obtained.

9.   Bribery is charged in the present case.   We express bafflement as to the basis for this charge, as well as some mystification concerning the charge of prostitution.

10.   This conclusion renders unnecessary our consideration of the contention that the Tulare Police Department lacked probable cause to conduct the electronic surveillance.

11.   In addition, section 637.2 establishes a private cause of action on behalf of “[a]ny person who has been injured by a violation of this chapter ․ against the person who committed the violation ․”   We add that felony charges against the offending law enforcement officials would certainly have been warranted.

12.   It has not been, as the present case demonstrates.

NEWSOM, Associate Justice.

RACANELLI, P.J., and ELKINGTON, J., concur.