PEOPLE of the State of California, Plaintiff and Respondent, v. Corinthians CANFIELD, Defendant and Appellant.
Defendant appeals from judgment of the Santa Clara County Superior Court convicting him, after jury verdict, of violating section 10851 of the Vehicle Code (unlawful driving or taking of a vehicle).
The communication to the public defender under section 27707 of the Government Code is not a confidential communication within the protection of the attorney-client privilege.
Defendant was charged in an information with Count 1, violation of section 10851 of the Vehicle Code (unlawful driving or taking of a vehicle), and Count 2, violation of section 496 of the Penal Code (receiving stolen property). The jury found him guilty of Count 1 and not guilty of Count 2. Inasmuch as no contention is made that the evidence did not support the judgment and only one contention of error is made, a brief preliminary statement of the evidence is all that is required.
Joan Petroni parked her Buick automobile on the afternoon of October 6, 1971, in front of her home in San Jose. The next morning it was gone. That morning a Highway Patrol officer at Los Banos saw two automobiles racing each other at approximately 100 miles per hour. He signaled the cars to stop. One of the vehicles, which proved to be Ms. Petroni's Buick, sped away. The officer pursued it, going at about 110 miles per hour. The Buick ended up in the Mendota Canal. The officer pulled its driver, defendant, from the canal. The car had been ‘hot wired.’ Defendant gave the officer a story about buying the car from one Levicks.
At the trial defendant testified that he had been informed that if he went to Mickey's Blue Room, he could meet Levicks, who had a car for sale. Defendant claimed that the night before he had won between $900 and $1,200 at Mickey's and had taken $500 with him to Mickey's. He claimed to have paid Levicks $1,300 in cash for the Buick. He then went to his girlfriend's home, where he left $600. His version of the events occurring while driving on the highway substantially agreed with that of the officer.
On cross-examination defendant stated that from May through October 1971 he had won approximately $75,000. Over objection, the prosecutor was permitted to impeach this testimony and defendant's claim that he had sufficient funds from which to purchase the Buick, by use of the financial statement executed by defendant pursuant to section 27707 of the Government Code, and given to the public defender to determine that he was financially unable to retain counsel, and in which he claimed that he did not have sufficient funds available to retain an attorney.
The financial communication is not privileged.
Defendant argues that the use of the financial statement executed pursuant to section 27707 of the Government Code in order to determine eligibility for services rendered by the public defender falls within the ambit of the attorney-client privilege, and that to hold otherwise would deny indigents equal protection of the law.1
Section 954 of the Evidence Code provides, in pertinent part, that a client ‘has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer . . ..’
‘To successfully invoke the lawyer-client privilege, three requirements must be met. There must be a (1) communication, (2) intended to be confidential, and (3) made in the course of the lawyer-client relationship.’ (Sullivan v. Superior Court (1972) 29 Cal.App.3d 64, 69, 105 Cal.Rptr. 241, 244.) The first issue to be resolved in the case at bench is, at the time the legal aid assistant interviewed appellant regarding his financial status, did a lawyer-client relationship exist? Section 951 of the Evidence Code provides that an attorney-client relationship is created for the application of the attorney-client privilege if a client consults a lawyer for the purpose of retaining the lawyer in his professional capacity. Case law has long applied this rule, holding that when a person consults an attorney for the purpose of employing him professionally, any information obtained by the attorney during the course of an interview or negotiations is privileged and cannot be disclosed, even though the attorney refuses to accept employment. (Maier v. Noonan (1959) 174 Cal.App.2d 260, 266, 344 P.2d 373; People v. Abair (1951) 102 Cal.App.2d 765, 771, 228 P.2d 336; People v. Dorrance (1944) 65 Cal.App.2d 125, 129, 150 P.2d 10; Estate of Dupont (1943) 60 Cal.App.2d 276, 288, 140 P.2d 866.)
If the privilege existed in the instant case, it would not be destroyed because the information for the financial statement was given to a legal aid assistant working for the public defender's office, instead of directly to a public defender. Under section 952 of the Evidence Code, confidential communications include those made to third parties for the purpose of transmitting such information to the lawyer.
Section 917 of the Evidence Code provides: ‘Whenever a privilege is claimed on the ground that the matter sought to be disclosed is a communication made in confidence in the course of the lawyer-client . . . relationship, the communication is presumed to have been made in confidence and the opponent of the claim of privilege has the burden of proof to establish that the communication was not confidential.’ The communication must be made in confidence regarding information relevant to the purpose of the consultation, i. e., the communication must concern matters that relate to the purpose of creating the attorney-client relationship. (See Attorney-Client Privilege as Affected by Communications Between Several Attorneys (1966) 9 A.L.R.3d 1420, 1422.) ‘[A] client's personal or real property is not considered private or confidential in nature . . ..’ (Jefferson, California Evidence Benchbook (1972) § 40.1, p. 678.) This analysis holds true for indigents as well as for a person who has retained private counsel and there is thus no denial of equal protection of the law for indigents.
This conclusion does not defeat the purpose behind the attorney-client privilege of full disclosure of all relevant facts necessary for litigation of an action. If a client sought legal advice regarding his financial status (i. e., tax matters), of course information regarding his property should be considered a confidential communication. But in the instant case, where information regarding a person's financial condition is just a preliminary fact to be used to determine if he is eligible to be represented by the public defender's office, it is not a communication that concerns matters that relate to the purpose for which the attorney-client relationship was created. Particularly is this so of a matter which is a public record.
Of significance is the fact that the financial statement is a preliminary administrative act required by statute and must be disclosed to the court should any question ever arise as to a person's qualification for public assistance, and which, if the statement is false, could cause the maker's conviction of perjury. Under sections 27706 and 27707 of the Government Code, the court has the right to make the final determination whether a person qualifies for services of the public defender.
Prior to the enactment in 1969 of section 27707 of the Government Code, the determination by the public defender that a defendant was indigent was final so far as judicial review was concerned. It was ‘subject to appropriate review through the political process.’ (Ingram v. Justice Court (1968) 69 Cal.2d 832, 842, 73 Cal.Rptr. 410, 415, 447 P.2d 650, 655.) Thus the defendant's financial statement was a matter of public record and open to examination. The enactment of section 27707 did not change this situation but added an additional tribunal which could examine that record, namely, the court. Such situations are not compatible with the statement coming into the category of a confidential communication between client and attorney.
Furthermore, even if the financial statement were regarded as a confidential communication within the ambit of the attorney-client privilege, its introduction into evidence was harmless error. This is true if the constitutional error test is applied under Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.E.2d 705 (the error beyond a reasonable doubt did not contribute to the verdict), or if the nonconstitutional error test is applied under People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 (it is not probable that a result more favorable would have been reached if the error had not been made).2 Defendant testified that he had won the money from which he purchased the car gambling. Although he stated he had won approximately $75,000 gambling during a five-month period, he also stated that he lost approximately this same amount. Defendant gave two different versions of how he obtained the car. He told Officer Arnold that he had seen the vehicle advertised in a newspaper, and on October 6, in a bar in East Palo Alto, had paid a Mr. ‘Levitts' $1,500 cash for it. At the trial he testified that he had ‘lied’ to Officer Arnold about buying the car after seeing an ad and after calling Levicks on the telephone. He testified that he had let it be known that he wanted to purchase a car, and that as a result, a friend arranged for him to meet a John Levicks at the bar. There was no registration, pink slip or even trunk key. Theses the seller told him would be mailed to him from Texas. He further testified that although when he bought the car there was a key in the ignition, he had never turned the engine off from the time he acquired the car until it was wrecked (some 5 1/2 hours) because if he used the key and turned the engine off, its ‘weak battery’ would fail to start it again. He said that as the car was sinking into the canal he grabbed the key out of the ignition, put it in his pocket and swam to shore. He claimed that at the jail he discovered the key was in his pocket and gave it to an officer whose identity he could not recall.
Given defendant's fantastic and contradictory stories, the fact that the car was ‘hot wired,’ that defendant tried to outrun the officer's car, and the other circumstances of the case indicating that if he did not steal the car he knew that it was a stolen car, it is difficult to find any case more conclusive of a defendant's guilt. Even if the financial statement had not been used, the evidence of guilt would have been overwhelming.
1. Section 27707 of the Government Code provides in pertinent part that the public defender shall render legal services ‘for any person the public defender determines is not financially able to employ counsel until such time as a contrary determination is made by the court. . . . In order to assist the court or public defender in making the determination, the court or the public defender may require a defendant or person requesting services of the public defender to file a financial statement under penalty of perjury.’
2. It should be noted that the legal aid who, on behalf of the public defender, took defendant's financial statement, apparently tried to alleviate its effect. He testified that defendant had not understood the purpose or the gravity of the questioning, or the nature of the statement as an affidavit made under oath and had not read it before signing.
BRAY,* Associate Justice. FN* Retired Presiding Justice of the Court of Appeal sitting under appointment of the Chairman of the Judicial Council.
TAYLOR, P. J., and KANE, J., concur.