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Name: People v. Gray
Case #: C062668
Court: CA Court of Appeal
District 3 DCA
Opinion Date: 04/28/2011

A defendant who brings presumptively privileged attorney-client communications to the witness stand and uses them to refresh his memory while testifying, waives the attorney-client privilege. Appellant was charged with and convicted of various criminal offenses related to his harassment of his estranged wife, including stalking and penetration with a foreign object, with an enhancement that he used a controlled substance to effect the penetration found true. During his trial testimony, appellant referred to notes he took with him to the witness stand to refresh his memory. He claimed the notes were attorney-client communications. In a contested hearing outside the presence of the jury, the trial court ruled that pursuant to Evidence Code section 771, the prosecuting attorney had a right to review the communications. Evidence Code section 954 provides that a client has a right to refuse to disclose communications between the client and his lawyer, subject to Evidence Code section 912, which hold that disclosure of the communication results in waiver of the privilege. Evidence Code section 771 holds that if a witness, while testifying, uses a writing to refresh his memory, the writing must be produced if the adverse party requests it. The appellate court affirmed, finding that by using the notes to refresh his memory, appellant waived any attorney-client privilege that may have existed as to the notes.
Appellant also argued that the enhancement must be stricken because the prosecution failed to produce evidence that the substance in question, Ambien, was a controlled substance. The appellate court found that the issue was not as argued by appellant but, instead, was whether the trial court gave an erroneous instruction that conclusively presumed Ambien to be a controlled substance, so as to remove the issue from the jury’s consideration. It found the error to be harmless as appellant essentially conceded or admitted the element. At trial, he did not dispute that Ambien was a controlled substance and both attorneys argued that it was. Finally, the appellate court took judicial notice that Ambien contained an ingredient making it a controlled substance within the provisions of the enhancement.