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Name: People v. Superior Court (Cortez)
Case #: H049188
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 01/12/2023

Inmate “kites” in an envelope addressed to defendant’s attorney were not covered by the attorney-client privilege because they were not confidential communication to the attorney for the purpose of seeking legal advice. Cortez is an inmate in jail awaiting trial on murder charges. A correctional officer inspecting outgoing mail encountered an envelope from Cortez addressed to Cortez’s attorney. The envelope was bulkier in the middle and smelled of feces. The officer opened it and found multiple kites on different colored paper with different handwriting. A “kite” is a clandestine note, usually written on a small piece of paper by an inmate to communicate with others; kites are not permitted by jails. Over objection, the magistrate in the murder trial examined the documents in camera to determine whether they should be disclosed to the prosecution. Based on the varied handwriting and the “to” and “from” lines, the magistrate determined that they had not been written by Cortez to his attorney and ordered them produced. Cortez petitioned the superior court for a writ of mandate, and the court ordered the documents protected by attorney-client privilege. The District Attorney petitioned the Court of Appeal for a writ of mandate vacating the decision. Held: Petition granted. The party claiming attorney-client privilege must establish the information is a confidential communication made in the course of an attorney-client relationship. The attorney-client privilege only protects communications between attorney and client made for the purpose of seeking legal advice or representation. Putting something in an envelope addressed to an attorney does not automatically render the item privileged. Whether a document is a confidential communication to an attorney is governed by the nature of the document not merely its container. Here, given the correctional officer’s testimony, the magistrate properly examined the documents in camera. Substantial evidence then supported the magistrate’s finding that the materials were not confidential communications from Cortez to his attorney, and the privilege did not apply. [Editor’s Note: Whether the jail violated any statute or regulation by opening the envelope outside Cortez’s presence would only be relevant if the documents were confidential attorney-client communications and a waiver of the privilege was being claimed.]