People v. Super. Ct. (Cortez)

Filed 1/12/23 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, No. H049188 (Santa Cruz Petitioner, Super. Ct. No. 19CR06615)

v.

THE SUPERIOR COURT OF SANTA CRUZ COUNTY,

Respondent;

JASON JOEL CORTEZ,

Real Party in Interest.

We must decide in this case whether a suspected inmate “kite”—a written message sent in violation of jail rules—is covered by the attorney-client privilege when it is contained in an envelope sent by an inmate to his attorney. We conclude that because the inmate here did not establish the kites are a confidential communication to his attorney, the attorney-client privilege does not apply. We will therefore issue a peremptory writ of mandate requiring the Superior Court to vacate its order finding otherwise. I. BACKGROUND Real party in interest Jason Joel Cortez is an inmate at the Santa Cruz County Jail, awaiting trial on charges he committed murder in the jail for the benefit of a criminal street gang. The District Attorney alleges that while detained on another matter, Cortez and a codefendant fatally strangled their cellmate, German Carrillo. We take the following from the record of proceedings in connection with a defense motion to prevent disclosure of “kites” Cortez attempted to mail from jail to his

attorney. According to pleadings filed in opposition to an in camera examination of the writings at issue, a kite is a clandestine note usually written on a small piece of paper in very small print and used by an inmate to communicate with another person either inside or outside of the jail. Testimony in the record describes that kites are rolled up and often wrapped in plastic to minimize their size and to facilitate concealment in an inmate’s clothing, mouth or rectum. Kites present a jail security risk because inmates may use them to communicate about smuggling contraband or to plan assaults on other inmates. About a month before the preliminary hearing in the murder case, a correctional officer at the jail intercepted what he believed to be kites in outgoing mail sent by Cortez. The officer testified that jail personnel routinely search outgoing inmate mail for contraband. Mail from an inmate to an attorney is also searched, but a special procedure is used to preserve confidentiality. The legal mail is opened in front of the inmate who sent it; the envelope’s contents are visually inspected but any written communication is not read. Here, the correctional officer described that he was inspecting outgoing mail when he encountered an envelope from Cortez addressed to his attorney. As soon as the officer touched the envelope he noticed it was “a little heavier towards the center” with a “bulk in the center” of it. It smelled of feces, which indicated to the officer that it did not contain regular mail. Suspecting the envelope contained contraband, he opened it to see what was inside. He did not do so in front of Cortez because he did not believe the envelope actually contained legal mail. When the officer opened the envelope, he found another envelope fashioned from the lined yellow paper sold at the jail commissary. The fecal odor was noticeably stronger. On the yellow envelope was written “do not read.” The officer opened it and found what appeared to be multiple kites. Each kite was made from differently colored paper and each had different writing, leading the officer to believe they were written by different people. The handwriting on the kites was not the same as the writing on the envelope. The officer found another envelope from Cortez addressed to his attorney and 2