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Name: People v. Hunter
Case #: G051942
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 09/11/2017

Defendant is not entitled to obtain a codefendant’s discovery unless it is required to assure a fair trial. Hunter, Paschall, Brown, Avery, and three others committed a jewelry store robbery during which the shopkeeper and a store employee shot and killed Brown and Avery. Hunter and Paschall were convicted of the first degree murder of Brown under the provocative act doctrine. On appeal, defendants challenged the trial court’s upholding of a codefendant attorney’s claim of work-product privilege of an interview he had with one of the shopkeepers, which may have showed that Brown was solely responsible for his own death. The codefendant (Clark, Sr.) had pleaded guilty to reduced charges by the time defendants requested the report. Held: Affirmed. Under the provocative act doctrine, the perpetrator of a crime is held vicariously liable for the killing of an accomplice by a third party. If the killing occurs during a crime which does not include an intent to kill, the provocative act must be something beyond that which is necessary to commit the underlying crime and must have a high probability of provoking a lethal response. The doctrine does not apply if the deceased provocateur accomplice is the sole cause of his own death. Thus, the requested report may have been useful to show that Brown caused his own death and to impeach the store owner’s testimony that it was Avery’s actions that caused him to shoot Brown. However, Penal Code section 1054 does not provide for discovery among codefendants; each party is responsible for his own investigation and trial presentation. In People v. Thompson (2016) 1 Cal.5th 1043, the court held that nothing in section 1054.1 (requiring prosecution disclosure to defendants) or section 1054.3 (requiring defense disclosure to the prosecution) requires one codefendant to provide discovery to another codefendant. Exceptions exist where necessary to ensure a defendant’s right to a fair trial, but those exceptions did not apply here.

A defendant’s due process right to receive material exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83), is not at stake in codefendant discovery. Brady evidence includes evidence to impeach prosecution witnesses. Defendants sought their codefendant’s interview with the shopkeepers to impeach the victims’ claim that Avery’s actions contributed to their decision to shoot Brown. But this is a duty of the prosecution, not of codefendants (Nielsen v. Superior Court (1997) 55 Cal.App.4th 1150), and discovery procedures do not apply to the exchange of information between codefendants. Further, nothing in the record reflects the prosecutor knew of or had obtained the codefendant’s interview, thus requiring disclosure under Brady. Nor did the codefendant’s reciprocal duties with the prosecutor require turning over the interview to the district attorney, because the potentially impeaching statement was obtained from a prosecution witness (Izazaga v. Superior Court (1991) 54 Cal.3d 356, 377 fn. 14).

The codefendant attorney’s claim of work product privilege rendered the report undiscoverable, where defendants failed to make showing required for disclosure. “The work product privilege is codified by statute, which distinguishes between an absolute and qualified privilege. (Code Civ. Pro., § 2018.030.)” An absolute privilege applies to an attorney’s conclusions, opinions, legal research and theories, which may at times be revealed in an attorney’s interview with a witness. All other work product receives qualified protection, under which the party seeking disclosure must establish that denial of disclosure will unfairly prejudice his ability to prepare a defense or will result in an injustice. (Coito v. Superior Court (2012) 54 Cal.4th 480, 485, 499.) Here, defendants failed to show that disclosure of the interview was mandated to ensure a fair trial; they did not demand discovery until the middle of trial and failed to try to conduct their own interviews. Parties must ordinarily do their own trial preparation, especially where there is no provision in the Penal Code for codefendant discovery.

Sufficient evidence supported the provocative act murder conviction. Defendants argued the jury could not have reasonably concluded that Avery’s actions contributed to Brown’s death because Avery had already been shot and was on the ground when Brown was killed. However, the jury was entitled to credit the shopkeeper’s testimony that Avery’s attack had a big effect on his decision to shoot Brown. The uncorroborated testimony of a single witness is sufficient to sustain a conviction. Further, there was nothing inherently incredible about the shopkeeper’s or employee’s testimony. Where an accomplice’s initial act escalates the level of violence in the encounter, the trier of fact may reasonably conclude the first perpetrator set into motion a chain of events leading to his fellow perpetrator’s death, even if the dead assailant also engaged in provocative acts. Thus, even if the jury reasonably concluded that Avery posed no threat at the time Brown was shot, it could still reasonably conclude Avery’s acts were a substantial factor in Brown’s death.

The full opinion is available on the court’s website here: