People v. Chavez

• Decision Date: 16 July 1973
• Docket Number: Cr. 10831
• Citation: 33 Cal.App.3d 454,109 Cal.Rptr. 157
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Jessie CHAVEZ, Defendant and Appellant.

Page 157

109 Cal.Rptr. 157

33 Cal.App.3d 454

PEOPLE of the State of California, Plaintiff and Respondent, v. Jessie CHAVEZ, Defendant and Appellant.

Cr. 10831.

Court of Appeal, First District, Division 1, California.

July 16, 1973.

Robert J. Rothman, San Francisco, by appointment of the Court of Appeals, for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Edward A. Hinz, J., Chief Asst. Atty. Gen., Crim. Div., William E. James, Asst. Atty. Gen., Appeals Section, Derald E. Granberg, Don Jacobson, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

MOLINARI, Presiding Justice.

Defendant appeals from a judgment after trial by the court finding him guilty of voluntary manslaughter. (Pen.Code, § 192, subd. (1).) The sole contention on appeal is whether the trial court committed reversible error when it ordered defendant to turn over to the prosecution statements given by defendant's witnesses. We have concluded that the trial court erred but that the error was not prejudicial.

In order to place the rationale for our conclusion in the proper perspective, we proceed to set out the salient facts. On Saturday, October 17, 1970, at approximately 8 p.m., Mrs. Eileen Bentley went to Frank's Oasis Bar in Oakland. She joined her friends Bill and Jean Corbett who had been there since 4 p.m. At approximately 11 p.m., Mrs. Bentley's son Richard appeared at the entrance of the bar and asked one of the customers to call his mother over. When she came to the door Richard asked her for 50 cents, which she gave him, and he then departed.

At approximately 1 a.m., Richard returned to the bar in an intoxicated condition, again called his mother to the door, and asked her for another 50 cents. He was accompanied by Jerry Hummingbird, Raymond Hummingbird and Dennis MacBryde. Mrs. Bentley recognized that her son had been drinking, refused him the money, told him to go home and that she would be home soon. However, Richard refused to leave and kept asking for money.

Mrs. Bentley asked Mrs. Corbett to talk with Richard and see if she could get him to go home. Mrs. Corbett did so, told Richard to go home and told him that he would not get any more money. During this conversation Mr. Corbett came to the door and told Richard that he was drunk and to go home. An argument ensued between Corbett, Richard and Jerry Hummingbird.

A patron called the argument to the attention of the bartender, Edwin ('Eddy') Morgado, who picked up his .25 caliber automatic pistol and headed for the door. At this point Mrs. Corbett pulled her husband away from the door. As Morgado rounded the bar toward the door, defendant stood up and also headed for the door. As defendant proceeded towards the door Mrs. Bentley stated to defendant not to worry about the incident and that Richard was her son. Mrs. Corbett also told him to avoid the argument. Defendant made no reply to Mrs. Bentley or Mrs. Corbett, but proceeded to follow Morgado toward the door.

When Morgado arrived at the door Richard was leaning against the wall holding a knife in his left hand about waist high with the blade in a sideways position. Morgado realized that Richard was not pointing the knife at him and told him to put it away. At this point defendant fired a gun at Richard who was shot in the head and died as a result of the gunshot. Immediately after the shooting defendant ran away from the premises with the gun in hand.

Defendant testified that he saw Corbett trying to get at Richard. He stepped forward in an attempt to stop an already heated argument. He stated that Mrs. Corbett slapped Richard, that Morgado appeared with a pistol and that Richard suddenly produced a knife and pointed it at defendant. Defendant testified that at this time he became frightened, drew his revolver and it accidentally went off.

Defendant produced a number of witnesses who testified that Richard and Corbett had quarreled on both of the occasions that Richard had come to the bar. Defense testimony was adduced that Richard had stated he was going to 'get' Corbett the next day; that Mrs. Corbett had slapped Richard; and that defendant had come to the door to try and calm things down.

On five separate occasions during the trial the prosecutor requested and was permitted discovery, over defense objections, of statements made by certain defense witnesses to John Patrick Kelly, an investigator for the Public Defender's office of Alameda County. Discovery was permitted of statements given by Corbett, Jerry Hummingbird, Raymond Hummingbird, and Phillip Cullinan during their cross-examination by the prosecutor, and, on the direct examination of Kelley, of the statements given by Corbett, Morgado, and Jerry Hummingbird. The defense objections directed to such discovery were essentially predicated on the basis that they constituted the 'work product' of defense counsel and that to permit such discovery constituted a violation of defendant's constitutional rights. These rights were asserted to be the right to due process and the rights protected by the Fifth and Sixth Amendments. In the instances involving Corbett and Kelly, defense counsel offered to submit the statements to the trial court for a determination as to what portions were subject to discovery. These offers were rejected by the trial court.

Defendant contends on appeal that the court erred in ordering his attorney to furnish his work product to the prosecution and that the trial court's discovery order deprived him of equal protection under the law and was a violation of due process.

Defendant urges that section 2016, subdivision (b), and subdivision (g), of the Code of Civil Procedure preclude discovery of an attorney's research and investigation except in the most extreme cases. Section 2016, subdivision (b), in pertinent part, provides: '. . . The work product of an attorney shall not be discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing his claim or defense or will result in an injustice, and any writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.' Section 2016, subdivision (g), provides, in pertinent part: 'It is the policy of this state (i) to preserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of such cases and (ii) to prevent an attorney from taking undue advantage of his adversary's industry of efforts.'

In Clark v. Superior Court, 190 Cal.App.2d 739, 742, 12 Cal.Rptr. 191, it was held that the statutes in the Code of Civil Procedure pertaining to depositions and discovery (§ 2016 et seq.) apply only to civil actions and proceedings. Assuming, Arguendo, that the subject statutes are applicable to criminal proceedings, defendant has made no showing that the discovered prior statements reflected the 'impressions, conclusions, opinions, or legal research or theories' of his attorney. We observe moreover, that the trial court apparently permitted the discovery of the subject statements, notwithstanding defense counsel's claim of work product, on the basis that the denial of the use of such statements would unfairly prejudice the People and would result in an injustice. Under subdivision (b) of section 2016 of the Code of Civil Procedure, the work product of an attorney is discoverable if the court determines that the denial of discovery will unfairly prejudice the party seeking discovery or will result in an injustice. We observe, in this respect, that no showing was made by the People that prejudice or injustice would result from a denial of such discovery.

We proceed to consider whether, notwithstanding the inapplicability of the 'work product' principle, the People were nevertheless entitled to discovery. In Prudhomme v. Superior Court, 2 Cal.3d 320, 85 Cal.Rptr. 129, 466 P.2d 673, a case dealing with pretrial discovery, the Supreme Court articulated a standard to be applied by prosecutors in criminal actions. Under that standard the principal element in determining whether a particular demand for discovery should be allowed is whether the disclosure conceivably might lighten the prosecution's burden of proving its case in chief. (Prudhomme v. Superior Court, supra, at p. 326, 85 Cal.Rptr. 129, 466 P.2d 673; See Rodriguez v. Superior Court, 9 Cal.App.3d 493, 496, 88 Cal.Rptr. 154; People v. Griffin, 18 Cal.App.3d 864, 870--871, 96 Cal.Rptr. 218; People v. Grey, 23 Cal.App.3d 456, 463, 100 Cal.Rptr. 245.) The rationale underlying this statement is that a defendant must be given the same right as an ordinary witness to show that disclosure of particular information could incriminate him. (Prudhomme v. Superior Court, supra.)

The Prudhomme principle was extended to discovery during trial in People v. Bais, 31 Cal.App.3d 663, 107 Cal.Rptr. 519. In that case the prosecution, after it had rested and following direct examination of two alibi witnesses, moved for discovery of extrajudicial statements made by such witnesses. The motion was granted without inquiry by the court into the incriminating nature of the information sought. The reviewing court, in reversing the judgment of conviction, applied the Prudhomme principle and held that the order granting discovery violated the defendant's privilege against self-incrimination. (31 Cal.App.3d at p. 669, 107 Cal.Rptr. 519.) Bais points out that discovery by the prosecution can lighten its burden in the constitutional sense even when permitted during the course of trial and even after the prosecution has rested since the prosecution may, for good reason and in furtherance of justice, be permitted to reopen its 'case in chief.' (31 Cal.App.3d at pp. 671--672, 107 Cal.Rptr. 519.) Accordingly, 'prosecu...