Conviction Appeal of Violation of Pretrial Discovery

To prevail on a contention made on appeal from a judgment of conviction on the grounds of violation of the pretrial discovery right of a defendant, the defendant must establish that the information not disclosed was exculpatory and that " 'there is a reasonable probability that, had the evidence been disclosed . . ., the result of the proceedings would have been different.' " (Kyles v. Whitley, supra, 514 U.S. 419, 433-434 115 S. Ct. 1555, 1565, quoting from United States v. Bagley (1985) 473 U.S. 667, 682, 685 105 S. Ct. 3375, 3383, 3385, 87 L. Ed. 2d 481; In re Brown (1998) 17 Cal. 4th 873, 886-887 72 Cal. Rptr. 2d 698, 952 P.2d 715.) Evidence is material in the context of review of a discovery violation postconviction if "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." (Kyles v. Whitley, supra, at p. 435 115 S. Ct. at p. 1566.) Posttrial, under Brady v. Maryland (1963) and its progeny, we apply the "reasonable probability of different outcome" test. Such a "reasonable probability" exists where it is probable that the discovery violation is sufficient to undermine confidence in the outcome. (Kyles v. Whitley, supra, at pp. 434-435 115 S. Ct. at p. 1566; accord, In re Brown, supra, at pp. 886-887; In re Williams (1994) 7 Cal. 4th 572, 611-612 29 Cal. Rptr. 2d 64, 870 P.2d 1072.) The obligation of the People to disclose information to the defense is dependent upon whether that obligation has a constitutional or statutory basis. As articulated by the United States Supreme Court in Brady v. Maryland (1963) 373 U.S. 83 83 S. Ct. 1194, 10 L. Ed. 2d 215, the prosecution has a sua sponte obligation, pursuant to the due process clause of the United States Constitution, to disclose to the defense information within its custody or control which is material to, and exculpatory of, the defendant. (E.g., Kyles v. Whitley (1995) 514 U.S. 419 115 S. Ct. 1555, 131 L. Ed. 2d 490; In re Ferguson (1971) 5 Cal. 3d 525 96 Cal. Rptr. 594, 487 P.2d 1234.) This constitutional duty is independent of, and to be differentiated from, the statutory duty of the prosecution to disclose information to the defense. ( 1054 et seq.; Izazaga v. Superior Court (1991) 54 Cal. 3d 356, 378 285 Cal. Rptr. 231, 815 P.2d 304.) The California statutory scheme, adopted by initiative in 1990, requires that the prosecution disclose specified information to the defense, as set out in section 1054.1, including, among other things, the names and addresses of witnesses which the prosecution intends to call at trial. ( 1054.1, subd. (a).) Violation of the California statute may result in imposition of sanctions pursuant to section 1054.5.