IAR Sys. Software, Inc. v. Superior Court of San Mateo Cnty.

In these writ proceedings, petitioners IAR Systems Software, Inc. (IAR) and Valla and Associates, Inc. (Valla), seek a writ of mandate ordering the trial court to vacate its finding of June 30, 2016, that Valla, a law firm, should be deemed part of the "prosecution team" prosecuting Nadim Shehayed for embezzlement. In addition, petitioners request that we set aside the related order granting the motion of defendant and real party in interest, Nadim Shehayed (defendant) to order Valla, as part of the prosecution team, to disclose material, exculpatory evidence in its possession in accordance with Brady v. Maryland (1963) 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ( Brady ). For reasons addressed below, we agree the trial court erred, first, in imposing a duty under Brady to disclose material, exculpatory evidence directly on Valla, as opposed to on the prosecution, and, second, in finding Valla to be part of the prosecution team. Accordingly, we grant the requested relief.

opposition. At this hearing, the court summarily scheduled an evidentiary hearing with respect to the Brady issue for April 18, 2016.

On March 21, 2016, petitioners filed a petition in this court requesting that we set aside and vacate the February 8, 2016 order for an evidentiary hearing, arguing that this hearing would violate the constitutional right of a victim (to wit, IAR) to reasonably confer with the prosecutor regarding the charged offenses, as well as IAR's right to the protection of the attorney-client and work-product privileges. In addition, petitioners argued that, as a matter of law, the attorney for a crime victim cannot be deemed part of the prosecution team. We denied this writ petition without prejudice, advising petitioners of their right to renew it if appropriate after the scheduled evidentiary hearing.

The evidentiary hearing was thus held on May 4 and June 13, 2016. Among other things, Antonio Valla, the founder of Valla, testified that the firm did not conduct legal research or investigate the charged offenses solely at the request of the police or district attorney or take any action with respect to defendant other than in its role as attorneys for IAR. To the contrary, Valla merely turned over information to law enforcement that it had independently obtained in discovery in the civil action brought against defendant. Further, Michael Purcell, a legal associate at Valla, testified that the firm did not ask the police or district attorney for assistance in the civil discovery process or in its legal research in the civil matter, nor did the firm have any sort of agreement with these agencies. Rather, the firm arranged and scheduled meetings between the police and district attorney and its client, IAR,

The evidentiary hearing revealed several instances of cooperation between the police or district attorney and Valla. For example, on July 18, 2013, Purcell, a legal associate at Valla, emailed Detective Beck, asking for Penal Code citations for the offenses that would likely be charged to defendant, explaining that the firm might try to work the elements of the charged offenses into its upcoming deposition of defendant. The police thereafter responded with two Penal Code citations, but did not suggest or request any particular deposition questions relating to these provisions. Later, Valla provided the district attorney with a copy of defendant's deposition transcript with portions underlined; however, there was no evidence that the district attorney requested this evidence, or that Valla underlined portions of the transcript at the request of anyone in law enforcement.

In addition, on February 6, 2014, the district attorney emailed the firm to request that, at an upcoming meeting, IAR employees be available to discuss, among other things, "how [the Civil Code sections relating to ratification] may or may not affect [sic] the 'ratification' defense. My office has concerns about this possible defense since Shehayed was able to get away with misappropriating funds without anyone noticing. Hopefully, the IAR employees will be able to shed more light on this area." This request from the district attorney followed her receipt of a communication from defense counsel in which counsel argued that defendant's alleged acts of embezzlement had been authorized or ratified by IAR.

The record reflects that the ratification defense was later discussed in a phone call between the district attorney and Valla associate, Michael Purcell. Following this call, the district attorney, who lacked a background in civil law, asked for citations "to the cases and statutes [that Purcell] mentioned were on point with the Shehayed criminal case," and Valla complied by emailing the district attorney copies of statutes from the Civil Code that included case citations and some analysis of Valla's thoughts on the ratification defense. At the hearing, Valla explained that it had spent only five or ten minutes crafting this response, as the firm had already researched these statutes in connection with the civil case against defendant.

Following the evidentiary hearing, the trial court granted defendant's motion. Specifically, on August 16, 2016, the court issued an order finding Valla to be a part of the prosecution team, noting, in particular, the email correspondence between Valla and law enforcement relating to the hiring of a forensic accountant, and to the identification and exchange of legal authority. The court thus ruled that "Valla & Associates are required to comply with Brady requirements. Informal discovery requests can be sent to them, and they will be expected to respond accordingly."

In August 19, 2016, Valla and IAR filed this petition for writ of mandate asking this court to direct the trial court to vacate its determination that Valla

is part of the prosecution team, and to enter a new order denying defendant's motion. The People subsequently joined in their request for relief arguing, like petitioners, that the court's finding that Valla was part of the prosecution team for purposes of Brady is erroneous as a matter of law.

We address the trial court's order, first, to the extent it requires Valla to make disclosures in accordance with Brady and, second, to the extent it relies on these particular three factors, after first setting forth the applicable legal framework.

I. Standard of Review.

Generally speaking, a trial court's ruling on discovery matters is reviewed for abuse of discretion. ( People v. Ayala (2000) 23 Cal.4th 225 , 299, 96 Cal.Rptr.2d 682 , 1 P.3d 3 .) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.]" ( People v. Giminez (1975) 14 Cal.3d 68 , 72, 120 Cal.Rptr. 577 , 534 P.2d 65 .) However, the duty to disclose under Brady is not a discovery rule, but a due process requirement: "The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur." ( United States v. Bagley (1985) 473 U.S. 667 , 675, 105 S.Ct. 3375 , 87 L.Ed.2d 481 ); see also

"A prosecutor's duty under Brady to disclose material exculpatory evidence extends to evidence the prosecutor-or the prosecution team-knowingly possesses or has the right to possess. The prosecution team includes both investigative and prosecutorial agencies and personnel. [Citation.] In Kyles v. Whitley (1995) 514 U.S. 419 , 437-438 [ 115 S.Ct. 1555 , 1567, 131 L.Ed. 2d 490 ], the Supreme Court held that a prosecutor has a duty to learn of favorable evidence known to other prosecutorial and investigative agencies acting on the prosecution's behalf, including police agencies. The scope of the prosecutorial duty to disclose encompasses exculpatory evidence possessed by investigative agencies to which the prosecutor has reasonable access. [Citation.]" ( People v. Superior Court ( Barrett ) (2000) 80 Cal.App.4th 1305 , 1314-1315, 96 Cal.Rptr.2d 264 [ Barrett ].)

"A prosecutor has a duty to search for and disclose exculpatory evidence if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work. The important determinant is whether the person or agency has been 'acting on the government's behalf' ( Kyles v. Whitley, supra , 514 U.S. at p. 437 [115 S.Ct. at p. 1567] ) or 'assisting the government's case.' [Citation.] [¶] Conversely, a prosecutor does not have a duty to disclose exculpatory evidence or information to a defendant unless the prosecution team actually or constructively possesses that evidence or information. Thus, information possessed by an agency that has no connection to the investigation or prosecution of the criminal charge against the defendant is not possessed by the prosecution team, and the prosecutor does not have the duty to search for or to disclose such material." ( Barrett, supra , 80 Cal.App.4th at p. 1315, 96 Cal.Rptr.2d 264 .)

" '[T]he duty to disclose exists regardless of whether there has been a request by the accused, and the suppression

[citations], a fortiori, it must be charged with any negligence on the part of other agencies acting in its behalf [citations]. Accordingly, the risk and consequences of nonreceipt must fall to the prosecution." ( In re Brown (1998) 17 Cal.4th 873 , 881-882, 72 Cal.Rptr.2d 698 , 952 P.2d 715 .) "Although rigorous, we do not perceive the duty imposed by Brady as too onerous. [Citations.] 'Obviously some burden is placed on the shoulders of the prosecutor when he is required to be responsible for those persons who are directly assisting him in bringing an accused to justice. But this burden is the essence of due process of law. It is the State that tries a man, and it is the State that must insure that the trial is fair.' [Citations.] This obligation serves 'to justify trust in the prosecutor as 'the representative ... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'' ' ( Kyles, supra , 514 U.S. at p. 439 [115 S.Ct. at p. 1568]....) It also tends 'to preserve the criminal trial, as distinct from the prosecutor's private deliberations [or some other agency's independent assessment of materiality], as the chosen forum for ascertaining the truth about criminal accusations. [Citations.]' ( Kyles, supra , 514 U.S. at p. 440 [115 S.Ct. at p. 1568] ; [ U.S. v. ] Alvarez [ (9th Cir. 1996) ] supra , 86 F.3d [901] at p. 905.)" ( In re Brown, supra , 17 Cal.4th at p. 883, 72 Cal.Rptr.2d 698 , 952 P.2d 715 .) As such, we conclude the trial court committed legal error by imposing any duty under Brady to disclose material, exculpatory evidence directly on Valla, as opposed to on the prosecution. As explained above, Brady is not a discovery rule, but a requirement of due process. ( United States v. Bagley, supra, 473 U.S. at p. 675, 105 S.Ct. 3375 .)

At the same time, however, there remains at play the separate issue of whether Valla may be deemed part of the prosecution team for purposes of Brady , such that the prosecution can be required to search for and disclose Brady materials under Valla's possession or control. The trial court, in finding Valla to be part of the prosecution team for purposes of Brady , and, as such, under a duty to disclose exculpatory evidence, employed the "totality of the circumstances" test set forth by the federal district court for the Southern District of New York in United States v. Meregildo (S.D.N.Y. 2013) 920 F.Supp.2d 434 ( Meregildo ). There, the defendant called upon the district court to find that a cooperating witness was part of the prosecution team. In declining to do so, the court first made the point that the disclosure requirements under Brady stem from the unique role the government plays in criminal prosecutions. ( Id . at p. 439 ["[ Brady ] obligations prevent the Government from exploiting its position to obtain

Then, following a lengthy discussion of the relevant case law, the district court ultimately identified the following legal framework: "There is no clear test to determine when an individual is a member of the prosecution team. See United States v. Zagari , 111 F.3d 307 , 320 fn. 13 (2d Cir. 1997) ('The extent to which knowledge may be imputed from one federal investigative agency to another for Brady purposes is as yet unclear.'); [citations] ). [¶] A prosecution team may have many members with different responsibilities. At its core, members of the team perform investigative duties and make strategic decisions about the prosecution of the case. See, e.g., Kyles , 514 U.S. at 438 , 115 S.Ct. 1555 (police investigator); Giglio [v. U.S. (1972) ] 405 U.S. [150] at [p.] 154, 92 S.Ct. 763 , 31 L.Ed.2d 104 (fellow prosecutor). The prosecution team may also include individuals who are not strategic decision-makers. See, e.g., United States v. Bin Laden, 397 F.Supp.2d 465 , 481 (S.D.N.Y. 2005) (finding that agents of the United States Marshals Service's Witness Security Program were members of the prosecution team because, at the prosecutors' request, the agents installed and continuously operated video-teleconference equipment 'in order to further the Government's investigation'). Those may include testifying police officers and federal agents who submit to the direction of the prosecutor and aid in the Government's investigation. Pina [ v. Henderson (2d Cir. 1985) ] 752 F.2d [47] at [p.] 47 ; Bin Laden , 397 F.Supp.2d at 481 . But the prosecution team does not include federal agents, prosecutors, or parole officers who are not involved in the investigation. [ U.S. v. Locascio (2d Cir. 1993) ] 6 F.3d [924] at [p.] 949 ; [ U.S. v. Quinn (2d Cir. 1971) ] 445 F.2d [940] at [p.] 944 ; Pina , 752 F.2d at 47. And, even when agents are involved in the investigation, they are not always so integral to the prosecution team that imputation is proper. See United States v. Stewart , 323 F.Supp.2d 606 , 616-18 (S.D.N.Y. 2004) (declining to impute knowledge of a forensic expert from the Secret Service lab who provided trial support for the prosecution and testified as an expert); see also, e.g., United States v. Persico, No. 84 Cr. 809 (JFK), 1993 U.S. Dist.LEXIS 13640 , 1993 WL 385799 , at *6 (S.D.N.Y. Sept. 29, 1993) (declining to impute a case agent's knowledge of a Government witness's illegal actions)." ( Meregildo, supra, 920 F.Supp.2d at pp. 441-442. Accord Barnett v. Superior Court (2010) 50 Cal.4th 890 , 904, 114 Cal.Rptr.3d 576 , 237 P.3d 980 [borrowing the following three-part Brady inquiry from federal case law when deciding the analogous issue of whether a defendant sentenced to death was entitled to postconviction discovery under section 1054.9: " '(1) whether the party with knowledge of the information is acting on the government's "behalf" or is under its "control"; (2) the extent to which state and federal governments are part of a "team," are participating in a "joint investigation" or are sharing resources; and (3) whether the entity charged with constructive possession has "ready access" to the evidence.' [Citations.]"].)

The federal district court also identified several limitations on whether an individual or entity could be deemed part of the prosecution team under the totality-of-the-

However, whatever the wisdom of petitioners' proposed rule that a victim's attorney cannot, as a matter of law, be deemed part of the prosecution team, we conclude that the particular facts of this case demonstrate that Valla cannot be deemed part of the prosecution team. As the Meregildo court aptly explained when distinguishing between government agents and non-governmental cooperating witnesses for the purpose of determining whether an actor may be deemed part of the prosecution team: "At bottom, imputation involves a question of agency law: should a prosecutor be held responsible for someone else's actions? ( [Citation; citing] Restatement (Second) of Agency § 272.) An agency relationship is limited in scope and defined by control. Restatement (Second) of Agency § 14. 'A principal has the right to control the conduct of the agent with respect to matters entrusted to him.'). And an agent's duties are limited by the

simply, Valla's involvement with the prosecution as a cooperating witness in this matter has not been significant enough to warrant the trial court's finding that Valla's files should be deemed under the district attorney's "control" for purposes of Brady .

In so concluding, we again note that, below, the trial court relied primarily upon the sharing of legal citation and "analysis" between Valla and the police or district attorney, and the delegating by the district attorney to Valla of the task of hiring and paying for a forensic accountant to prepare a report and testify regarding the factual basis for the charges against defendant. However, based on our own review of the record, we conclude the evidence is in fact much more benign than the trial court's ruling would suggest. For example, with respect to the sharing of legal authority, it appears Valla did no more than share a handful of legal citations and some analysis relating to Valla's thoughts on the ratification defense based on the research the firm had already undertaken in the civil action it was pursuing against defendant on its client's behalf-a task that took only about five or 10 minutes. Contrary to the trial court's finding, however, the firm did not undertake on behalf of, or at the direction of the district attorney any legal analysis, the sort of cooperation that, under the case law, might place a private party under the prosecution-team umbrella.

Next, the trial court accurately found that the district attorney suggested to Valla, as legal representative to IAR, that it select and hire a forensic accountant to examine and then testify regarding the

Nardi understand Smith to be part of the prosecution's team, much less exert the degree of control, direction or assistance over his work as would be necessary to trigger the prosecution's disclosure obligations under Brady . Given this record, we conclude the fact that law enforcement may have obtained more specialized information and expertise from the crime victim, IAR, in this case than it would have in a more ordinary criminal case does not, without more, prove Valla and the prosecution were "team members" for purposes of Brady . (See Meregildo, supra, 920 F.Supp.2d at p. 441 ["At its core, members of the team perform investigative duties and make strategic decisions about the prosecution of the case"].)

Finally, with respect to Valla's request for information from the district attorney's office about the crimes with which they intended to charge to defendant, the record reflects that Valla made this request in order to prepare questions regarding the elements of these crimes for defendant's already-scheduled deposition in the civil matter. It does not, to the contrary, reflect Valla's investigation of defendant at the direction of or on behalf of the prosecution in this criminal matter. Further, according to the record, in response to Valla's request, the police merely provided the firm with two citations to Penal Code provisions. While it is true that Valla later gave law enforcement a copy of defendant's deposition transcript with certain portions underlined, there is no evidence that Valla asked any question during defendant's deposition at the direction of the police, or shared or highlighted deposition testimony at the request or direction of the police. As such, the record establishes no more than that Valla, attorney of record for IAR in a civil lawsuit against defendant, was discharging its fiduciary duty to thoroughly investigate the facts and seek appropriate legal redress on behalf of its client rather than working on behalf, and as an agent, of the government to prosecute defendant in the criminal realm.

Lastly, two additional factors persuade us that the trial court's decision cannot stand on this record. First, we note that Valla's conduct in each of the identified

and provided these agencies with information that was already in its or its client's possession.

Both Elizabeth Nardi and Kimberly Perrotti, San Mateo County deputy district attorneys, confirmed this testimony. While it was standard procedure for the district attorney's office to communicate with a crime victim (here, IAR) through its attorneys, they did not ask Valla in this case to gather evidence, interview witnesses or find specific witnesses on its behalf. Similarly, Detective William Beck of the Foster City Police Department testified that the police conducted its own investigation without guidance from Valla, and did not ask Valla to gather specific evidence, make specific discovery requests or talk to specific witnesses. Valla did, however, forward a copy of defendant's deposition transcript to the police.

With respect to IAR's selection and hiring of a forensic accountant, deputy district attorney Nardi wrote an email to Valla on June 20, 2013, noting the financial complexity of the case against defendant and describing the impediments her office faced in determining whether to bring charges against him:

hearing in this matter, after reviewing the evidence with the district attorney. IAR paid Smith for his services in both the criminal and civil matter, which mainly consisted of reporting on defendant's credit card expenses and identifying which were likely personal in nature as opposed to business in nature.

Weatherford v. Bursey (1977) 429 U.S. 545 , 559-560, 97 S.Ct. 837 , 51 L.Ed.2d 30 ["There is no general constitutional right to discovery in a criminal case, and Brady did not create one ... 'the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded' "].) As such, the abuse of discretion standard for discovery rulings does not apply. Rather, whether Brady applies is a legal matter, reviewed de novo. ( People v. Uribe (2008) 162 Cal.App.4th 1457 , 1473, 76 Cal.Rptr.3d 829 .) At the same time, the trial court's factual findings are, as usual, reviewed for substantial evidence. ( People v. Superior Court (Hartway) (1977) 19 Cal.3d 338 , 350 fn. 6, 138 Cal.Rptr. 66 , 562 P.2d 1315 .)

II. Brady v. Maryland (1963) 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 ( Brady ).

" ' "The prosecution has a duty under the Fourteenth Amendment's due process clause to disclose evidence to a criminal defendant" when the evidence is "both favorable to the defendant and material on either guilt or punishment." [Citations.] Evidence is "favorable" if it hurts the prosecution or helps the defense. [Citation.] "Evidence is 'material' 'only if there is a reasonable probability that, had [it] been disclosed to the defense, the result ... would have been different.' " [Citations.]' ( People v. Earp (1999) 20 Cal.4th 826 , 866 [ 85 Cal.Rptr.2d 857 , 978 P.2d 15 ] ; see, e.g., United States v. Bagley (1985) 473 U.S. 667 , 674-678, 105 S.Ct. 3375 , [ 87 L.Ed.2d 481 ] ( Bagley ); Brady, supra, 373 U.S. at p. 87 [ 83 S.Ct. 1194 ] ; In re Sassounian (1995) 9 Cal.4th 535 , 543-545 [ 37 Cal.Rptr.2d 446 , 887 P.2d 527 ].)' " ( People v. Superior Court ( Meraz ) (2008) 163 Cal.App.4th 28 , 47, 77 Cal.Rptr.3d 352 .)

of evidence that is materially favorable to the accused violates due process regardless of whether it was intentional, negligent, or inadvertent. [Citations.]' [Citation.]" ( People v. Superior Court ( Meraz ), supra , 163 Cal.App.4th at pp. 47-48, 77 Cal.Rptr.3d 352 .)

Applying these legal principles to the record before us, we first find error in the trial court's order to the extent it purports to require Valla-as opposed to the prosecution-to comply with Brady requirements by responding to informal discovery requests sent directly to them. "[T]he Supreme Court has unambiguously assigned the duty to disclose [under Brady ] solely and exclusively to the prosecution; those assisting the government's case are no more than its agents. ( Kyles, supra , 514 U.S. at p. 438 [115 S.Ct. at p. 1568] ; [citations].) By necessary implication, the duty is nondelegable at least to the extent the prosecution remains responsible for any lapse in compliance. Since the prosecution must bear the consequences of its own failure to disclose

an unfair advantage at trial"]; see also Strickler v. Greene (1999) 527 U.S. 263 , 281, 119 S.Ct. 1936 , 144 L.Ed.2d 286 ["[w]ithin the federal system, for example, we have said that the United States Attorney is 'the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done' "].)

circumstances test: "Interacting with the prosecution team, without more, does not make someone a team member. Stewart , 323 F.Supp.2d at 616-18 . Instead, under the totality of the circumstances, the more involved individuals are with the prosecutor, the more likely they are team members. Stewart , 323 F.Supp.2d at 616-18 . Among many others, these circumstances include whether the individual actively investigates the case, acts under the direction of the prosecutor, or aids the prosecution in crafting trial strategy. See, e.g., United States v. Diaz , 176 F.3d 52 106-07 (2d Cir. 1999). In some cases, when an individual is significantly involved with the prosecution, the presence of a single factor may warrant imputation. Cf. United States v. Stein , 488 F.Supp.2d 350 , 364 (S.D.N.Y. 2007) (holding that materials in corporation's files are within government's 'control' for Rule 16 purposes because of cooperation agreement). In other cases, when an individual's involvement is minor, even the presence of many factors will not warrant imputation. See, e.g., Stewart , 323 F.Supp.2d at 616-18 . Ultimately, no single factor is the touchstone for imputation. Bin Laden , 397 F.Supp.2d at 481 ." ( Meregildo, supra, 920 F.Supp.2d at pp. 441-442.) We find the federal court's analytic framework persuasive.

To begin with, we accept petitioners' point that there is no published decision in California or elsewhere holding that a private party that is also a crime victim qualifies as a member of the prosecution team for purposes of Brady . Indeed, defendant has directed us to no such case; nor have we found one. This likely reflects two factors. First, as noted above, the Brady rule arises from the unique role prosecutors and their agents play in our criminal justice system, which courts have recognized justifies Brady 's heightened disclosure requirements. (E.g., Strickler v. Greene, supra, 527 U.S. at p. 281, 119 S.Ct. 1936 .) However, crime victims and their attorneys, like IAR and Valla, are also uniquely positioned in our criminal justice system. As petitioners point out, the California Constitution affords crime victims certain unique rights, including the right to refuse to cooperate with the prosecution and, of particular significance here, the right "to reasonably confer with the prosecuting agency, upon request, regarding, the arrest of the defendant ... [and] the charges filed...." (Cal. Const., art. I, § 28, subd. (b)(6).) Given these circumstances, petitioners contend that, as a matter of law, crime victims and their legal representatives cannot be deemed part of the prosecution team for purposes of Brady . As the People argue, to "impose on the victim's law firm the moniker of 'prosecution team' is to impose on the victim-principal a status limiting the victim's constitutional rights ... and limits the agent lawyer's ability to take actions on the principal's own behalf to secure recovery that may well conflict with the prosecution's interests."

scope of the agency relationship. Restatement (Second) of Agency § 14. Generally, a principal is responsible for the knowledge of an agent when that agent has a 'duty to give the principal information' or when the agent acts on his knowledge regarding a matter that is 'within his power to bind the principal.' Restatement (Second) of Agency § 272. An agent's duty to disclose is thus linked to his power to bind the principal. [¶] Because a prosecutor exercises greater control over federal agents than cooperating witnesses, the agency relationship between a federal agent and a prosecutor is strong. By contrast, the scope of the agency relationship between a cooperatingwitness and a prosecutor is narrower and warrants imputation in fewer circumstances. This comports with sound policy and common sense. It does not require an analysis of agency law to determine that a police officer or federal agent is in a better position than a cooperating witness to bind the federal government ." ( Meregildo, supra, 920 F.Supp.2d at pp. 443-444 [italics added].)

As this discussion by our federal colleague in Meregildo reflects, the issue, in essence, is whether the prosecution has exercised such a degree of control over the nongovernmental actor or witness that the actor or witness's actions should be deemed to be those of the prosecution for purposes of Brady compliance. Further, this framing of the issue fits well within the broader standard, set forth in the California case law, requiring a prosecutor to search for and disclose exculpatory evidence "if the evidence is possessed by a person or agency that has been used by the prosecutor or the investigating agency to assist the prosecution or the investigating agency in its work," such that the person or agency may be deemed an agent of the prosecution for purposes of the matter at hand. (E.g., Barrett, supra , 80 Cal.App.4th at p. 1315, 96 Cal.Rptr.2d 264 ; see also Kyles v. Whitley, supra , 514 U.S. at p. 437, 115 S.Ct. 1555 ["[t]he important determina[tion] is whether the person or agency has been 'acting on the government's behalf' "]; accord Restatement (Second) of Agency § 14 ["A principal has the right to control the conduct of the agent with respect to matters entrusted to him"].) Given the record at hand, we conclude the answer in this case is, no. Quite

instances was wholly consistent with the general right of crime victims under the California Constitution to "reasonably confer with the prosecuting agency" regarding "the charges filed" against the defendant. (Cal. Const., art. 1, § 28, subd. (b)(6).) As deputy district attorney Nardi testified, it was common practice for her office to communicate with crime victims through their attorneys. While it is undoubtedly true that Valla and IAR, as crime victim, and the district attorney, as prosecutor, share an interest(s) in the outcome of this case, the nature of their interests surely differs. Specifically, while crime victims and their attorneys inevitably have privately-motivated interests in bringing a defendant to justice and, if appropriate, gaining redress, the district attorney, as an arm of the government, is duty-bound to serve the public interest in uncovering the truth behind the underlying charges. (See United States v. Josleyn (1st Cir. 2000) 206 F.3d 144 , 154

extend the scope of this duty to include Valla in this case, we avoid undue intrusion into the

People v. Uribe , supra , 162 Cal.App.4th at pp. 1479-1481, 76 Cal.Rptr.3d 829 [holding that a SART