People v. Super. Ct. (Jones) ( 2021 )

IN THE SUPREME COURT OF
CALIFORNIA
THE PEOPLE,
Petitioner,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
BRYAN MAURICE JONES,
Real Party in Interest.
S255826
Fourth Appellate District, Division One
D074028
San Diego County Superior Court
CR136371
December 2, 2021
Justice Kruger authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Groban, and Jenkins concurred.
PEOPLE v. SUPERIOR COURT (JONES)
S255826
Opinion of the Court by Kruger, J.
A jury convicted Bryan Maurice Jones of capital murder
and returned a verdict of death in 1994. Decades later, after
this court affirmed his conviction and death sentence on appeal,
Jones filed a habeas corpus petition claiming the prosecution
had used peremptory strikes to discriminate against prospective
jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
In connection with this petition, Jones filed a motion for
postconviction discovery under Penal Code section 1054.9
seeking access to the prosecutor’s jury selection notes. The trial
court granted the motion, rejecting the District Attorney’s
argument that the notes are shielded from disclosure as
attorney work product. The Court of Appeal affirmed.
We affirm as well. At the Batson/Wheeler hearing, the
prosecutor had relied on an undisclosed juror rating system to
explain his reasons for the challenged peremptory strikes. By
putting the rating system at issue, the prosecutor impliedly
waived any claim of work product protection over notes
containing information about the system. The District Attorney
may not now invoke attorney work product protection to
withhold information necessary to the fair adjudication of
Jones’s Batson/Wheeler claim.
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
I.
During jury selection at Jones’s 1994 trial, defense counsel
raised multiple objections to the prosecution’s use of peremptory
strikes to eliminate Black jurors from the jury pool. On each
occasion, counsel argued the strikes were motivated by race and
therefore invalid under Batson and Wheeler.
Jones initially challenged the prosecutor’s strikes of
prospective jurors Y.J. and C.G. To evaluate Jones’s claim, the
trial court employed the familiar three-step framework set out
in Batson. (See, e.g., People v. Williams (2013) 58 Cal.4th 197,
280.) At the first step of the inquiry, the trial court determined
that Jones made a prima facie showing of racial discrimination
and proceeded to the second step of the inquiry by asking the
prosecutor to provide his reasoning for the strikes. The
prosecutor explained that he used a numerical rating system to
evaluate prospective jurors sight unseen based on answers in
their written juror questionnaires; he told the court that both he
and another member of the prosecution team had assigned Y.J.
and C.G. low scores using this system. The prosecutor offered
that Prospective Juror Y.J., for instance, was rated “13th lowest
of the whole group,” and “[t]here were too many people that are
[rated] better than her.” The prosecutor went on to elaborate on
the ratings of Y.J. and C.G. by describing their written answers
to specific questions on the questionnaires. At the third and
final step of the inquiry, the trial court accepted the prosecutor’s
explanations for the two strikes as race neutral and denied
Jones’s Batson/Wheeler challenge.
Jones renewed the challenge when the prosecutor struck
another Black prospective juror, J.Y. After the trial court found
a prima facie showing of discrimination, the prosecutor similarly
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
cited the prospective juror’s low score, explaining that it was
“based upon our numerical analysis by three people who
independently read the questionnaire.” The trial court again
accepted the prosecutor’s explanations and denied the
challenge.
The seated jury ultimately found Jones guilty and
returned a verdict of death. On direct appeal of the judgment,
Jones claimed that the prosecution’s peremptory strikes of Y.J.
and C.G. were improper and that the prosecutor’s proffered race
neutral justifications were pretexts for discrimination. (See
People v. Jones (2013) 57 Cal.4th 899, 916.) We rejected the
argument, concluding “our usual deference to the trial court’s
assessment of the prosecutor’s sincerity [was] appropriate” on
the facts presented.1 (Id. at p. 918.) Finding no other reversible
error, we affirmed Jones’s conviction and sentence. (Id. at
p. 981.)
In 2014, the year after we decided Jones’s direct appeal,
and 20 years after the trial, Jones filed a petition for writ of
habeas corpus in this court. He substantively amended the
petition in 2018. Among other claims, the amended petition
alleged that Jones’s trial counsel was ineffective for failing to
raise and properly litigate Batson/Wheeler challenges.
1
On direct appeal, Jones also renewed his challenge to the
removal of Prospective Juror N.S. (See People v. Jones, supra,
57 Cal.4th at p. 916.) With respect to N.S., the trial court had
ruled there was no prima facie showing of discrimination.
Because it was unclear whether the trial court had applied the
correct prima facie case standard, we independently reviewed
the record and upheld the trial court’s conclusion that Jones
failed to make out a prima facie case of discrimination
concerning N.S. (Id. at pp. 919–920.)
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
Specifically, the petition asserted that trial counsel was
deficient for failing to raise a Batson/Wheeler objection when the
prosecutor used 13 of 17 peremptory challenges to strike women
(see, e.g., J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 146
[holding that gender is an impermissible basis for the exercise
of peremptory strikes]; People v. Howard (1992) 1 Cal.4th 1132,
1158 [same]), and for inadequately litigating Batson/Wheeler
challenges to the removal of Black prospective jurors. The
amended petition also renewed the Batson/Wheeler claims
raised on appeal, citing additional evidence not in the trial
record.
In connection with his habeas petition, Jones filed a
motion for postconviction discovery in superior court under
Penal Code section 1054.9 (section 1054.9). The motion
requested production of contemporaneous jury selection notes
created by the prosecutor and other members of the prosecution
team as they prepared for and conducted jury selection in
Jones’s trial.2 The District Attorney opposed the motion,
asserting the jury selection notes were core work product
absolutely protected by Code of Civil Procedure section
2018.030, subdivision (a), and consequently were not
discoverable. (See Pen. Code, § 1054.6 [“Neither the defendant
nor the prosecuting attorney is required to disclose any
materials or information which are work product as defined in
subdivision (a) of Section 2018.030 of the Code of Civil Procedure
. . . .”].) In reply, Jones argued that the prosecutor “effectively
2
Jones also requested other items related to jury selection,
including prosecution policies and training materials and
records related to other cases tried by the prosecutor. The
questions on which we granted review concern only the jury
selection notes.
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
waived” any work product privilege over the notes when he
offered reasons for the challenged strikes that were based on
notes of a juror rating system. Jones further argued the notes
were subject to disclosure under Evidence Code section 771,
which requires the production of any writing used to refresh the
memory of a testifying witness, and that trial counsel would
have been entitled to the jury selection notes if counsel had
requested them during the Batson/Wheeler hearing.
The trial court rejected the District Attorney’s work
product argument and granted Jones’s motion. Voicing general
agreement with Jones’s arguments, the court determined that
Jones was entitled to any notes “that could possibly impeach”
the prosecutor’s comments during the Batson/Wheeler hearings.
The court observed that without such material, Jones would be
unable to address the legitimacy of the prosecutor’s reasons for
striking prospective jurors.
The District Attorney petitioned for a writ of mandate
and/or prohibition seeking to vacate the trial court’s order. The
Court of Appeal summarily denied the petition. We granted the
District Attorney’s petition for review and transferred the
matter to the Court of Appeal with instructions to issue an order
to show cause.
In a published opinion, the Court of Appeal upheld the
trial court’s order. (People v. Superior Court (Jones) (2019) 34
Cal.App.5th 75 (Jones).) The Court of Appeal began by
questioning “whether the work product privilege remains
absolute when a court has an obligation to evaluate the intent
of the prosecution, and the written mental impressions
themselves may reveal an effort to unlawfully exclude
prospective jurors based on race or gender.” (Id. at p. 81.) The
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
court opined that to extend absolute work product protection to
such writings, as opposed to writings reflecting the attorney’s
thoughts and opinions about the legal case or trial strategy,
would be inconsistent with the nature of an inquiry that
requires trial courts to evaluate the prosecutor’s reasons for
exercising challenged strikes. (Id. at p. 82.) But even assuming
jury selection notes are otherwise nondiscoverable work
product, the court went on to hold that the prosecution had
waived work product protection. (Id. at p. 83.) Citing both
Evidence Code section 771 and United States v. Nobles (1975)
422 U.S. 225, 239 (Nobles), the court reasoned that because the
prosecutor had used his notes to refresh his recollection about
the reasons for striking the challenged jurors and because he
described the numerical evaluations detailed in those notes, the
opposing party was entitled to see the notes upon request.
(Jones, at pp. 83–85.)
We granted the District Attorney’s petition for review to
consider whether the trial court’s disclosure order was
permissible. In addressing this issue, the Court of Appeal
applied an abuse of discretion standard, which is the usual
standard for reviewing discovery rulings. (Jones, supra, 34
Cal.App.5th at p. 79.) But the particular discovery ruling at
issue in this case encompasses various determinations —
including whether, as Jones has argued, the prosecution waived
any applicable work product through its litigation conduct —
that arguably call for a more demanding standard of review.
Several courts have treated claims regarding the waiver of work
product protections and other privileges as mixed questions of
law and fact subject to independent review on appeal. (See, e.g.,
Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 842–843;
McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th
6PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
1229, 1235–1236; U.S. v. Sanmina Corp. (9th Cir. 2020) 968
F.3d 1107, 1116; U.S. v. Lara (4th Cir. 2017) 850 F.3d 686, 690.)
But not all courts are in accord. (See, e.g., In re Chevron Corp.
(3d Cir. 2011) 633 F.3d 153, 161 [applying an abuse of discretion
standard]; In re Grand Jury Proceedings (2d Cir. 2000) 219 F.3d
175, 182 [same].) We do not resolve the issue here, since neither
party has briefed it and the answer is immaterial in any event.
Whether we were to apply independent review or a more
deferential standard, we would conclude the trial court properly
ordered disclosure of the requested materials in order to ensure
fair adjudication of Jones’s Batson/Wheeler claims.
II.
More than four decades ago, this court in Wheeler held
that the use of peremptory challenges to remove prospective
jurors on the basis of race or other forms of group bias violates
article I, section 16 of the California Constitution. (Wheeler,
supra, 22 Cal.3d at pp. 276–277.) Several years later, the
United States Supreme Court in Batson reached the same
conclusion under the equal protection clause of the Fourteenth
Amendment to the United States Constitution. (Batson, supra,476 U.S. at p. 86.) As a result of these decisions, a litigant has
the right to challenge an opponent’s discriminatory use of
peremptory challenges. But as both the United States Supreme
Court and this court have repeatedly made clear, the harm of
the practice is not limited to individual litigants.
Discrimination in jury selection also does grievous injury to the
jurors and to “the very integrity of the courts” charged with
ensuring equal justice for all comers in a diverse society.
(Miller-El v. Dretke (2005) 545 U.S. 231, 238 (Miller-El); accord,
People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.)
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
Courts employ a three-step inquiry to uncover
unconstitutional discrimination in the exercise of peremptory
strikes. Once a defendant has made out a prima facie case of
discrimination, the burden shifts to the prosecution to provide a
neutral justification for the strike; the trial court must then
decide whether purposeful discrimination has occurred.
(Johnson v. California (2005) 545 U.S. 162, 168; People v.
Williams, supra, 58 Cal.4th at p. 280.)
Although this burden-shifting framework is well
established, experience has demonstrated “the practical
difficulty of ferreting out discrimination in selections
discretionary by nature, and choices subject to myriad
legitimate influences.” (Miller-El, supra, 545 U.S. at p. 238.)
Assessing an attorney’s motivation for striking a juror, as
required at Batson’s third step, is often a sensitive and
challenging inquiry.3 The trial court must discern the motives
of the striking attorney by “assess[ing] the plausibility of [the
attorney’s proffered] reason in light of all evidence with a
bearing on it.” (Id. at p. 252.) Considering “all evidence with a
bearing” on the attorney’s motives typically requires the trial
court to evaluate factors such as the attorney’s demeanor, the
plausibility of his or her explanations, as well as the court’s own
observations, if any, about the struck juror as compared with the
other jurors in the venire. (Ibid.; see also People v. Lenix (2008)
44 Cal.4th 602, 613.) A trial judge may also further question the
3
As the trial judge remarked in this case: “I will tell you,
as a long time trial judge, this is a very difficult issue for trial
judges to deal with because you have an attorney at sidebar and
he or she is making representations to you as to why a
peremptory challenge was made, and it’s always been, for this
Court, a very uncomfortable sidebar.”
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
attorney on any particular proffered rationale for a challenged
strike and may rely on the judge’s own experiences both as an
attorney and on the bench. “ ‘Usually, “the issue comes down to
whether the trial court finds the prosecutor’s race-neutral
explanations to be credible.” ’ ” (People v. Smith (2018) 4 Cal.5th
1134, 1147, quoting Miller-El v. Cockrell (2003) 537 U.S. 322,
339.)
While a trial court’s determination at Batson/Wheeler’s
third step is ordinarily made on the basis of oral representations
and personal observation, appellate and postconviction review
is often confined to the written record. Although not limited to
the precise arguments or evidence presented to the trial court
on the challenged peremptory strikes (see, e.g., People v. Lenix,
supra, 44 Cal.4th at p. 622), reviewing courts are generally
constrained to “rely on the good judgment of the trial courts to
distinguish bona fide reasons for such peremptories from sham
excuses belatedly contrived to avoid admitting acts of group
discrimination” (Wheeler, supra, 22 Cal.3d at p. 282). In some
cases, limitations in the trial record may make it difficult for a
reviewing court to fully evaluate a claim of Batson/Wheeler
error.
Attorneys and courts have, on various occasions, relied on
jury selection notes to provide additional evidentiary support for
Batson/Wheeler claims raised on appeal or in postconviction
proceedings. Recent decisions of the United States Supreme
Court offer important examples. In Miller-El, supra, 545 U.S.
231, for instance, the court granted federal habeas relief to a
prisoner who alleged that prosecutors impermissibly struck
Black veniremembers on the basis of race at his trial many years
earlier. In reaching that conclusion, the high court cited
considerable evidence bearing on the issue of discrimination,
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
including the prosecutor’s notations on jury cards indicating the
race of each veniremember. The high court observed that “the
prosecutors’ own notes proclaim that [an] emphasis on race was
on their minds when they considered every potential juror.” (Id.
at p. 266.)
In granting the discovery order in this case, the trial court
pointed specifically to Foster v. Chatman (2016) 578 U.S. 488[136 S.Ct. 1737] (Foster), in which the prosecution’s jury
selection notes formed the centerpiece of the petitioner’s claim
on habeas. The prosecution’s jury selection file, which petitioner
had obtained through a public records request, unambiguously
revealed the role race played in the prosecution’s
decisionmaking process. The prosecutor had used a highlighter
to identify all of the Black prospective jurors, with the legend
stating that the highlighting “ ‘represents Blacks.’ ” (Id. at
p. 1744.) Additionally, the letter B appeared next to each Black
prospective juror’s name. On the questionnaires of Black jurors,
the “juror’s response indicating his or her race had been circled.”
(Ibid.) There were also handwritten notes indicating the
prosecution’s aversion to seating Black jurors, an investigator’s
draft affidavit explaining who to select “ ‘[i]f it comes down to
having to pick one of the black jurors,’ ” and notes that put an N
(allegedly for no) next to every prospective Black juror’s name.
(Ibid.)
Rejecting the state’s entreaties to ignore the jury selection
file, the high court concluded that the file was not only relevant,
but dispositive; the prosecutor’s notes revealed a singular focus
on the jurors’ race that “plainly demonstrate[d] a concerted
effort to keep black prospective jurors off the jury.” (Foster,
supra, 136 S.Ct. at p. 1755; see ibid. [“The contents of the
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
prosecution’s file . . . plainly belie the State’s claim that it
exercised its strikes in a ‘color-blind’ manner.”].)
These cases offer particularly prominent examples of how
jury notes can shed light on an attorney’s contemporaneous
motives in striking a prospective juror, but they are not isolated
ones. In Mitcham v. Davis (N.D.Cal. 2015) 103 F.Supp.3d 1091,
for instance, the federal court reviewed the prosecutor’s jury
selection notes before granting habeas relief to a California
prisoner on Batson-related grounds. The notes revealed that the
prosecutor had kept track of the race of the Black jurors but not
of other jurors and had rated every Black juror as unacceptable.
The prosecutor’s notes during the voir dire of one Black juror
stated: “ ‘Keep if necessary to avoid Wheeler — She would try to
be fair.’ ” (Id. at p. 1097.) The notes also revealed evidence of
racial bias in the striking of certain White jurors with Black
relatives; next to one White juror, he wrote: “ ‘Think her
husband is black.’ ” (Ibid.)
Jones directs us to other cases in which courts in this state
and elsewhere have found probative evidence in jury selection
notes.4 Many — though not all — of these cases involve similar
claims of racial bias bolstered by jury selection notes. In one
case, initially tried in 2002 in North Carolina and overturned on
collateral review in 2020, newly disclosed jury selection notes
revealed that prosecutors had described Black veniremembers
in starkly derogatory terms compared with similarly situated
White veniremembers. For example, a prospective Black juror
with a criminal record was labeled a “thug[]” while a White
venireman who prosecutors noted had an “ext[ensive] [criminal]
4
We granted Jones’s request to take judicial notice of several
unpublished opinions and pleadings as relevant to this appeal.
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
record” was described as a “n[e’er] do well.” Similarly,
prosecution notes described a prospective Black juror as a “blk.
Wino — drugs,” but a White veniremember with a drinking
problem as “drinks — country boy — OK.”
In another case, a Georgia court concluded that jury
selection notes contributed to the “undeniable” evidence of
discrimination. (State v. Gates (Ga.Super.Ct., Jan. 10, 2019,
No. SU-75-CR38335) 2019 Ga.Super. LEXIS 420, p. *4 [Order
on Defendant’s Extraordinary Motion for New Trial].)5 In 1977,
Johnny Lee Gates, a Black man, was convicted of murder by an
all-White jury following a three-day trial and sentenced to
death. Jury selection notes revealed that the prosecutor
indicated the race and sex of each prospective juror in his notes,
using the letter W for White prospective jurors and the letter N
to indicate that prospective jurors were Black. The prosecutor
described the Black jurors in derogatory terms and gave every
Black juror the prosecution’s lowest juror rating, while giving
the lowest rating to only one of the 43 prospective White jurors.
In each of these cases, the jury selection notes proved
important in litigating a claim of discrimination many years
after the fact. But as is true of any other type of evidence, jury
selection notes may be relevant to the inquiry even when they
do not contain a smoking gun. Nor are jury selection notes
necessarily relevant only to prove improper motivation; they
5
Because Gates’s trial occurred before Batson, the trial
court applied the standard set forth in Swain v. Alabama (1965)
380 U.S. 202, and therefore considered evidence of systemic
discrimination, including evidence of jury selection notes for
trials other than Gates’s. Although the court found Gates had
demonstrated discrimination in jury selection, the court
ultimately rejected Gates’s claim for procedural reasons.
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PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
may also counter claims of racial bias. For example, in In re
Freeman (2006) 38 Cal.4th 630, the petitioner claimed the
prosecutor had struck prospective jurors he believed were
Jewish. We concluded that the petitioner did not meet his
burden to show improperly motivated strikes in part because
the prosecutor’s notes revealed detailed observations about
individual veniremembers’ characteristics but made neither
explicit nor implicit reference to the religion of prospective
jurors he ultimately excused. (Id. at pp. 642–644.)6
The District Attorney in this case agrees that when jury
selection notes are available, they often prove relevant, and
sometimes dispositive, particularly in adjudicating
Batson/Wheeler claims on postconviction review. But as the
District Attorney correctly notes, neither Foster nor any other
case binding on this court answers the question when, precisely,
jury selection notes must be made available for purposes of the
Batson/Wheeler inquiry.7 We now turn to that question as it is
presented in this case.
6
We note that recording prospective jurors’ race, gender, or
other characteristics may be benign and may also assist in the
evaluation of Batson/Wheeler motions by making a complete
record of the composition of the venire and the seated jury.
7
As explained above, the petitioner in Foster obtained jury
selection notes through a public records request. This case
raises no question about the availability of the notes under
California’s Public Records Act (Gov. Code, § 6250 et seq.).
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Opinion of the Court by Kruger, J.
III.
The question here arises from a request for postconviction
discovery under section 1054.9.8 Section 1054.9 authorizes
postconviction discovery in certain felony cases but identifies
the scope of discoverable materials as those “materials in the
possession of the prosecution and law enforcement authorities
to which the same defendant would have been entitled at time
of trial.” (Id., subd. (c); see id., subd. (a); In re Steele (2004) 32
Cal.4th 682, 690 (Steele).) The District Attorney contends that
Jones is not entitled to jury selection notes because Penal Code
section 1054.6 specifies that, under the statutory discovery
rules, “[n]either the defendant nor the prosecuting attorney is
required to disclose any materials or information which are
work product as defined in subdivision (a) of Section 2018.030 of
the Code of Civil Procedure.” The District Attorney argues the
notes constitute protected work product as defined in Code of
Civil Procedure section 2018.030, subdivision (a) and the court
therefore may not order their disclosure.9
8
We are concerned in particular with postconviction
discovery sought before an order to show cause issues. We
express no view regarding the available scope of discovery after
issuance of an order to show cause. (See In re Scott (2003) 29
Cal.4th 783, 813 [after order to show cause issues, the “scope of
discovery in habeas corpus proceedings has generally been
resolved on a case-by-case basis” and referees may fashion fair
discovery rules to govern the proceedings]; see id. at p. 814.)
9
The District Attorney alternatively suggests that the jury
selection notes are not subject to postconviction discovery orders
because they are not included in the list of mandatory pretrial
discovery materials that Penal Code section 1054.1 requires the
prosecution to provide even absent a disclosure request. But as
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Opinion of the Court by Kruger, J.
The work product doctrine now codified in Code of Civil
Procedure section 2018.030 was initially developed by courts. In
an influential statement of the doctrine, the United States
Supreme Court described the rationale as follows: “[I]t is
essential that a lawyer work with a certain degree of privacy,
free from unnecessary intrusion by opposing parties and their
counsel. Proper preparation of a client’s case demands that he
assemble information, sift what he considers to be the relevant
from the irrelevant facts, prepare his legal theories and plan his
strategy without undue and needless interference.” (Hickman
v. Taylor (1947) 329 U.S. 495, 510–511; see Coito v. Superior
Court (2012) 54 Cal.4th 480, 489–494 (Coito) [recounting the
history of work product doctrine].) When the Legislature later
codified the doctrine, it assigned attorney work product either
absolute or qualified protection, depending on the type of
material at issue. “Absolute protection is afforded to writings
we explained in Steele, postconviction discovery under section
1054.9 is not limited to materials the prosecution had “a
statutory duty to provide” at the time of trial; postconviction
discovery also extends to, among other things, materials “to
which the defendant would have been entitled at time of trial
had the defendant specifically requested them.” (Steele, supra,
32 Cal.4th at pp. 695, 697.) The criminal discovery statutes
expressly recognize that the availability of discovery may be
governed by “other express statutory provisions” and
constitutional mandates. (Pen. Code, § 1054, subd. (e).) In
short, the fact that jury selection notes are not included in Penal
Code section 1054.1 as items of mandatory pretrial discovery,
along with witness lists and defendant statements, does not
mean that the jury selection notes are not discoverable under
section 1054.9. The District Attorney raises no other argument
that the governing statutes preclude the disclosure of the notes,
and we do not consider any statutory arguments that have not
been raised.
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Opinion of the Court by Kruger, J.
that reflect ‘an attorney’s impressions, conclusions, opinions, or
legal research or theories.’ ([Code Civ. Proc.,] § 2018.030,
subd. (a).) All other work product receives qualified protection;
such material ‘is not discoverable unless the court determines
that denial of discovery will unfairly prejudice the party seeking
discovery in preparing that party’s claim or defense or will result
in an injustice.’ (§ 2018.030, subd. (b).)” (Coito, at p. 485.)
The District Attorney asserts that jury selection notes are
writings entitled to absolute protection under Code of Civil
Procedure section 2018.030, subdivision (a) because they reveal
an attorney’s opinions and impressions of potential jurors.
Jones, for his part, argues that the work product doctrine does
not reach opinions and impressions of jurors, as opposed to
opinions and impressions of the legal case. He characterizes the
District Attorney’s opposing view as overly broad and unmoored
from the doctrine’s central purposes — namely, to allow
attorneys to prepare their cases for trial and to prevent their
opponents from free-riding on their efforts. (See Code Civ. Proc.,
§ 2018.020.)
We need not resolve this broad dispute about the reach of
work product protection to answer the question before us, which
concerns one party’s invocation of the work product doctrine to
shield matters it had put in issue during the litigation of the
Batson/Wheeler challenge. Even if we assume that jury
selection notes are protected work product as defined by Code of
Civil Procedure section 2018.030, subdivision (a), we
nonetheless agree with the courts below that the prosecutor in
this case impliedly waived any work product protection when he
justified his peremptory challenges by putting in issue
information the District Attorney now seeks to withhold as
confidential in postconviction discovery.
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Although the work product statute does not directly
address the issue of waiver, it is well established that work
product protection, like other forms of privilege, can be waived
through conduct. (See Ardon v. City of Los Angeles (2016) 62
Cal.4th 1176, 1186 (Ardon); Rico v. Mitsubishi Motors Corp.
(2007) 42 Cal.4th 807; BP Alaska Exploration, Inc. v. Superior
Court (1988) 199 Cal.App.3d 1240, 1254.) Waiver may be found
where the privilege holder, without coercion, discloses a
significant part of the communication to another person. (Labor
& Workforce Development Agency v. Superior Court (2018) 19
Cal.App.5th 12, 35–36; cf. Evid. Code, § 912, subd. (a) [setting
out the same waiver standard for enumerated forms of privilege,
not including work product protection].) An implied waiver may
also be found when a party “has put the otherwise privileged
communication directly at issue and . . . disclosure is essential
for a fair adjudication of the action.” (Southern Cal. Gas Co. v.
Public Utilities Com. (1990) 50 Cal.3d 31, 40, citing Mitchell v.
Superior Court (1984) 37 Cal.3d 591, 609 (Mitchell).)
Much like the work product doctrine itself, this second
theory of implied waiver is premised on the need to protect the
integrity of the judicial proceeding. The cases recognize that
allowing one party to rely on a document to establish key facts
while simultaneously shielding that same document from the
other side works an unfair adversarial advantage.
Considerations of basic fairness accordingly “may require
disclosure of otherwise privileged information or
communications where [a party] has placed in issue a
17
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
communication which goes to the heart of the claim in
controversy.” (Mitchell, supra, 37 Cal.3d at p. 604.)10
Courts have found implied waiver in a variety of litigation
contexts. In Nobles, for example, the United States Supreme
Court rejected an argument that criminal defense counsel could
simultaneously rely on a testifying defense investigator to
impeach the credibility of a critical prosecution witness while
also claiming the investigator’s report was protected by the work
product doctrine. The court explained: “At its core, the work-
product doctrine shelters the mental processes of the attorney,
providing a privileged area within which he can analyze and
prepare his client’s case. But the doctrine is an intensely
practical one, grounded in the realities of litigation in our
adversary system. . . . [¶] . . . Respondent, by electing to
present the investigator as a witness, waived the privilege with
respect to matters covered in his testimony. Respondent can no
more advance the work-product doctrine to sustain a unilateral
testimonial use of work-product materials than he could elect to
testify in his own behalf and thereafter assert his Fifth
Amendment privilege to resist cross-examination on matters
reasonably related to those brought out in direct examination.”
(Nobles, supra, 422 U.S. at pp. 238–240, fn. omitted.)11
10
The Legislature has similarly determined that tendering
a particular issue in a proceeding waives certain privileges.
(See, e.g., Evid. Code, §§ 958, 996, 1016.)
11
The Nobles court explained that waiver “normally” does
not extend to counsel’s use during trial of “notes, documents,
and other internal materials prepared to present adequately his
client’s case.” (Nobles, supra, 422 U.S. at p. 239, fn. 14.) We
likewise affirm that “[w]hat constitutes a waiver with respect to
18
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
Wellpoint Health Networks, Inc. v. Superior Court (1997)
59 Cal.App.4th 110 is also instructive. The plaintiff in Wellpoint
brought an employment discrimination action in which the
employer raised an affirmative defense based on corrective
action it had taken in response to an internal investigation. The
plaintiff sought production of the investigative reports.
Overruling the employer’s claims of privilege, the Court of
Appeal concluded the plaintiff was entitled to the reports. It
reasoned that the “adequacy or thoroughness of a defendant’s
investigation of plaintiff’s claim,” while typically “irrelevant” to
most civil actions, is highly relevant “if the employer chooses to
defend by establishing that it took reasonable corrective or
remedial action.” (Id. at p. 126, italics added.) By raising this
defense, the employer had “inject[ed] into the lawsuit . . . an
issue concerning the adequacy of the investigation,” resulting in
waiver of the work-product doctrine. (Id. at p. 128.) “If a
defendant employer hopes to prevail by showing that it
investigated an employee’s complaint and took action
appropriate to the findings of the investigation, then it will have
put the adequacy of the investigation directly at issue, and
cannot stand on the attorney-client privilege or work product
doctrine to preclude a thorough examination of its adequacy.
The defendant cannot have it both ways. If it chooses this
course, it does so with the understanding that the attorney-
client privilege and the work product doctrine are thereby
waived.” (Ibid.)
work-product materials depends, of course, upon the
circumstances” (ibid.) and do not suggest that an attorney’s
ordinary reliance on notes throughout trial would necessarily
waive work product protections.
19
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
The Court of Appeal in this case, citing Nobles and
Wellpoint, adopted similar reasoning to find implied waiver. It
then went on to liken the prosecutor to a witness who testified
after refreshing his recollection with his notes, citing Evidence
Code section 771. (Jones, supra, 34 Cal.App.5th at pp. 83–84.)
We agree with the District Attorney that section 771 has no
direct application here, since an attorney in a Batson/Wheeler
hearing does not testify as a sworn witness. But the analogy
nonetheless serves. The law requires disclosure of notes used to
refresh a witness’s recollection for much the same reason courts
imply waiver in other contexts: to ensure the basic fairness of
the proceedings where a party has put the substance of
privileged material in issue. (See, e.g., Kerns Constr. Co. v.
Superior Court (1968) 266 Cal.App.2d 405, 411 [an attorney may
not provide a witness with protected documents, “allow a
witness to testify therefrom and then claim work product
privilege to prevent the opposing party from viewing the
document from which he testified”].)
Here, the prosecutor invoked an undisclosed juror rating
system in justifying his use of peremptory challenges at the
second step of the Batson/Wheeler inquiry. Had the prosecutor
instead relied solely on a straightforward listing of juror
characteristics, the prosecutor’s reasons could have been
questioned by the defense and judged against the trial court’s
own observations. But the defense and trial court had no way
of confirming or evaluating the prosecutor’s claims that he used
a race-neutral rating system they had never seen. Unlike an
attorney who simply glances at her or his notes to recall a
particular answer provided during voir dire, for example, a
striking attorney who makes this sort of “testimonial use” of
undisclosed writings gains an unfair adversarial advantage by
20
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
doing so. (Nobles, supra, 422 U.S. at p. 239, fn. 14.) Effectively
the striking attorney has placed in issue information that goes
to the heart of the question before the court, whether there has
been discrimination in jury selection. Under our cases, that
choice is one that constitutes waiver of any claim that the
information may be withheld as protected work product.
The District Attorney protests that there could have been
no effective waiver because any disclosure or invocation of
protected information was coerced. (See Regents of University
of California v. Superior Court (2008) 165 Cal.App.4th 672, 679.)
The District Attorney stresses that an attorney provides a
justification for striking the challenged prospective jurors only
at the request of the court — a request compelled by Batson, and
therefore one that the attorney is hardly free to refuse. All of
this is true, but it hardly follows that a striking attorney must
explain the challenged strikes by invoking an otherwise
confidential rating system she or he believes to be protected
work product.
Here, when the trial court asked the prosecutor to defend
the challenged strikes, the prosecutor did not simply cite
concerns about the prospective jurors’ occupations, volunteer
activities, or other characteristics established through voir dire.
Instead, the prosecutor pointed to the documented results of a
purportedly color-blind numerical rating system devised by the
prosecution and offered detailed explanations regarding the low
scores multiple prosecution team members had given each of the
struck jurors.12 Considering this record of the Batson/Wheeler
12
The District Attorney suggests in reply that any waiver
was “inadvertent,” bringing the notes within the exception for
21
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
hearings at trial and the waiver principles we have discussed,
we conclude that the District Attorney’s assertion of work
product protection is not a basis for overturning the
postconviction trial court’s disclosure order. The point, in the
end, is simple: A striking attorney cannot both stand on such a
rating system and assert privilege over it.13
IV.
For these reasons, we reject the District Attorney’s
argument that work product protection categorically bars
disclosure of jury selection notes in postconviction discovery.
Here there has been an implied waiver of any claim to work
product protections and so the jury selection notes are subject to
disclosure. This is true for notes revealing a clear focus on
impermissible discrimination, such as the notes in Foster, as
well as those that might not, on their own, reveal a
discriminatory purpose but that would tend to support the
Batson/Wheeler challenge when aggregated with other evidence
or notes.
We recognize, however, that disclosure of jury notes, like
disclosure of any other attorney writing, can risk unnecessary
incursion on the confidentiality of attorney work product beyond
the scope of the matter now at issue. Though the notes may
illuminate an attorney’s opinions and impressions of prospective
inadvertent disclosure recognized by Ardon, supra, 62 Cal.4th
1176. The analogy is inapt; in that case, as in other inadvertent
disclosure cases, the disclosures at issue were accidental. That
is not the case here, where the prosecutor made a calculated
decision to provide explanations of his rating system.
13
We express no view on whether, under different
circumstances, there would be a waiver of any work product
protection attaching to jury selection notes.
22
PEOPLE v. SUPERIOR COURT (JONES)
Opinion of the Court by Kruger, J.
jurors — the matter specifically at issue in a Batson/Wheeler
claim — they may also reveal opinions and impressions of the
case and legal strategy.
To the extent the District Attorney raises concerns about
overbroad discovery in this context, the law offers answers.
Attorneys resisting what they view as overbroad discovery
efforts may “make a preliminary or foundational showing that
disclosure would reveal . . . ‘impressions, conclusions, opinions,
or legal research or theories[]’ (§ 2018.030, subd. (a)[])”
unrelated to jury selection, and “[u]pon an adequate showing,
the trial court should then determine, by making an in camera
inspection if necessary, whether absolute work product
protection applies to some or all of the material.” (Coito, supra,
54 Cal.4th at pp. 495–496.) In this way, the trial court may
ensure on a “case by case” basis (id. at p. 495) that necessary
redactions are made to protect core work product that is not
relevant to the Batson/Wheeler challenge at issue.
DISPOSITION
The judgment of the Court of Appeal is affirmed, and the
case remanded for further proceedings not inconsistent with this
opinion.
KRUGER, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
23
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion People v. Superior Court (Jones)
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 34 Cal.App.5th 75Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S255826
Date Filed: December 2, 2021
__________________________________________________________
Court: Superior
County: San Diego
Judge: Joan P. Weber
__________________________________________________________
Counsel:
Summer Stephan, District Attorney, Mark A. Amador, Linh Lam,
Samantha Begovich and Anne Spitzberg, Deputy District Attorneys,
for Petitioner.
Jeff Rubin, Deputy District Attorney (Santa Clara), for California
District Attorneys Association as Amicus Curiae on behalf of
Petitioner.
No appearance for Respondent.
Shelley J. Sandusky, Cliona Plunkett and Rachel G. Schaefer for Real
Party in Interest.
Michael C. McMahon for California Public Defenders Association and
Todd W. Howeth as Amici Curiae on behalf of Real Party in Interest.
Wesley A. Van Winkle for Private Practice Capital Habeas Corpus
Attorneys as Amici Curiae on behalf of Real Party in Interest.
Kristen A. Johnson, Natasha C. Merle, Liliana Zaragoza and
Mahogane C. Reed for NAACP Legal Defense & Educational Fund,
Inc., as Amicus Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Anne Spitzberg
Deputy District Attorney
300 West Broadway, Suite 860
San Diego, CA 92101
(619) 531-3591
Rachel G. Schaefer
Habeas Corpus Resource Center
303 Second Street, Suite 400 South
San Francisco, CA 94107
(415) 348-3800
Natasha Merle
NAACP Legal Defense & Educational Fund, Inc.
40 Rector Street, 5th Floor
New York, NY 10006
(212) 965-2200