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Name: Kling v. Superior Court
Case #: B208748
Court: CA Court of Appeal
District 2 DCA
Division: 6
Opinion Date: 08/31/2009
Subsequent History: rev. granted 11/10/09 (S176171)

The prosecution plays a limited role in hearings conducted pursuant to Penal Code section 1326. In People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, the California Supreme Court held that the prosecution must receive notice of a hearing pursuant to Penal Code section 1326 to determine whether a defendant is entitled to receive subpoenaed documents pursuant to a subpoena duces tecum. It left open the question of what extent the prosecution may participate in the hearing. Here, Kling sought a writ of prohibition to compel the superior court to vacate its order granting the prosecutor’s motion to unseal reporters’ transcripts of the in camera hearing conducted pursuant to section 1326, subdivision (c). The appellate court granted the petition. The prosecution has a limited role in 1326, subdivision (c) proceedings. Absent exceptional circumstances, the prosecution may not know who the defense has subpoenaed or what documents were subpoenaed unless the defense uses them at trial. In that case, the prosecution is entitled to discovery pursuant to reciprocal discovery provisions. The enactment of Proposition 9, “The Victims Bill of Rights Act of 2008,” does not provide authority for the trial court’s order.