A defendant is entitled to discover the prosecution’s jury selection notes under Penal Code section 1054.9 where a postconviction prima facie case of racial bias under Batson/Wheeler has been established. Following an automatic appeal from a 1990 first degree murder conviction and death sentence, Box sought postconviction relief by filing petitions for writ of habeas corpus in both state and federal courts. As part of the postconviction discovery, Box filed a 2022 motion to compel the San Diego County District Attorney’s Office (DA) to produce copies of their jury selection notes. The DA objected on the grounds of work product privilege. The trial court agreed and denied the motion after an in camera review. Box filed a petition for writ of mandate. Held: Granted with directions to vacate the denial order and for the trial court to reconsider the motion based on the standards set forth in the opinion. Defendants who were sentenced to a term of 15 years or more have limited postconviction discovery statutory rights in connection with pending or prospective habeas corpus proceedings and motions to vacate a judgment. (Pen. Code, § 1054.9.) In the Batson/Wheeler context, “there is no absolute work product privilege protecting a prosecutor’s jury selection notes from discovery where the defendant [has] established a prima facie case of purposeful discrimination. (People v. Superior Court (Jones I) (2019) 34 Cal.App.5th 75, 81.) Rather, “[w]here a defendant makes a prima facie case under Batson/Wheeler, the prosecution’s jury selection notes become relevant and discoverable for purposes of stage-three analysis [trial court’s determination of whether the defendant has met the ultimate burden to prove purposeful discrimination].” However, to the extent the People are concerned about the disclosure of notes that would reveal “impressions, conclusions, opinions, or legal research or theories that are ‘unrelated to jury selection,’” a trial court may order an in camera inspection and “ensure that necessary redactions are made on a case-by-case basis” upon an adequate proffer. [Editor’s Notes: (1) The Court of Appeal reaffirmed its ruling in Jones I, which the California Supreme Court did not depublish or disapprove when it considered the discovery of prosecution jury selection notes in People v. Superior Court (Jones II) (2021) 12 Cal.5th 348. (2) Even if such notes were shielded from discovery by the absolute work product privilege, the privilege is waived where the attorney makes “testimonial use” use of the undisclosed notes. (Jones II, supra, 12 Cal.5th 348, 362.) (3) The Court of Appeal disagreed with a number of threshold arguments the People made, including the People’s argument that this was not a third-stage Batson/Wheeler case.]
