People v. Superior Court

34 Cal.App.5th 75

245 Cal.Rptr.3d 787

The PEOPLE, Petitioner,

v.The SUPERIOR COURT of San Diego County, Respondent;

Bryan Maurice Jones, Real Party in Interest.

D074028

Court of Appeal, Fourth District, Division 1, California.

Filed April 9, 2019

Summer Stephan, District Attorney, Mark A. Amador and Samantha Begovich, Deputy District Attorneys, for the Petitioner.

No appearance for Respondent.

Habeas Corpus Resource Center, Shelley J. Sandusky, Cliona Plunkett and Rachel Gabrielle Schaefer, for Real Party in Interest.

HUFFMAN, Acting P. J.

The San Diego County District Attorney petitions for a writ of mandate and/or prohibition challenging the superior court's order directing the district attorney to turn over to defense habeas counsel the prosecution's jury selection notes, contending the materials are privileged work product not subject to discovery. We are called upon to determine whether these notes, when referenced during a Batson / Wheeler¹ hearing by a prosecutor offering a neutral reason for exercising a peremptory strike, are discoverable by the defendant as part of postconviction writ of habeas corpus discovery. We conclude they are, and we deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In 1994, a jury convicted Bryan Maurice Jones of the first degree murders of JoAnn S. and Sophia G. ( Pen. Code,² §§ 187, 189 ), attempted murder of Maria R. and Karen M. ( §§ 664, 187 ), and the forcible rape, sodomy and oral copulation of Karen M. (§§ 261, subd. (a)(2), 286, subd. (c), 288a, subd. (c).) The jury also sustained an allegation that Jones used a deadly weapon in the attempt to murder Maria R. (§ 12022, subd. (b)), along with special circumstance allegations: Jones murdered JoAnn S. and Sophia G. during the commission or attempted commission of the crime of sodomy (§ 190.2, subd. (a)(17)), and he committed multiple murders (§ 190.2, subd. (a)(3)). The jury sentenced Jones to death (§ 190.1 et seq.), and the judgment was affirmed on appeal. ( People v. Jones (2013) 57 Cal.4th 899, 161 Cal.Rptr.3d 295, 306 P.3d 1136.)

During jury selection, the prosecution used peremptory challenges to excuse two African-American jurors, and defense counsel objected. ( People v. Jones, supra, 57 Cal.4th at p. 916, 161 Cal.Rptr.3d 295, 306 P.3d 1136.) The court determined the defense attorney made a prima facie showing of racial bias. ( Id. at p. 917, 161 Cal.Rptr.3d 295, 306 P.3d 1136.) The prosecutor offered race-neutral explanations for excusing the jurors, citing in part a numerical score for each prospective juror that the prosecution team had devised. ( Id. at pp. 917-918, 161 Cal.Rptr.3d 295, 306 P.3d 1136.) The trial court found the explanations credible and permitted the strikes.

The defense attorney made a second Batson / Wheeler challenge after the prosecutor used a peremptory strike on a third African-American female. The prosecutor again referenced the numerical analysis, which had been conducted by three people in the office. The court offered its opinion of the juror, consistent with the reasoning provided by the prosecutor, and denied the Batson / Wheeler motion.

On appeal, Jones challenged the credibility and genuineness of the race-neutral explanations, and the Supreme Court deferred to the trial court's assessment. ( Id. at p. 919, 161 Cal.Rptr.3d 295, 306 P.3d 1136.) Jones also argued a third juror was improperly excused based on race. ( Id. at pp. 919-920, 161 Cal.Rptr.3d 295, 306 P.3d 1136.) The Supreme Court reviewed the record independently regarding the third African-American juror and determined there was ample evidence that no prima facie case of group bias had been made. ( Ibid . )

Subsequently, in his amended petition for writ of habeas corpus, No. S217284, Jones alleged ineffective assistance of counsel because his trial counsel failed to raise a Batson / Wheeler error for the prosecutor's exercise of peremptory challenges against women, noting 13 of the prosecution's 17 peremptory strikes were against prospective female jurors. Jones further alleged his trial counsel was ineffective for failing to raise a Batson / Wheeler error on the ground that four of those women were also African-American.

Following Jones's direct appeal, pursuant to section 1054.9, his habeas attorney sought postconviction discovery of the jury selection notes.³ The trial court granted the request in April 2018. In May, the district attorney filed a writ of mandate and/or prohibition seeking a stay and requesting we vacate the trial court's order, which we denied. The district attorney appealed. The Supreme Court granted the petition for review and transferred the matter to this court. We vacated our order denying the writ of mandate and/or prohibition and issued an order to show cause returnable why petitioner is not entitled to the relief requested. Jones filed a formal return to the order to show cause.

DISCUSSION

ALegal Principles

We review a trial court's ruling on discovery matters under an abuse of discretion standard. ( People v. Ayala (2000) 23 Cal.4th 225, 299, 96 Cal.Rptr.2d 682, 1 P.3d 3.) An abuse of discretion is shown when the trial court applies the wrong legal standard. ( Zurich American Ins. Co. v. Superior Court (2007) 155 Cal.App.4th 1485, 1493, 66 Cal.Rptr.3d 833.) The burden falls on the complaining party to establish an abuse of discretion, and we do not substitute our own opinion for the trial court's, absent a showing that there has been a miscarriage of justice. ( Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366, 51 Cal.Rptr.3d 637 ( Kennedy ), citing Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)

A defendant is entitled to materials to which he would have been entitled at trial, whether or not he possessed those materials at the time of trial. ( In re Steele (2004) 32 Cal.4th 682, 693, 695-696, 10 Cal.Rptr.3d 536, 85 P.3d 444 ( Steele ); § 1054.9, subd. (b).) This includes materials the prosecution did not provide at trial because there was no specific defense request but would have been obligated to provide had there been one. ( Steele , at pp. 696-697, 10 Cal.Rptr.3d 536, 85 P.3d 444.) The defendant bears the burden of demonstrating the materials requested are ones to which he would have been entitled to discovery at the time of trial. (See Kennedy, supra, 145 Cal.App.4th at p. 366, 51 Cal.Rptr.3d 637.) In issuing the order to turn over the jury selection notes, the trial court necessarily concluded Jones met his burden of demonstrating he was entitled to them at the time of trial. Thus, to demonstrate an abuse of discretion in this case, the district attorney must demonstrate that at the time of trial, the defendant was not entitled to the jury selection notes. (Cf. ibid. )

BBatson/Wheeler Challenges

Because Jones's request for postconviction discovery rests on potential allegations of a Batson / Wheeler violation, consideration of the three-step Batson framework is necessary. In the first stage of a Batson / Wheeler challenge, the defendant must make out a prima facie case that there is an inference of a discriminatory purpose from the prosecutor's use of peremptory strikes. ( People v. Lenix (2008) 44 Cal.4th 602, 612-613, 80 Cal.Rptr.3d 98, 187 P.3d 946 ( Lenix ).) The burden then shifts to the prosecution to offer race- or gender-neutral justifications for the strikes in the second stage. ( Ibid . ) At the third stage, the trial court evaluates whether the race- or gender-neutral explanations are credible. ( Snyder v. Louisiana (2008) 552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Ed.2d 175 ( Snyder ); Miller-El v. Cockrell (2003) 537 U.S. 322, 328-329, 123 S.Ct. 1029, 154 L.Ed.2d 931.) "[I]n considering a Batson objection, or in reviewing a ruling claimed to be Batson error, all of the circumstances that bear upon the issue of racial animosity must be consulted." ( Snyder, at p. 478, 128 S.Ct. 1203, citing Miller-El v. Dretke (2005) 545 U.S. 231, 239, 125 S.Ct. 2317, 162 L.Ed.2d 196.) " ‘Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial ... evidence of intent as may be available.’ " ( Foster v. Chatman (2016) ––– U.S. ––––, 136 S.Ct. 1737, 1748, 195 L.Ed.2d 1 ( Foster ), citing Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252, 266, 97 S.Ct. 555, 50 L.Ed.2d 450.)

CWork Product

There is no constitutional basis for work product privilege; thus, "any protection in California ... must be based on state common or statutory law." ( Izazaga v. Superior Court (1991) 54 Cal.3d 356, 380, 285 Cal.Rptr. 231, 815 P.2d 304.) The work product privilege is codified in the Code of Civil Procedure; it protects from discovery "writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories." ( Code Civ. Proc., § 2018.030, subd. (a).) In the civil context, other work product is discoverable if the court determines its protection would unfairly prejudice the party seeking discovery. ( Code Civ. Proc., § 2018.030, subd. (b).) However, "[t]hrough its reference to the Code of Civil Procedure 2018.030, subdivision (a), Penal Code section 1054.6 ‘ "expressly limits the definition of ‘work product’ in criminal cases to ‘core’ work product, that is, any writing reflecting ‘an attorney's impressions, conclusions, opinions, or legal research or theories.’ " ’ " ( People v. Zamudio (2008) 43 Cal.4th 327, 355, 75 Cal.Rptr.3d 289, 181 P.3d 105, italics omitted; Izazaga, at p. 407, 285 Cal.Rptr. 231, 815 P.2d 304.) This includes materials compiled by investigators and other agents in preparation for trial. ( People v. Collie (1981) 30 Cal.3d 43, 59, 177 Cal.Rptr. 458, 634 P.2d 534 ( Collie ).)

California's work product protection exists to encourage attorneys to thoroughly prepare their cases for trial and to investigate the favorable and unfavorable aspects of their cases, as well as to prevent attorneys from "taking undue advantage of their...