Metropolitan News-Enterprise


Tuesday, January 3, 2023


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C.A. Says Its 2019 Decision on Availability of Prosecutor’s Notes Is Still ‘Good Law’

Fact That S.C. Decided the Case on Alternative Ground Does Not Undermine Intermediate Appellate Court’s Opinion, It Declares


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal held Friday that notes a prosecutor took during voir dire are not absolutely privileged under the work product privilege, reiterating a conclusion it reached in 2019 and declaring that its pronouncement was not undermined by the California Supreme Court’s grant of review in that case and its rendering its decision on another ground.

Such notes are sought by Christopher Box who was convicted in San Diego Superior Court in 1990 on three counts of first-degree murder and other offenses and is pursuing habeas corpus relief in the U.S. District Court for the Southern District of California on the ground that Blacks were unlawfully excluded from the jury that tried him. Discovery of the prosecutor’s notes was denied by San Diego Superior Court Judge Howard H. Shore.

The appeals court granted Box’s petition for a writ of mandate. It did not order production of the notes but did remand the case, saying:

“Unless the People articulate a foundational basis for shielding some portion of the jury selection notes from discovery, those materials must be turned over to Box in their entirety.”

Justice William Dato authored Friday’s opinion. Acting Presiding Justice Richard D. Huffman wrote the panel’s April 9, 2019 opinion in People v. Superior Court (Jones), in which Huffman said:

“We are tasked with determining 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.”

He concluded in light of “the importance of avoiding discrimination in jury selection,” the trial judge dd not err in order release of the notes to the defendant’s counsel who was seeking habeas relief.

Huffman also said that if the privilege did exist, it was waived when the prosecutor alluded to the notes in responding to a Batson/Wheeler motion.

The Supreme Court granted review, affirming in 2021, solely on the ground of waiver. Dato wrote: “Absent waiver of work product privilege, must a prosecutor’s jury selection notes be produced in postconviction discovery under Penal Code section 1054.9 to facilitate a Batson/Wheeler challenge? This is an issue we previously addressed in People v. Superior Court (Jones)…(Jones I). In People v. Superior Court (Jones)…(Jones II), the Supreme Court sidestepped the applicability of work product privilege by finding a waiver on the facts of that case. But it did not depublish Jones I, nor did it say anything in Jones II that cast doubt on our reasoning with respect to the general inapplicability of the work product privilege to jury selection notes in the Batson / Wheeler context.

“Accordingly, Jones I remains good law and we reaffirm the correctness of the conclusions we reached in that opinion. Where a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution’s jury selection notes under section 1054.9. Those notes are not categorically shielded from discovery by the absolute work product privilege….To the extent the People maintain that those notes reflect the prosecution’s impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors, they bear the burden to make that foundational proffer and seek appropriate redactions from the trial court.”

He remarked: “It seems unlikely that a prosecutor’s jury selection notes will reveal impressions, conclusions, or opinions about the legal theory of the case, as opposed to impressions about particular jurors.”

The case is Box v. Superior Court (People), 2023 S.O.S. 3.


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