Filed 1/16/18 Jones v. Superior Court CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

ORIGINAL PROCEEDINGS; petition writ of mandate. David A. Gunn, Judge. Petition granted.

Habeas Corpus Resource Center, Miro F. Cizin, Alison Bernstein, E. Anne Hawkins, Jennifer L. Molayem and Lisa Ma, for Petitioner.

No appearance for Respondent.

Michael A. Hestrin, District Attorney, Alan D. Tate, Deputy District Attorney, for Real Party in Interest.

Petitioner challenges the trial court’s denial of his motion for postconviction discovery under Penal Code section 1054.9. Because we agree that petitioner has shown he would have been entitled to the only discovery item in controversy had he requested it at the time of trial, we grant the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Albert Jones, is serving a sentence of death after a jury convicted him of capital murder in 1996. Petitioner is Black, and the two murder victims were both White. Additional facts regarding the crimes are irrelevant to the resolution of this petition, so we do not include them.

During jury selection, petitioner’s counsel objected to the exclusion of multiple Black prospective jurors under Batson/Wheeler.[1] After clarifying the basis for the Batson/Wheeler challenge with defense counsel, the trial court asked if the People wanted to be heard, and the prosecutor responded: “I’m not prepared at this time.” He then indicated the People had tried “to keep sound, good solid citizens that were minorities that were on th[e] panel,” but defense counsel wanted to stipulate to excuse certain Black jurors. The prosecutor noted there was still one Black juror on the panel, expressed an opinion that petitioner had not stated a prima facie Batson/Wheeler challenge, and concluded with: “I do have some—nonetheless do have some notes. I just don’t have my notes on me.” After indicating his notes were likely on his desk, the prosecutor said he would “like to take [the Batson/Wheeler challenge] up after” selecting the alternate jurors.

When the Batson/Wheeler proceedings resumed, the prosecutor offered many details about his reasoning for excluding three particular prospective jurors. For example, he explained that “the People looked . . . very, very closely” at one prospective juror’s response to Question 20. When watching that prospective juror, the prosecutor was bothered by a “gigantic pause [during which he] could have counted to 25.” With respect to a second prospective juror, the prosecutor expressed concerns that his adult children were unemployed, that the prospective juror might cause disputes about the timing of vehicular traffic and the effect of morning sunlight because he was a bus driver, and that the prospective juror appeared to be buying into a defense theory about scapegoating. Finally, the prosecutor “was real concerned about” the final prospective juror’s leaving a question blank. The same prospective juror struck him as “defensive,” and she attended a church that was “constantly controversial.”

After the prosecutor concluded his comments about the challenged prospective jurors, the trial court expressly stated that petitioner had stated a prima facie case under Batson/Wheeler. However, it denied petitioner’s challenge because “it appears that the reasons that these persons were excluded from the jury was [sic] for nonracial purposes and racially neutral purposes.”

A jury convicted petitioner of two counts of first degree murder with multiple special circumstances findings. He was sentenced to death on September 20, 1996. On January 31, 2011, the California Supreme Court affirmed petitioner’s conviction, expressly rejecting arguments concerning his Batson/Wheeler challenge. (People v. Jones (2011) 51 Cal.4th 346, 356-369.)

On January 24, 2017, petitioner, with representation from the Habeas Corpus Resource Center, filed a motion for postconviction discovery under both Penal Code section 1054.9 and the Eighth and Fourteenth Amendments to the United States Constitution. As relevant to this petition, the motion sought “the jury selection notes created by Deputy District Attorney Richard Alan Bentley and other members of the District Attorney’s team in preparation for and during jury selection in the instant case and any documents, including but not limited to training manuals and memoranda, relating to the jury selection policies and practices of the Riverside County District Attorney’s Office up to and through the time of Mr. Jones’s trial.”

The People filed written opposition to petitioner’s motion. In conjunction with their brief, they submitted a declaration from the attorney assigned to handle petitioner’s request for postconviction discovery. He described an e-mail to defense counsel in which he “reiterated that [he] had not invoked privilege for anything in the District Attorney’s prosecution file, because [he] had permitted her to view the entire contents and dispute any of [his] determinations as to what was or was not discoverable under Penal Code section 1054.9.” The brief opposing the motion acknowledged that petitioner had argued against application of the work product privilege to the trial prosecutor’s jury selection notes. However, the People made no arguments in favor of applying that privilege, instead arguing that no production of evidence could be required because petitioner had not made a prima facie showing of race-based discrimination during voir dire and because he could only speculate as to whether the jury selection materials might be favorable.

The trial court denied petitioner’s motion for postconviction discovery on February 24, 2017. During the hearing, petitioner’s counsel indicated an intention to turn to “the privilege issue on the jury selection notes.” The prosecutor interjected: “Your Honor, maybe I can short circuit this. [¶] . . . [¶] We haven’t invoked the privilege on the jury selection materials. That might be something that we invoke in the future if there’s an actual hearing following the filing of a habeas corpus petition.” The following exchange then occurred:

“[PETITIONER’S COUNSEL]: . . . Your Honor, [the prosecutor’s] current stance that he is not asserting privilege, I would submit that that is a waiver of privilege in this circumstance.

“THE COURT: Well, they’re not waiving privilege.”

During the course of arguing petitioner’s entitlement to the jury selection notes, his counsel referred the trial court to Evidence Code 771, which, she argued, would have obligated the trial prosecutor to produce his notes for inspection at the time of trial because they had refreshed his recollection. The trial court responded, “That’s where we would disagree.”

The March 10, 2017 petition in this court timely followed the denial of petitioner’s motion. (See, e.g., Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695, 701 [mandamus petitions should be filed within 60 days of the orders they challenge].) In a footnote, the petition asserted that Evidence Code section 771, which governs writings used to refresh a witness’s recollection, would have obligated the trial prosecutor to produce the jury selection notes had defense counsel requested them at trial.

We requested an informal response from the People. Our order contained the following specific briefing request: “The parties are specifically directed to address whether defense counsel at trial could have received the prosecutor’s jury selection notes, had he asked for them, under either Evidence Code section 771 or the other authorities cited in the petition, and what bearing these conclusions have on the discoverability of the prosecutor’s jury selection notes under Penal Code section 1054.9. If the People are asserting work product or other privilege as to the jury selection notes, they are to provide authority allowing them to continue asserting privilege at this juncture.”

The People filed an informal response and, as permitted by our order requesting an informal response, petitioner filed a reply. After reading each of these briefs, we issued an order to show cause.

DISCUSSION

Petitioner’s primary assertion is that federal equal protection principles require the trial court to grant his request for the trial prosecutor’s jury selection notes. He asks us to extend the framework developed to allow discovery on a claim for discriminatory prosecution (e.g. United States v. Armstrong (1996) 517 U.S. 456 (Armstrong)) to his claim that discrimination occurred in the process of selecting the jury. Mindful that it is better to avoid “the unnecessary resolution of constitutional questions” (People v. Garcia (2017) 2 Cal.5th 792, 804), we decline to do so. Instead, we now explain why, in the context of a Batson/Wheeler challenge, Evidence Code section 771 would have entitled petitioner to inspection of the prosecutor’s jury selection notes at the time of trial, and also why that means petitioner is now entitled to the same inspection under Penal Code section 1054.9.

“[Penal Code s]ection 1054.9 allows inmates facing sentences of life or life without the possibility of parole who are prosecuting a writ of habeas corpus or a motion to vacate the judgment to demand the production of postconviction discovery. [Citation.] If such an inmate makes ‘a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful,’ the trial court ‘shall’ order that ‘discovery materials’ be made available to the inmate. [Citation.] In essence, ‘If [a] showing [that defendant unsuccessfully sought discovery from his or her trial counsel] is made, the defendant is entitled to discovery.’ [Citation.]

“In the context of a [Penal Code] section 1054.9 request, ‘ “discovery materials” means materials in the possession of the prosecution and law enforcement authorities to which the . . . defendant would have been entitled at time of trial.’ [Citation.] More specifically, an inmate who can show unsuccessful efforts to obtain items from trial counsel[[2]] is entitled to receive discovery materials that ‘either (1) the prosecution did provide at time of trial but have since become lost to the defendant; (2) the prosecution should have provided at time of trial because they came within the scope of a discovery order the trial court actually issued at that time, a statutory duty to provide discovery, or the constitutional duty to disclose exculpatory evidence; (3) the prosecution should have provided at time of trial because the defense specifically requested them at that time and was entitled to receive them; or (4) the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them.’ ” (Davis v. Superior Court (2016) 1 Cal.App.5th 881, 885-886 (Davis), italics added.)

A motion under Penal Code section 1054.9 may be made in anticipation of filing a petition for habeas corpus, but before the petition is actually filed. (In re Steele (2004) 32 Cal.4th 682, 691 (Steele).) We review Penal Code section 1054.9 rulings under the abuse of discretion standard. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366.)

The People argue that Penal Code section 1054.9 discovery is limited to what would be available under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and Penal Code section 1054.1. We reject this suggestion as having been refuted by the Supreme Court in Steele, supra, 32 Cal.4th at pages 695-696. Petitioner asserts that the trial prosecutor’s jury selection notes are Brady material and subject to disclosure by a Penal Code section 1054.9 motion on that basis. Since we have not been provided with those notes, whether they should be provided to petitioner under Brady is not a conclusion that this court can reach on the record before it. While it is not disputed that the jury selection notes exist, petitioner does not provide any support for the contention that the People had a duty to disclose the notes because they contain evidence favorable to the defense. (See City of Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 7 [under Brady due process requires prosecution to disclose evidence that is favorable to the accused].) The People are correct that speculation as to the contents of the notes does not support disclosure under Penal Code section 1054.9, but only on a Brady theory. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 900.)

The salient issue in this petition is whether the trial prosecutor’s notes fall into the category of items “ ‘the prosecution had no obligation to provide at time of trial absent a specific defense request, but to which the defendant would have been entitled at time of trial had the defendant specifically requested them.’ ” (Davis, supra, 1 Cal.App.5th at p. 886.) Petitioner argues that, had his trial attorney demanded the trial prosecutor’s notes after he recounted so many details about why he peremptorily excused three Black jurors, Evidence Code section 771 would have obligated production of the notes. Subdivision (a) of Evidence Code section 771 reads: “Subject to subdivision (c),[[3]] if a witness, either while testifying or prior thereto, uses a writing to refresh his memory with respect to any matter about which he testifies, such writing must be produced at the hearing at the request of an adverse party and, unless the writing is so produced, the testimony of the witness concerning such matter shall be stricken.”

The People assert that this court should not consider petitioner’s argument concerning Evidence Code section 771 because it was buried in a footnote. While we undoubtedly have discretion to disregard arguments that are “perfunctorily asserted without any analysis or argument in support” (People v. Barnett (1998) 17 Cal.4th 1044, 1111, fn. 44), we will not exalt form over function to such a degree that we ignore the portion of the petition we found most persuasive for the reasons to which we turn next. We explicitly requested briefing on the applicability of Evidence Code section 771, and four separate briefs, two by each party, made arguments regarding that statute. (See, e.g., Gov. Code, § 68081; People v. Garcia (2002) 97 Cal.App.4th 847, 854 [“When appropriate, the court always has the option of requesting supplemental briefing on any issue, raised or not by the briefs, the court believes might be dispositive.”].) Since the People received notice of our interest in exploring the applicability of Evidence Code section 771 to the facts of this case, we see no bar to our reliance on that statute even though the petition only obliquely argued petitioner’s right to relief under that statute.

The People argue that Evidence Code section 711 cannot apply here because the trial prosecutor was not a “witness” who was “testifying.” (Evid. Code, § 771, subd. (a).) We note, however, that the People have offered a definition of neither “witness” nor “testify.” The first definition of “witness” offered in Black’s Law Dictionary is, “One who sees, knows, or vouches for something.” (Black’s Law Dict. (7th ed. 2003) p. 1294, col. 2.) The trial prosecutor qualified as a “witness” under this definition, at least; after all, he vouched for his own reasoning when he explained to the trial court why he excused three Black jurors.

The other definition of “witness” in Black’s Law Dictionary is, “One who gives testimony under oath or affirmation (1) in person, (2) by oral or written deposition, or (3) by affidavit.” (Black’s Law Dict. (7th ed. 2003) p. 1294, col. 2.) This is consistent with Evidence Code section 710, which, except in cases not relevant here, requires an oath of “[e]very witness before testifying.” In this case, the record shows the trial prosecutor did not take an oath before giving his reasons for excluding Black jurors. However, the speaker was an attorney. “An attorney is an officer of the court, and in presenting matters to the court may employ only such means as are consistent with the truth, and may not mislead the court in any fashion. (Bus. & Prof. Code, § 6068, subds. (b) and (d); Rule 7–105, subd. (1), Rules of Prof. Conduct.)” (Bellm v. Bellia (1984) 150 Cal.App.3d 1036, 1039 (dis. opn. of Haning, J.).) Even assuming that Evidence Code section 771 can only apply to a person who has taken an oath, here the purpose behind the oath requirement was satisfied at least in part by the speaker’s status as an attorney addressing the court.

More importantly, we believe that because the discovery here at issue concerns a Batson/Wheeler challenge, the prosecutor is essentially a witness (indeed effectively the only witness) as that term is used in Evidence Code section 771. As our Supreme Court has recently observed, a Batson/Wheeler motion involves a three-step process. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1158.) Once the moving party has demonstrated a prima facie case and the opponent has provided a neutral basis for the challenge, the court must decide whether the moving party has proven purposeful discrimination. (Ibid.) “At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ‘ “among other factors, the prosecutor’s demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy.” ’ [Citation.] To satisfy herself that an explanation is genuine, the presiding judge must make ‘a sincere and reasoned attempt’ to evaluate the prosecutor’s justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor’s examination of panelists and exercise of for-cause and peremptory challenges. [Citation.]” (Id. at pp. 1158-1159.)

In this case, as in all cases involving a Batson/Wheeler challenge, resolution of the issue depended entirely on the reasons the prosecutor gave for recusing the challenged jurors. Moreover, the trial prosecutor was the only source of information regarding his motivations other than his notes. The Evidence Code is “to be liberally construed with a view to effecting its objects and promoting justice.” (Evid. Code, § 2.) Especially in the face of a claim as serious as petitioner’s allegation that the prosecutor violated the United States Constitution by engaging in discrimination on the basis of race when selecting the jury, it seems to us that the ends of justice are best promoted by allowing petitioner the opportunity to view any writing that refreshed the recollection of the person who gave the only evidence submitted in opposition to his Batson/Wheeler challenge. We therefore find that, on the facts of this case and for purposes of Evidence Code section 771, the trial prosecutor became the equivalent of a testifying witness when he stated his reasons for excusing the three Black jurors in response to petitioner’s Batson/Wheeler challenge.

We are not dissuaded from this conclusion by the People’s assertion at oral argument that Evidence Code section 771 has never been applied to unsworn statements in 150 years.[4] Batson v. Kentucky, supra, 476 U.S. 79 was not decided until 1986 and, perhaps more importantly in the context of this case, Penal Code section 1054.9 was not enacted until 2002. As laws evolve and new laws are enacted, the jurisprudence concerning those changes must necessarily adapt.

Next, the People argue Evidence Code section 771 cannot apply because there is no evidence the trial prosecutor consulted his notes before providing his reasons for excluding the three Black jurors. We again disagree. As we described ante, the trial prosecutor’s immediate response when asked to respond to petitioner’s Batson/Wheeler challenge was, “I’m not prepared at this time.” After accusing defense counsel of contributing to the lack of Black jurors, the trial prosecutor then referenced his notes and, after indicating they were on his desk, said he would rather take up the Batson/Wheeler challenge “after.” When the Batson/Wheeler proceedings resumed, it appeared his recollection had been refreshed by something, because he was able to recount numerous specific facts about each of the jurors he had allegedly excused for improper reasons. The only thing the record identifies as a source that refreshed his recollection is the notes that were on the trial prosecutor’s desk. We therefore infer that the trial prosecutor did in fact refresh his recollection with his notes. At the very least, the People have presented no evidence to the contrary, instead attempting to capitalize on the lack of an express statement that the trial prosecutor had looked at his notes. In the absence of another inference we could reasonably draw, we find, based on the record before us, that the trial prosecutor refreshed his recollection with his jury selection notes before giving the trial court his reasons for excusing the three Black jurors.

In the context of the Batson/Wheeler challenge, Evidence Code section 771, subdivision (a), would have required the trial prosecutor to offer his jury selection notes for inspection upon request because he was a witness who testified after using those notes to refresh his recollection. Since the record before us shows that Evidence Code section 771, subdivision (a), would have applied in this case at the time of trial, petitioner was entitled to the trial prosecutor’s jury selection notes under Penal Code section 1054.9. (Davis, supra, 1 Cal.App.5th at p. 886.) The trial court abused its discretion in disregarding Evidence Code section 771 and finding otherwise.

The People contend that, even if we order production of the trial prosecutor’s jury selection notes because of how Evidence Code section 771 would have applied at trial, we can order inspection but not copying of the notes. (Evid. Code, § 771, subd. (b) [“If the writing is produced at the hearing, the adverse party may, if he chooses, inspect the writing, cross-examine the witness concerning it, and introduce in evidence such portion of it as may be pertinent to the testimony of the witness.”].) This contention ignores the role of Penal Code section 1054.9, which is the statute that, under our analysis, entitled petitioner to request postconviction discovery. Penal Code section 1054.9 allows petitioner “reasonable access” to “discovery materials” and requires that a defendant bear or reimburse the costs of copying. (Pen. Code. § 1054.9, subds. (a), (d).) Therefore, even if Evidence Code section 771 does not authorize copying the trial prosecutor’s jury selection notes (and we express no opinion on whether it does), Penal Code section 1054.9 does appear to allow such copying.

The People’s remaining arguments are also unpersuasive. First, they contend, in a global sense, that petitioner can only be entitled to the jury selection notes if he states a prima facie case on a new petition for habeas corpus. As the People see it, “[p]etitioner’s request for discovery of the prosecutor’s jury selection notes is premature” because no court has issued an order to show cause on a habeas petition. This argument fails because Penal Code section 1054.9 partially abrogated “the general rule is that a person seeking habeas corpus relief from a judgment of death is not entitled to postconviction discovery unless and until a court issues an order to show cause.” (People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 528 (Morales).) “Under current law . . . discovery is available as a matter of right under Penal Code section 1054.9, provided the motion satisfies the statutory requirements as explicated in Steele, supra, 32 Cal.4th at page 697. The statute imposes no constraint on the timing of the motion, other than that it occur after sentencing and in the prosecution of a postconviction writ of habeas corpus.” (Id. at p. 531.)

We also reject any suggestion that petitioner can no longer seek evidence supporting his Batson/Wheeler claim because the California Supreme Court has already rejected that claim. We acknowledge that a petitioner on habeas corpus may not ordinarily raise issues that were rejected on appeal. (See, e.g., In re Waltreus (1965) 62 Cal.2d 218, 225.) We, however, are not being asked to rule on a petition for habeas corpus; the only question before us is whether the trial court properly denied petitioner’s motion for postconviction discovery. We are also aware that a defendant requesting discovery under Penal Code section 1054.9 need not demonstrate the materiality of the evidence he or she seeks. (Barnett v. Superior Court, supra, 50 Cal.4th at pp. 900-901.) Petitioner therefore need not show that the habeas petition he plans to file will succeed.

Finally, the People contend that neither Penal Code section 1054.9 nor Evidence Code section 771 pierces the attorney work product privilege, which, they say, prevents discovery of the trial prosecutor’s jury selection notes. We offer no opinion on whether or to what extent the work product privilege applies, since we find that in this case the People have waived this argument.

As we previously stated, the prosecutor assigned to petitioner’s postconviction discovery motion told defense counsel in an e-mail that he was not asserting work product privilege as to anything in the People’s file. At the hearing from which this petition arises, he explicitly told the court: “We haven’t invoked the privilege on the jury selection materials. That might be something that we invoke in the future if there’s an actual hearing following the filing of a habeas corpus petition.” In other words, in the trial court the People explicitly waived the privilege they now try to assert here.

Our order requesting an informal response instructed the People to provide authority allowing them to assert the work product privilege after their waiver in the trial court. The return offers the following response: “In the proceeding below, the prosecution did not invoke the work product privilege as a defense to disclosure of this information in post-conviction discovery, and respondent court did not address the application of privilege, but expressly found real party did not waive any privilege claim.[[5]] (Pet. Exh. 5, at p. 179.) As such, the question of the application of the work-product or any other privilege is not properly before this Court.” The People further contend that “the issue below was the scope of Penal Code section 1054.9, and there was absolutely no California authority holding that jury selection notes are discoverable at the time of trial, and therefore the issue of whether the notes were privileged or not was premature.”

We understand the People to argue they cannot have waived the work product privilege with respect to the jury selection notes because the time to assert those privileges does not arise until petitioner is found to be entitled to discovery. To a large extent, this position appears intertwined with the People’s repeated suggestion that petitioner could only be entitled to discovery if he stated a prima facie case on habeas. As we have already explained, this suggestion is incorrect, because Penal Code section 1054.9 is an exception to the default rule on which the People rely.

Moreover, the People had ample notice that Penal Code section 1054.9 would authorize discovery in anticipation of the filing of a habeas petition at the time of the February 2017 hearing on petitioner’s motion. Both Morales, which was decided immediately before the hearing on petitioner’s motion, and Steele, decided in 2004, had clearly held that Penal Code “[s]ection 1054.9 modifies [the rule from People v. Gonzalez (1990) 51 Cal.3d 1179 (Gonzalez) that a postconviction defendant must state a prima facie case on habeas corpus to be entitled to postconviction discovery].” (Steele, supra, 32 Cal.4th at p. 691.) Steele had also explicitly held that the actual filing of a petition for habeas corpus was not a prerequisite to discovery under Penal Code section 1054.9. (Ibid.) Consequently, there was no valid basis for the People’s expectation that no discovery at all was available to petitioner at the time of the hearing on his motion.

On a more practical level, the People had no reason to think any objections they had to production could be postponed until after the hearing on petitioner’s motion. That motion cited Penal Code section 1054.9, which authorizes a court to “order that the defendant be provided reasonable access to” discovery materials. (Pen. Code, § 1054.9, subd. (a).) In addition, the motion asked the trial court to “issue an order requiring the prosecution to produce to counsel for [petitioner] the items described [in the motion] within sixty (60) days of the date of the Court’s order.” It is apparent, then, that petitioner’s motion sought the actual production of the trial prosecutor’s jury selection notes, rather than simply debate regarding the scope of Penal Code section 1054.9.

“Waiver of work product protection, though not expressly defined by statute, is generally found under the same set of circumstances as waiver of the attorney-client privilege—by failing to assert the protection, by tendering certain issues, and by conduct inconsistent with claiming the protection.” (McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th 1229, 1239.) Here, the People did not just fail to assert work product privilege as to a discovery item they were asked to produce; they explicitly told the trial court they were not asserting that privilege at precisely the time when petitioner was requesting production of items the People say are privileged. The issue is therefore waived, and we do not pass on whether the trial prosecutor’s jury selection notes are, as the People contend, “a prime example of attorney work product.”

In the return, the People ask us to order the trial prosecutor’s jury selection notes inspected in camera by the trial court if we find they are discoverable under Penal Code section 1054.9. Petitioner made the same suggestion in the petition and does not address the issue in the traverse. Despite the parties’ apparent agreement on this approach, we deny the People’s request for in camera review.

In essence, we do so because we are unaware of a privilege or other protection on account of which the trial court would not simply release the entirety of the trial prosecutor’s jury selection notes. As we have now explained, the People’s position that petitioner could not be entitled to any discovery unless and until he stated a prima facie case on habeas corpus has been legally incorrect at least since Steele was decided in 2004. The work product privilege is the only other bar the People erect to production of the jury selection notes on the theory that production would have been required at the time of trial under Evidence Code section 771, but, as we have also now explained, that privilege has been waived. We are mindful that the conservation of judicial resources[6] is an important consideration when deciding judicial policy (see, e.g., International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 620), and also that, “[t]he law neither does nor requires idle acts” (Civ. Code, § 3532). Because we see no purpose that would be served by ordering the trial prosecutor’s jury selection notes inspected in camera, we decline to make such an order.

Pennsylvania v. Ritchie (1987) 480 U.S. 39 (Ritchie), the case on which the People rely when arguing in favor of in camera review, is distinguishable. There, a father was charged with committing various sex offenses against his 13-year-old daughter. (Id. at p. 43.) The victim had reported the alleged crimes to police, who referred the matter to “Children and Youth Services (CYS), a protective service agency charged with investigating cases of suspected mistreatment and neglect.” (Ibid.) The defendant tried to subpoena CYS’s file on the victim, but the trial court refused to allow the discovery. (Id. at p. 44.) On appeal from his conviction on all counts, the defendant argued the confrontation clause of the United States Constitution required disclosure of the entire CYS file. (Id. at p. 45.) The intermediate appellate court agreed in part and ordered the file inspected in camera by the trial court, which was to “release only the verbatim statements made by the daughter to the CYS counselor.” (Ibid.) However, the Pennsylvania Supreme Court granted broader relief and ordered that the defendant, “through his lawyer, is entitled to review the entire file to search for any useful evidence.” (Ibid.) The United States Supreme Court agreed the defendant should be allowed some access to the CYS file but held that: “An in camera review by the trial court will serve Ritchie’s interest without destroying the Commonwealth’s need to protect the confidentiality of those involved in child-abuse investigations.” (Id. at p. 61.)

Here, petitioner relies on Penal Code section 1054.9, which explicitly allows certain types of postconviction discovery, rather than the confrontation clause, which Ritchie held did not automatically authorize pretrial discovery. (Ritchie, supra, 480 U.S. at pp. 52-53 [no authority for “transform[ing] the Confrontation Clause into a constitutionally compelled rule of pretrial discovery.”].) As we have explained, Evidence Code section 771 would have required production of the trial prosecutor’s jury selection notes at trial, so Penal Code section 1054.9 requires production of them now. Petitioner’s entitlement to discovery is much better established here than was true of the defendant in Ritchie. Moreover, the Ritchie court was asked to balance the right the defendant there did have to discovery against “the Commonwealth’s compelling interest in protecting its child abuse information.” (Ritchie, at p. 60.) Here, the People have explicitly waived the only privilege they claim should limit or prevent disclosure of the jury selection notes.

For the foregoing reasons, we find petitioner is entitled to production of the trial prosecutor’s jury selection notes for copying. Because our straightforward approach—namely, that disclosure is required because Penal Code section 1054.9 entitled petitioner to production of anything to which he would have been entitled at trial, and Evidence Code section 771 would have entitled him to the notes at trial—obviates the need to decide the constitutional questions the petition poses, we offer no opinion on those issues. We also decline the request for in camera review for the reasons we have stated.

DISPOSITION

Let a writ of mandate issue, directing the Superior Court of Riverside County to vacate its order denying petitioner’s motion for postconviction discovery and to substitute an order granting petitioner’s request for disclosure of the trial prosecutor’s jury selection notes. As requested in the motion, these notes are to be produced to petitioner’s counsel for copying within 60 days of the finality of this opinion, without the need for in camera review.

Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

SLOUGH

J.