IN THE SUPREME COURT OF
CALIFORNIA
In re JASMINE JENKINS
on Habeas Corpus.
S267391
Second Appellate District, Division One
B301638
Los Angeles County Superior Court
BA467828
March 27, 2023
Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.
In re JENKINS
S267391
Opinion of the Court by Guerrero, C. J.
After a jury found her guilty of voluntary manslaughter,
Jasmine Jenkins appealed and filed a petition for writ of habeas
corpus in the Court of Appeal. In the writ petition, she claimed
the prosecution had suppressed evidence at trial in violation of
Brady v. Maryland (1963) 373 U.S. 83 (Brady). Specifically,
Jenkins alleged the People had suppressed evidence that the
victim and a key witness had previously been prosecuted for
aggravated assault arising from an incident that occurred
12 years earlier, which Jenkins asserted would have supported
her claim of self-defense. To support her allegations, Jenkins
attached as an exhibit an appellate court opinion downloaded
from LexisNexis that apparently referred to the prior
prosecution.
The Attorney General filed an informal response and,
after the Court of Appeal issued an order to show cause,
submitted a brief in support of his return, arguing Jenkins had
failed to present sufficient evidence of the prior case forming the
basis of her Brady claim. In particular, the Attorney General
argued that the appellate opinion was “nothing but an apparent
printout of an unspecified and unverified Internet source.”
The Court of Appeal assumed the opinion from the prior
case referred to the victim and the witness, but it concluded the
evidence of prior prosecution was not material under Brady and
denied Jenkins’s petition for writ of habeas corpus.
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
Jenkins filed a petition for review in which she contended
that it was appropriate to grant review because the Attorney
General had violated her right to due process by suppressing the
same evidence that formed the basis of her Brady claim. The
Attorney General filed an answer stating he had no “obligation
to provide additional evidence” pertaining to Jenkins’s petition
for writ of habeas corpus. Specifically, the Attorney General
maintained he had no constitutional, ethical, or procedural duty
to disclose evidence of the alleged prior prosecution in response
to Jenkins’s petition. We granted Jenkins’s petition for review
on the limited issue of the Attorney General’s duties, if any, to
disclose evidence in response to a habeas corpus petitioner’s
Brady claim.
We conclude that the Attorney General has both a
constitutional and an ethical duty to disclose evidence in
response to a petition for writ of habeas corpus alleging a Brady
violation under certain specified circumstances. In addition, we
conclude that the respondent to such a petition has a duty to
disclose evidence forming the basis of the Brady claim under
circumstances that we describe. We explain how these duties
may be performed when, as in this case, the evidence forming
the basis of the Brady claim in a petition for writ of habeas
corpus is subject to statutory disclosure restrictions. Finally, we
apply these conclusions in Jenkins’s case and reverse the
judgment of the Court of Appeal and remand the matter to that
court for further proceedings consistent with this opinion.
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
I.
A.
At the time of the incident giving rise to her manslaughter
conviction, Jenkins was dating Kayuan Mitchell.1 Victim
Brittneeh Williams (Brittneeh)2 and Mitchell had a daughter
together.
One evening in January 2018, Mitchell and Brittneeh got
into a fight during which Mitchell assaulted Brittneeh. Jenkins
arrived at the scene of the fight and taunted Brittneeh. Mitchell
got into Jenkins’s car and Jenkins started to drive away. After
phoning her sister, Sade Williams (Sade), Brittneeh drove after
Jenkins and Mitchell.
During the car chase, Jenkins complied with Mitchell’s
direction to pull into a gas station. Brittneeh also pulled into
the gas station. Brittneeh came over to Jenkins’s car, shouted
at Jenkins, and possibly punched her through an open window.
Mitchell got out of Jenkins’s car and tried to restrain Brittneeh.
As Mitchell and Brittneeh continued to fight, Jenkins
exited her car with a large kitchen knife and became involved in
the fight. Jenkins stabbed Brittneeh three times with the knife,
killing her, just as Sade arrived at the scene. Sade testified that
Jenkins stabbed Brittneeh while Mitchell held Brittneeh in a
bear hug.
1
We provide a brief summary of facts leading to Jenkins’s
conviction based on the Court of Appeal’s unpublished opinion
in this matter. (People v. Jenkins (Jan. 22, 2021, B294747,
B301638) [nonpub. opn.].
2
Because the victim and a witness share the same last
name, after introducing them, we use their first names when
referring to them individually to avoid confusion.
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
A jury acquitted Jenkins of murder but convicted her of
voluntary manslaughter. The trial court sentenced her to
11 years in prison.
B.
Jenkins appealed. While her appeal was pending, Jenkins
filed a petition for writ of habeas corpus in the Court of Appeal.
As relevant here, in her petition for writ of habeas corpus,
Jenkins claimed that the trial prosecutor suppressed material
exculpatory evidence in violation of her right to due process.
Specifically, Jenkins alleged the prosecutor failed to disclose
that the prosecutor’s office had, in 2006, successfully prosecuted
Brittneeh and Sade for aggravated assault with hate crime and
infliction of great bodily injury enhancements.3 As to Brittneeh,
Jenkins maintained that evidence of Brittneeh’s prior
commission of violence would have been admissible to
demonstrate her character for violence and support Jenkins’s
claim of self-defense. As to Sade, Jenkins contended that the
suppressed evidence would have been admissible for
impeachment purposes, both as evidence of prior acts of moral
turpitude and as evidence that Sade had lied to the jury when
she had testified at Jenkins’s trial that Brittneeh had never
previously acted like a “bully.”
Along with her petition, among other exhibits, Jenkins
filed a declaration from her trial counsel supporting her
contention that the prosecutor suppressed the evidence. In his
declaration, trial counsel stated that Jenkins’s postconviction
3
Jenkins noted that the Los Angeles County District
Attorney had prosecuted her case as well as the case allegedly
involving Brittneeh and Sade.
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Opinion of the Court by Guerrero, C. J.
counsel had recently provided him with a Court of Appeal
opinion that “describes how the Williams sisters, both Sade and
Brittneeh, brutally attacked three people without provocation,
leaving them injured and concussed.” Trial counsel stated, “I
did not know anything about that case.”
Attached to trial counsel’s declaration was the Court of
Appeal opinion (People v. Emerald R. (Mar. 4, 2010, B196643
[nonpub. opn.] (Emerald R.)), which had been downloaded from
LexisNexis. As discussed in the opinion, in the matter
underlying the appeal in Emerald R., a juvenile court declared
two minors, referred to as “Brit. W.” and “Sade W.,” along with
several other minors, to be wards of the court. The juvenile
court found the minors committed a series of aggravated
assaults during an incident that occurred on Halloween night in
2006. Specifically, the juvenile court found that Brit. W. and
Sade W. each committed three assaults with force likely to
produce great bodily injury and found true hate crime
allegations regarding each assault. In addition, the juvenile
court found that Brit. W. personally inflicted great bodily injury
on two victims and that Sade W. personally inflicted great bodily
injury on another victim.
The Court of Appeal ordered Jenkins’s petition for writ of
habeas corpus to be considered with her appeal, solicited an
informal response to the petition, and permitted Jenkins to file
a reply to the informal response.
The Attorney General filed an informal response arguing
that Jenkins had not stated a prima facie case for relief because
she “offered no competent evidence that either [Brittneeh] or
[Sade] suffered the adjudications [Jenkins] cite[d], . . . offer[ed]
no evidence that the prosecutor failed to disclose them,
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Opinion of the Court by Guerrero, C. J.
and . . . ha[d] not demonstrated how these prior adjudications
were material or favorable to her.”
In support of the first argument, the Attorney General,
citing People v. Duvall (1995) 9 Cal.4th 464, 474–475 (Duvall),
stated in part: “Exhibit B, Attachment B[, the Emerald R.
opinion,] is nothing but an apparent printout of an unspecified
and unverified Internet source suggesting a direct appeal
opinion in which minors ‘Brit W.’ and ‘Sade W.’ are listed as
defendants, among others. Because [Jenkins] has not provided
sufficient evidence to show Brittneeh or Sade were the minors
named, she has already failed to show a prima facie case for
relief.”
In her reply to the informal response, Jenkins objected to
the Attorney General’s refusal to acknowledge whether
Brittneeh and Sade were among the wards in Emerald R.,
stating in part: “[The Attorney General’s4] approach in this case
is deeply concerning — perhaps even more concerning than the
prosecutor’s failure to disclose this past case, which very well
may have been inadvertent. Here, [Jenkins] alleged that the
state suppressed evidence of Brittneeh’s prior assault. The state
now will not say whether or not this is in fact true, but instead
plays word games with the Court of Appeal’s opinion in that
4
Although Jenkins uses the word “respondent” it is clear
here, and in several other places in her briefing below and in
this court, that she intended to refer to respondent’s counsel, the
Attorney General, rather than respondent, the Secretary of the
Department of Corrections and Rehabilitation. (See fn. 25,
post.) We have replaced the word “respondent” with “Attorney
General” in those instances in which it is clear Jenkins intended
to refer to the Attorney General.
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Opinion of the Court by Guerrero, C. J.
case, characterizing that opinion as ‘an apparent printout of an
unspecified and unverified Internet source . . . .’
“However, as the chief law enforcement officer of the state,
[the Attorney General] has access to Brittneeh’s criminal
history. (See Pen. Code, § 11105.) Moreover, [the Attorney
General’s] own office handled the appeal in that case. (See
Exh. B, Attachment B, p. 1.) [¶] . . . . [¶]
“If anyone knows whether this case involves Brittneeh
Williams — or someone else the same age, from the same
county, who is named Brit. W., with a sister named Sade W.,
who faced the same charges around the same time — it is [the
Attorney General]. He should say so.”
Jenkins added that any factual dispute as to whether
Brittneeh and Sade were, in fact, two of the wards in Emerald R.
was not a reason to deny the petition for writ of habeas corpus
prior to the issuance of an order to show cause. She argued that
the Court of Appeal instead “should issue an Order to Show
Cause, obtain formal pleadings — where the state can admit or
deny in a verified answer whether Brittneeh was or was not the
defendant in the prior assault case that [the Attorney General’s]
own office handled — and order an evidentiary hearing in the
unlikely event that a factual dispute remains after respondent
answers this allegation under penalty of perjury.”
The Court of Appeal issued an order to show cause. The
Attorney General filed a two-paragraph return on behalf of
respondent that provided in relevant part: “Respondent alleges
that [Jenkins] is not entitled to relief because the prosecutor did
not violate Brady . . . by failing to disclose [Brittneeh’s] and
[Sade’s] purported prior juvenile adjudications for an incident
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
that occurred in 2006 because [the prosecutor] did not suppress
such evidence and such evidence was not material . . . .”
In a brief in support of the return, the Attorney General
reiterated Jenkins had not demonstrated that either Brittneeh
or Sade “were the minors in [Emerald R.],” repeating the
argument first provided in the informal response that
“Exhibit B, Attachment B is nothing but an apparent printout
of an unspecified and unverified Internet source suggesting a
direct appeal opinion in which minors ‘Brit W.’ and ‘Sade W.’ are
listed as defendants, among others.” The Attorney General also
argued that, even assuming Brittneeh and Sade were among the
wards in Emerald R., Jenkins had not “shown that the
prosecutor suppressed these prior adjudications.” Finally, the
Attorney General argued, also in the alternative, that Jenkins
had failed to show any of the allegedly suppressed evidence was
material.
In her traverse, Jenkins argued respondent had filed a
“conclusory general denial” that “plead[ed] no other facts and
denie[d] none of the numerous other facts pled in the [p]etition.”
Jenkins noted that respondent’s brief in support of the return
made clear that “respondent still questions whether [the
Emerald R. case] even involved the Williams sisters.” Jenkins
argued further that the deficient return made it difficult to
“isolate any disputed facts which may require an evidentiary
hearing.” In particular, with respect to the issue of whether
Brittneeh and Sade were the wards in the Emerald R. case,
Jenkins argued that respondent had failed its duty under
Duvall to either admit or deny the allegations in the petition or
to instead allege “ ‘(i) he or she has acted with due diligence;
(ii) crucial information is not readily available; and (iii) that
there is good reason to dispute certain alleged facts . . . .’ ”
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Opinion of the Court by Guerrero, C. J.
(Quoting Duvall, supra, 9 Cal.4th at p. 485.) Further, to the
extent respondent could be understood to deny Jenkins’s
allegation that Brittneeh and Sade were the wards in the
Emerald R. case, she requested an evidentiary hearing on this
factual dispute.
Along with her traverse, Jenkins filed a brief that argued,
“[L]est there be any real question as to whether this case
involved someone other than the Williams sisters, petitioner is
attaching to this Memorandum . . . a 2007 news article from the
Long Beach Press Telegram . . . describing how teenaged ‘sisters
Brittneeh and Sade Williams . . .’ and others were ‘convicted of
assault’ for ‘beating three . . . women . . .’ on ‘Halloween night.’ ”
Jenkins filed the quoted article as well as the Emerald R.
opinion, this time downloaded from Westlaw. The newspaper
article states that Brittneeh and Sade Williams were among the
minors involved in an incident that appears to form the basis of
the offenses described in the Emerald R. opinion.
The Court of Appeal affirmed Jenkins’s manslaughter
conviction and denied her petition for writ of habeas corpus.
Regarding the petition for writ of habeas corpus, the Court of
Appeal began its analysis by stating, “In 2006, the Williams
sisters, both juveniles, were declared wards of the court due to
their having committed three hate-crime assaults with force
likely to produce great bodily injury. [Emerald R., supra,
B196643.]” Following this statement, the Court of Appeal
included a footnote that provides: “The juveniles in [Emerald
R.], are referred to as ‘Brit. W.’ and ‘Sade W.’, which
[r]espondent contends fails to establish they were the Williams
sisters here. That is a fair point, but for present purposes we
will assume Brit. W. and Sade W. were Brittneeh and Sade
Williams.”
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
The Court of Appeal explained that Jenkins contended the
prosecutor violated her constitutional right to due process
pursuant to Brady and its progeny by failing to disclose the
adjudications before trial. According to the Court of Appeal,
Jenkins maintained that had she known about the
adjudications, she would have used them to demonstrate that
Brittneeh was the aggressor in their fight, and to impeach
Sade’s credibility.
After assuming that the prosecutor should have disclosed
the adjudications and that they would have been admissible at
trial, the Court of Appeal concluded that Jenkins’s Brady claim
failed because “there is no reasonable probability that disclosure
of the 2006 adjudication[s] would have altered the outcome of
trial.”
C.
Jenkins filed a petition for review of the Court of Appeal’s
denial of the writ petition. The Attorney General filed an
answer stating he had no “obligation to provide additional
evidence confirming that Brittneeh and Sade had, in fact,
suffered the prior juvenile adjudications.”
We granted Jenkins’s petition for review and limited the
issue to be briefed and argued to the following: “Where a habeas
petitioner claims not to have received a fair trial because the
District Attorney failed to disclose material evidence in violation
of Brady . . . — and where the Attorney General has knowledge
of, or is in actual or constructive possession of, such evidence —
what duty, if any, does the Attorney General have to
acknowledge or disclose that evidence to the petitioner? Would
any such duty be triggered only upon issuance of an order to
show cause?”
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
II.
Jenkins
claims
the
Attorney
General
cannot
constitutionally or ethically suppress exculpatory evidence
relevant to a habeas corpus petitioner’s Brady claim that the
Attorney General knows, or reasonably should know, he
possesses. She argues further that the Attorney General must
disclose such evidence in his possession upon the filing of a
habeas corpus petitioner’s verified allegations alleging its
existence.
We consider the Attorney General’s constitutional duty to
disclose alleged Brady evidence in habeas corpus proceedings in
part II.A., post, and his ethical duty to disclose such evidence in
part II.B., post. In part II.C., post, we consider the duties of the
respondent to a petition for writ of habeas corpus alleging a
Brady claim that arise from the procedural law governing such
petitions. In part II.D., post, we consider how the Attorney
General and the respondent may carry out these duties in a
case, such as this, in which the alleged Brady evidence consists
of juvenile records subject to statutory disclosure restrictions.
Finally, in part II.E., post, we summarize our conclusions and
apply them to Jenkins’s case.
A.
Jenkins contends the due process clause of the Fourteenth
Amendment to the federal Constitution prohibits the Attorney
General from defending a Brady claim by “[s]uppressing the
[s]ame [e]vidence the [trial] [p]rosecutor [s]uppressed.”5
5
Jenkins also contends in summary fashion, “Even [i]f the
Attorney General [m]ay [s]uppress [e]vidence under the
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
“The Fourteenth Amendment to the federal Constitution
prohibits states from denying any person due process of law.
This guarantee of due process affords criminal defendants the
right to a fair trial, ‘impos[ing] on States certain duties
consistent with their sovereign obligation to ensure “that ‘justice
shall be done.’ ” ’ ” (Association for Los Angeles Deputy Sheriffs
v. Superior Court (2019) 8 Cal.5th 28, 39 (Deputy Sheriffs),
quoting Cone v. Bell (2009) 556 U.S. 449, 451 (Cone).
“Prosecutors, as agents of the sovereign, must honor these
obligations.” (Deputy Sheriffs, supra, 8 Cal.5th at p. 39.) “ ‘A
prosecutor is held to a standard higher than that imposed on
other attorneys because of the unique function he or she
performs in representing the interests, and in exercising the
sovereign power, of the state.’ ” (People v. Hill (1998) 17 Cal.4th
800, 820; accord, Banks v. Dretke (2004) 540 U.S. 668, 696
(Banks) [“We have several times underscored the ‘special role
played by the American prosecutor in the search for truth in
criminal trials’ ”].
One special obligation that a prosecutor bears under our
system pertains to the disclosure of evidence favorable to a
defendant. That duty “trace[s] its origins to early 20th-century
strictures against misrepresentation and is of course most
prominently associated with [the United States Supreme]
Court’s decision in Brady . . . .” (Kyles v. Whitley (1995) 514 U.S.
419, 432 (Kyles).) “Under Brady, supra, 373 U.S. 83, and its
[f]ederal Constitution . . . this [c]ourt [s]hould [b]ar [s]uch
[c]onduct under the Due Process Clause of the [s]tate
Constitution.” However, Jenkins fails to develop her state
constitutional argument, and we decline to address any such
contention here. (See People v. Guzman (2019) 8 Cal.5th 673,
683, fn. 7.
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
progeny, the prosecution has a constitutional duty to disclose to
the defense material exculpatory evidence, including potential
impeaching evidence.” (People v. Superior Court (Johnson
(2015) 61 Cal.4th 696, 709 (Johnson).) “ ‘The obligation is not
limited to evidence the prosecutor’s office itself actually knows
of or possesses, but includes “evidence known to the others
acting on the government’s behalf in the case, including
the police.” ’ ” (People v. Cordova (2015) 62 Cal.4th 104, 123
(Cordova).
We have not previously had occasion to consider the
Attorney General’s duty, if any, under Brady and its progeny to
disclose evidence forming the basis of a habeas corpus
petitioner’s Brady clam. However, numerous courts in other
jurisdictions “have held that when state investigators or
prosecuting officers know of favorable evidence before or during
a defendant’s trial, the State’s duty to disclose the evidence
continues to posttrial proceedings that are determinative of
guilt or innocence.” (State v. Harris (Neb. 2017) 893 N.W.2d 440,
454 (Harris); see, e.g., Whitlock v. Brueggemann (7th Cir. 2012
682 F.3d 567, 588 (Whitlock) [“As we explained at length before,
Brady and its progeny impose an obligation on state actors to
disclose exculpatory evidence that is discovered before or during
trial. See [Steidl v. Fermon (7th Cir. 2007)] 494 F.3d [623,] 627–
630. This obligation does not cease to exist at the moment of
conviction”]; High v. Head (11th Cir. 2000) 209 F.3d 1257, 1264,
fn. 8 [“The fact that the State had not provided High’s trial
counsel with the audiotape does not dictate that the State would
not have given the audiotape to his first habeas counsel if he had
made a specific request for that item. The State’s duty to
disclose exculpatory material is ongoing”]; Thomas v. Goldsmith
(9th Cir. 1992) 979 F.2d 746, 749–750 [“We do not refer to the
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Opinion of the Court by Guerrero, C. J.
state’s past duty to turn over exculpatory evidence at trial, but
to its present duty to turn over exculpatory evidence relevant to
the instant habeas corpus proceeding”]; Blumberg v. Garcia
(C.D.Cal. 2009) 687 F.Supp.2d 1074, 1135 [“The prosecution’s
duty under Brady is a continuing one that extends through
habeas proceedings”]; Canion v. Cole (Ariz. 2005) 115 P.3d 1261,
1262 [the state has a continuing Brady duty to disclose evidence
that “comes to its attention” after sentencing]; see also
Runningeagle v. Ryan (9th Cir. 2012) 686 F.3d 758, 772, fn. 6
[citing Canion].
The Seventh Circuit’s decision in Steidl v. Fermon, supra,
494 F.3d 623 (Steidl) is particularly instructive. In Steidl, a
former prisoner brought a suit under section 1983 of title 42 of
the United States Code against several Illinois state police
officials for violating his constitutional rights under Brady.6
(Steidl, at p. 625.) The defendants were not involved in Steidl’s
case prior to his conviction. (Ibid.) However, while Steidl’s
postconviction proceeding was pending, the defendants learned
of certain exculpatory evidence that the government had
possessed prior to the time of trial. (Ibid.) Notwithstanding this
knowledge, the defendants failed to disclose the evidence.
(Ibid.) After his release, Steidl brought a claim in which he
contended that the defendants’ act in “conceal[ing] exculpatory
evidence from the courts during his post-conviction proceedings”
6
Steidl filed suit against several other defendants in
addition to the Illinois State Police officials. (See Steidl, supra,
494 F.3d at p. 626.) However, these other defendants were not
parties to the Steidl appeal. (Ibid.) Thus, for ease of reference
we refer to the Illinois State Police officials as defendants.
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Opinion of the Court by Guerrero, C. J.
deprived him of a fair trial and led to his wrongful conviction.
(Ibid.
After the district court denied the defendants’ motion to
dismiss based on qualified immunity, they filed an interlocutory
appeal. (Steidl, supra, 494 F.3d at p. 625.) On appeal, the Steidl
court “agree[d] with the district court that the Brady line of
cases has clearly established a defendant’s right to be informed
about exculpatory evidence throughout the proceedings,
including appeals and authorized post-conviction procedures,
when that exculpatory evidence was known to the state at the
time of the original trial.” (Ibid.) The Steidl court reasoned in
part: “In our view, Brady, Ritchie,[7] and the other cases in this
line impose on the state an ongoing duty to disclose exculpatory
information if, as Brady put it, that evidence is material either
to guilt or to punishment and available for the trial. . . . For
evidence known to the state at the time of the trial, the duty to
disclose extends throughout the legal proceedings that may
affect either guilt or punishment, including post-conviction
proceedings. Put differently, the taint on the trial that took
place continues throughout the proceedings, and thus the duty
to disclose and allow correction of that taint continues. We
cannot accept the implicit premise of the state’s position here,
which is that Brady leaves state officials free to conceal evidence
from reviewing courts or post-conviction courts with impunity,
even if that concealment results in the wrongful conviction of an
7
In Ritchie, which we discuss in greater detail in part II.D.,
post, the United States Supreme Court stated that a state’s
“duty to disclose [under Brady] is ongoing; information that may
be deemed immaterial upon original examination may become
important as the proceedings progress.” (Pennsylvania v.
Ritchie (1987) 480 U.S. 39, 60, italics added (Ritchie).
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Opinion of the Court by Guerrero, C. J.
innocent person. It is worth recalling, in this connection, that
the Brady rule was derived from the Due Process Clause of the
Fourteenth Amendment. ‘Society wins,’ the Court wrote, ‘not
only when the guilty are convicted but when criminal trials are
fair; our system of the administration of justice suffers when any
accused is treated unfairly.’ [Brady, supra,] 373 U.S. at 87.”
(Steidl, at p. 630.
We find the Steidl court’s reasoning persuasive and
consistent with the principles underlying Brady and its progeny
that we outlined ante, as well as case law referring to the
government’s obligations under Brady in the postconviction
context.
Further, we note that Steidl may not be distinguished on
the ground that it involved a police officer’s duty under Brady,
while, in this case, we consider the duty of the Attorney General.
As the Steidl court explained, it is the government who
ultimately is obligated to comply with the disclosure
requirements imposed by Brady and its progeny. (Steidl, supra,
494 F.3d at pp. 630–631, citing Youngblood v. West Virginia
(2006) 547 U.S. 867, 869–870; accord, Johnson, supra,
61 Cal.4th at p. 716 [“ ‘suppression by the Government is a
necessary element of a Brady claim’ ” (italics added)]; People v.
Williams (2013) 58 Cal.4th 197, 256, quoting Kyles, supra,
514 U.S. at p. 434 [“ ‘A “reasonable probability” of a different
result is accordingly shown when the government’s evidentiary
suppression “undermines confidence in the outcome of the
trial” ’ ” (italics added)].) And, of course, the Attorney General
acts on behalf of the government. (See Cal. Const., art. V, § 13
[“the Attorney General shall be the chief law officer of the State.
It shall be the duty of the Attorney General to see that the laws
of the State are uniformly and adequately enforced”].
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Opinion of the Court by Guerrero, C. J.
The Attorney General offers several arguments to support
the contention that he does not have a duty to disclose evidence
under Brady in the postconviction context. We consider each in
turn. First, the Attorney General argues that “[t]here is no due
process requirement that compels the Attorney General to
disclose alleged Brady evidence at the outset of habeas litigation
merely because a habeas petition raises a Brady claim.” We
agree with the Attorney General insofar as he argues that a
petitioner’s allegations of a Brady violation do not determine the
existence of the Attorney General’s Brady duties.8 Where the
evidence underlying a Brady habeas corpus claim would not
have been subject to disclosure by the government prior to
conviction — because, for example, such evidence was not
favorable to the defendant and material — then the Attorney
General has no Brady duty to disclose the evidence in
postconviction proceedings.
However, just like a prosecutor at trial, it is also true that
the Attorney General’s determination as to whether the evidence
is subject to disclosure under Brady also is not dispositive as to
the existence of a constitutional duty. Therefore, it may be the
case that the Attorney General “disclose[s] a favorable piece of
evidence” in a case in which it is unclear whether Brady
mandates disclosure. (Kyles, supra, 514 U.S. at p. 439; see
Deputy Sheriffs, supra, 8 Cal.5th at p. 40.) “This is as it should
be.” (Kyles, at p. 439.) Further, determining whether Brady
8
We note that while a petitioner’s allegations are not
determinative of the Attorney General’s constitutional duty
under Brady, such allegations do inform a respondent’s duties
pursuant to our state’s habeas corpus procedures in filing a
return to a petition for writ of habeas corpus alleging a Brady
violation. (See part II.C., post.
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Opinion of the Court by Guerrero, C. J.
applies to a piece of evidence may be easier in the postconviction
context given that its materiality, or lack thereof, may be more
apparent than it is before judgment. (Cf. Kyles, at pp. 438–439
[recounting government’s argument that materiality is difficult
to determine prior to judgment]; Deputy Sheriffs, at p. 40 [“it
may be difficult to know before judgment what evidence will
ultimately prove material”].
The Attorney General also broadly suggests he has no
duty under Brady in the postconviction context, even if the
evidence at issue was favorable to the defendant and material,
was available at trial, and was suppressed. He argues that the
purpose of Brady is to “safeguard . . . the right to a fair trial,”
and that “[w]hen a trial is over, Brady’s disclosure command
lacks purpose and dissipates.”
We generally agree with the Attorney General’s
assessment of Brady’s purpose. But we disagree that relieving
him of the disclosure requirements of Brady — in the context of
a habeas corpus proceeding — serves that purpose. To
understand why, we review the purpose of our state’s habeas
corpus proceedings: “The California Constitution has protected
the right to seek relief by habeas corpus since our state’s
founding. [Citations.] Habeas corpus, we have explained, ‘often
represents a prisoner’s last chance to obtain judicial review’ of a
criminal conviction. [Citation.] The law preserves this avenue
to relief in service of principles of substantial justice: ‘ “Despite
the substantive and procedural protections afforded those
accused of committing crimes, the basic charters governing our
society wisely hold open a final possibility for prisoners to prove
their convictions were obtained unjustly.” ’ ” (In re Friend
(2021) 11 Cal.5th 720, 736 (Friend).
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Opinion of the Court by Guerrero, C. J.
The postconviction Brady obligation that we outline today
supports the right to a fair trial and is fully compatible with the
purpose of habeas corpus proceedings. Under Brady and its
progeny, securing a conviction by failing to disclose material
exculpatory evidence violates due process. (Brady, supra,
373 U.S. at p. 86; Johnson, supra, 61 Cal.4th at pp. 709–710.
Imposing a continuing duty of disclosure on the government in
this context is consistent with both the due process right on
which Brady is based, and the “principles of substantial justice”
on which our state’s long-standing habeas corpus tradition is
founded. (Friend, supra, 11 Cal.5th at p. 736.
The Attorney General also contends that, “It would be
incongruous to graft Brady, a trial principle of constitutional
criminal procedure, onto a postconviction civil proceeding with
its own comprehensive procedural structure.” While it is true
that “[a] habeas corpus proceeding is not a criminal action”
(Maas v. Superior Court (2016) 1 Cal.5th 962, 975), and may be
characterized as “ ‘civil in nature’ ” for some purposes (Briggs v.
Brown (2017) 3 Cal.5th 808, 838), we have generally refrained
from deciding “ ‘whether a habeas corpus proceeding is civil or
criminal,’ ” noting that “ ‘[i]t is a special proceeding and not
entirely analogous to either category.’ ” (Id. at p. 838, fn. 15,
quoting In re Scott (2003) 29 Cal.4th 783, 815, fn. 6 (Scott); see
also Maas, at p. 975, citing Pen. Code, pt. 2, tit. 12, ch. 1, § 1473
et seq. [“the Legislature likewise . . . labeled the habeas corpus
proceeding a ‘Special Proceeding [] of a Criminal Nature’ ”].)9 In
any event, we see nothing incongruous about applying a rule
designed to ensure that convictions are premised on due process
9
Unless otherwise specified, all subsequent statutory
references are to the Penal Code.
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Opinion of the Court by Guerrero, C. J.
to a procedure designed to “ ‘ “hold open a final possibility for
prisoners to prove their convictions were obtained unjustly.” ’ ”
(Friend, supra, 11 Cal.5th at p. 736.
Nor does the Attorney General cite any case from this
court, or any other, holding that the government, in
postconviction proceedings, lacks a duty to disclose Brady
material that was available to the government at the time of
trial. The primary authority the Attorney General relies on,
District Attorney’s Office for Third Judicial Dist. v. Osborne
(2009) 557 U.S. 52 (Osborne), does not support the Attorney
General’s position. The defendant in Osborne sued Alaska
officials in federal court alleging a violation of section 1983 of
title 42 of the United States Code based, in part, on his claim
that the due process clause gave him the right to access DNA
evidence that “had been unavailable at trial.” (Osborne, at p. 61,
italics added.) In considering whether the defendant had such
a constitutional right “to obtain postconviction access to the
State’s evidence for DNA testing” (ibid.), the Osborne court
observed that “[t]he availability of technologies not available at
trial cannot mean that every criminal conviction, or even every
criminal conviction involving biological evidence, is suddenly in
doubt.” (Id. at p. 62, italics added.) The Osborne court reasoned
further that “[t]he dilemma [of] how to harness DNA’s power to
prove innocence without unnecessarily overthrowing the
established system of criminal justice,” was a problem to be
solved “primarily [by] the legislature.” (Ibid.
The Osborne court acknowledged that the defendant had
“a liberty interest in demonstrating his innocence with new
evidence under state law.” (Osborne, supra, 557 U.S. at p. 68.
After discussing that state law, the Osborne court observed that
a “ ‘state-created right can, in some circumstances, beget yet
20
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Opinion of the Court by Guerrero, C. J.
other rights to procedures essential to the realization of the
parent right.’ ” (Ibid.) However, the Osborne court concluded
that the Ninth Circuit “went too far . . . in concluding that the
Due Process Clause requires that certain familiar preconviction
trial rights be extended to protect Osborne’s postconviction
liberty interest.” (Ibid.) The Supreme Court explained that,
unlike before trial when a defendant is entitled to the
presumption of innocence, “[t]he State . . . has more flexibility in
deciding what procedures are needed in the context of
postconviction relief. ‘[W]hen a State chooses to offer help to
those seeking relief from convictions,’ due process does not
‘dictat[e] the exact form such assistance must assume.’
[Citation.] Osborne’s right to due process is not parallel to a
trial right, but rather must be analyzed in light of the fact that
he has already been found guilty at a fair trial, and has only a
limited interest in postconviction relief. Brady is the wrong
framework.” (Id. at p. 69.
While Osborne certainly “distinguish[es] between the
pretrial and the posttrial obligation to provide exculpatory
evidence” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 906
(Barnett)), we do not understand Osborne as holding that the
government lacks a duty to disclose, in the postconviction
context, Brady evidence that was available prior to conviction.
It is notable that Osborne repeatedly stated the evidence at
issue in that case was unavailable at trial (see Osborne, supra,
557 U.S. at pp. 61, 62), unlike the present case. And the Osborne
court’s reason for declining to extend Brady to evidence
discovered in the postconviction context — namely, that the
defendant received “a fair trial” (id. at pp. 68, 69), also does not
apply where the prosecution violates Brady at trial. (See, e.g.,
Cone, supra, 556 U.S. at pp. 459, 472 [determining that evidence
21
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Opinion of the Court by Guerrero, C. J.
that had been “withheld from [the defendant] at trial” “deprived
[him] of his right to a fair trial”].
Other courts have similarly understood Osborne. In
Whitlock, supra, 682 F.3d 567, the Seventh Circuit found no
inconsistency between Osborne and its earlier conclusion in
Steidl that a defendant has a “ ‘right to be informed about
exculpatory evidence throughout the proceedings, including
appeals and authorized post-conviction procedures, when that
exculpatory evidence was known to the state at the time of the
original trial.’ ” (Id. at p. 587, quoting Steidl, supra, 494 F.3d at
p. 625.) The Whitlock court explained that the defendant police
officials “read Osborne too broadly. Osborne rejected a claim
that Alaska’s procedures governing the access of defendants to
post-conviction DNA testing violated due process. Critically, the
evidence that Osborne sought was not exculpatory evidence that
had been in existence at the time of his original trial. Instead,
he was seeking the opportunity to collect and submit entirely
new, and he hoped exculpatory, evidence. The Court rejected
the argument that Brady required the state to allow the
defendant access to these new tests because the defendant had
already been ‘proved guilty after a fair trial.’ [Citation.] But
Brady continues to apply to an assertion that one did not receive
a fair trial because of the concealment of exculpatory evidence
known and in existence at the time of that trial.” (Whitlock, at
pp. 587–588.
The Whitlock court noted further that the Steidl court
decided only whether the government’s Brady duty applied to
evidence “known and in existence at the time of that trial”
(Whitlock, supra, 682 F.3d at p. 588), and that it did not decide
whether Brady applied to “ ‘evidence discovered post-trial.’ ”
(Ibid., quoting Steidl, supra, 494 F.3d at p. 629; see also Steidl,
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Opinion of the Court by Guerrero, C. J.
at p. 630 [stating that “available for the trial” “qualification is
important, to the extent that Brady identifies a trial right”].
Thus, while in Osborne the Supreme Court concluded a
defendant has no Brady “right to have the State disclose
exculpatory evidence that it learns about after a final judgment”
(Harris, supra, 893 N.W.2d at p. 457, italics added), Osborne
does not stand for the proposition that the Attorney General
may constitutionally continue to suppress material exculpatory
evidence in habeas corpus proceedings that was suppressed by
a prosecutor at the time of trial. (Whitlock, at p. 587; see also
Thompson v. City of Chicago (7th Cir. 2013) 722 F.3d 963, 972
[following Whitlock]; Collins v. City of New York (E.D.N.Y. 2013
923 F.Supp.2d 462, 474 [“In Osborne, [supra, 557 U.S. at
pages 68–69,] the Supreme Court held that Brady does not
require disclosure of exculpatory evidence — such as DNA
testing — that was or could be created after trial. [Citation.]
Since Collins’s Brady claim involves nondisclosure of evidence
in existence at the time of trial, Osborne does not apply”].) In
sum, as was true of the police official defendants in Whitlock, we
similarly conclude that the Attorney General reads Osborne too
broadly.
Nor are we persuaded by the Attorney General’s argument
that
“regardless
of
the
applicability
of
Brady
postconviction, . . . logic and practicality” dictate that there can
be no ongoing Brady violation once a petitioner files a petition
for writ of habeas corpus claiming a Brady violation. As for
logic, the Attorney General reasons, “The very allegation that
given information was suppressed means that the petitioner is
now aware of the evidence, which is no longer suppressed.” This
contention is unpersuasive because the mere assertion of a
Brady claim does not always demonstrate the petitioner has
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Opinion of the Court by Guerrero, C. J.
sufficient direct or concrete evidence to support the allegations.
Often it is through habeas corpus proceedings, that such
evidence is revealed. (See, e.g., Banks, supra, 540 U.S. at
pp. 682, 685 [noting that the petitioner alleged in a habeas
corpus proceeding “ ‘upon information and belief’ ” that
prosecution failed to disclose witness’s identity as an informant,
and that, several years later, in a habeas corpus evidentiary
hearing, a deputy sheriff “acknowledged, for the first time, that
[the witness] was an informant”]; In re Bacigalupo (2012
55 Cal.4th 312, 316 [describing reference proceeding that
spanned “several hearings over a three-year period,” and during
which “17 witnesses were called” to determine whether
prosecution failed to disclose information it obtained from a
confidential informant].) In addition, the mere assertion of a
Brady claim in a habeas corpus proceeding does not necessarily
provide a sufficient evidentiary record for a court to resolve such
claim. (See, e.g., Pham v. Terhune (9th Cir. 2005) 400 F.3d 740,
743 [ordering discovery of laboratory notes forming the basis of
a Brady claim and stating “[o]nce [the] notes have been
disclosed, the Brady issue is for the district court to decide in the
first instance”].
The Attorney General’s “practicality” argument is
similarly unpersuasive. The fact that, as the Attorney General
argues, the petitioner “knows enough to seek [the evidence]”
does not provide any assurance that the evidence will be
revealed given that, as the Attorney General acknowledges, “a
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
convicted person enjoys few opportunities to seek postconviction
discovery by court order.”10
In sum, we conclude that where a habeas corpus petitioner
claims not to have received a fair trial because a trial prosecutor
failed to disclose material evidence in violation of Brady — and
where the Attorney General has knowledge of, or is in actual or
constructive possession of, evidence that the trial prosecutor
10
While section 1054.9 authorizes postconviction discovery
in certain cases, the statute does not apply to petitioner given her
11-year sentence. (§ 1054.9, subd. (a) [allowing postconviction
discovery in cases involving a criminal conviction of a serious
felony or a violent felony resulting in a sentence of 15 years or
more].) Thus, we express no opinion regarding the Attorney
General’s postconviction statutory discovery duties under
section 1054.9 or court-ordered discovery following an order to
show cause. (See Scott, supra, 29 Cal.4th at p. 813 [after order
to show cause issues, the “scope of discovery in habeas corpus
proceedings has generally been resolved on a case-by-case
basis”].
We also express no opinion regarding the Attorney
General’s duty in a hypothetical situation described in his brief,
“in which no petition for a writ of habeas corpus has been filed
alleging a Brady violation but the Attorney General becomes
aware of evidence that should have been disclosed at trial
pursuant to Brady.”
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
suppressed in violation of Brady11 — the Attorney General has
a constitutional duty under Brady to disclose the evidence.12
B.
Jenkins claims the “[e]thics [r]ules [a]lso [p]rohibit the
Attorney General from [s]uppressing [e]vidence.”
Rule 3.8 of the Rules of Professional Conduct (Rule 3.8
provides in relevant part: “The prosecutor in a criminal case
11
At oral argument, the Attorney General acknowledged the
potential constitutional dimension to his disclosure duties in the
habeas corpus context, stating, for example, that “there may
well be some due process . . . based obligation to
disclose . . . evidence” where a district attorney fails to turn over
Brady material. The Attorney General also stated, “[W]e are not
denying that there may be a constitutional imperative behind
this obligation.”
However, the Attorney General expressed skepticism as to
the applicability of the Brady right in the postconviction context
because, according to the Attorney General, the postconviction
context varies considerably from that which exists prior to
conviction. Specifically, the Attorney General argued that while
Brady obligates the prosecutor to proactively disclose
information to further the factfinding function of a trial, “when
a habeas claim is filed it is not for the purpose of investigating
potential violations.” We emphasize the Brady duty we
recognize in this opinion is limited to circumstances in which the
Attorney General has knowledge of, or is in actual or
constructive possession of, allegedly suppressed evidence that is
referenced in a petition for writ of habeas corpus. Given our
disposition remanding the case to the Court of Appeal for
further proceedings, we find it unnecessary to consider what
circumstances would demonstrate constructive possession in
this context.
12
In part II.D., post, we discuss how the Attorney General
may comply with his disclosure obligations in a case in which
the alleged Brady material is subject to confidentiality
provisions under Welfare and Institutions Code section 827.
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
shall: [¶] . . . [¶] (d) make timely disclosure to the defense of all
evidence or information known to the prosecutor that the
prosecutor knows or reasonably should know tends to negate the
guilt of the accused, mitigate the offense, or mitigate the
sentence, except when the prosecutor is relieved of this
responsibility by a protective order of the tribunal.”
We have not previously had occasion to consider the
Attorney General’s ethical duty, if any, pursuant to Rule 3.8(d
in postconviction proceedings generally and thus have not
considered his duty as it pertains to a habeas corpus proceeding
alleging a Brady violation.13 The Attorney General argues both
that the rule has no application “in any postconviction scenario,”
and that Rule 3.8(d) should not “be viewed as imposing a duty
of disclosure independent of settled habeas procedures . . . .” We
disagree with both contentions.
As to whether Rule 3.8(d) applies in postconviction
settings, case law describing a prosecutor’s ethical duties in the
postconviction context decided before Rule 3.8(d) was adopted
supports such application. Specifically, this court has
repeatedly recognized that prosecutors have a continuing duty
13
“In 2018, [this court] approved a comprehensive revision
of the California Rules of Professional Conduct, effective
November 1, 2018. The new rules replace the former rules, and
implement a decimal numbering and organizational system
based on the American Bar Association Model Rules of
Professional Conduct.” (Davis v. TWC Dealer Group, Inc. (2019
41 Cal.App.5th 662, 677.) Rule 3.8 became effective as part of
this revision.
This court had previously entered an order enacting a rule
of professional conduct, operative November 2, 2017, identical
in all material respects to Rule 3.8(d), as an amendment to
former rule 5-110 of the Rules of Professional Conduct.
27
In re JENKINS
Opinion of the Court by Guerrero, C. J.
in postconviction proceedings to disclose exculpatory evidence
that should have been disclosed at trial. In People v. Gonzalez
(1990) 51 Cal.3d 1179 (Gonzalez), after concluding that a trial
court had erred in ordering the Attorney General, among others,
to provide certain discovery to a defendant in the postconviction
setting (see id. at pp. 1256–1257), we stated: “Of course, the
prosecution has a well-established duty to disclose information
materially favorable to the defense, even absent a request
therefor. [Citations.] ‘. . . At trial this duty is enforced by the
requirements of due process, but [even] after a conviction the
prosecutor . . . is bound by the ethics of his office to inform the
appropriate authority of . . . information that casts doubt upon
the correctness of the conviction.’ [Citation]; see also rule 5-220,
Rules Prof. Conduct of State Bar;[14] ABA Model Code Prof.
Responsibility, DR 7-103 (B), EC 7-13; ABA Model Rules Prof.
Conduct, rule 3.8(d).) [¶] We expect and assume that if the
People’s lawyers have such information in this or any other case,
they will disclose it promptly and fully.” (Id. at pp. 1260–1261.
In In re Steele (2004) 32 Cal.4th 682, we noted the
Attorney General argued that the fact that prosecutors have a
continuing ethical duty to disclose exculpatory evidence
obviated the need to interpret section 1054.9 as providing for the
postconviction discovery of such evidence: “The Attorney
General also argues that, as we pointed out in People v.
Gonzalez, supra, 51 Cal.3d at pages 1260 and 1261, prosecutors
have a continuing duty to disclose information favorable to the
14
Former rule 5-220 of the Rules of Professional Conduct
provided, “A member shall not suppress any evidence that the
member or the member’s client has a legal obligation to reveal
or to produce.”
28
In re JENKINS
Opinion of the Court by Guerrero, C. J.
defense, and we expect and assume that they will perform this
duty promptly and fully, and, moreover, that ‘[i]t is presumed
that official duty has been regularly performed.’ (Evid. Code,
§ 664.) Accordingly, he urges, any interpretation of
section 1054.9 that extends to discovery the prosecution should
have provided at time of trial makes it redundant of other law.
However, the expectation and assumption we stated in Gonzalez
merely mean that normally, and unless the defendant
overcomes Evidence Code section 664’s presumption as to
specific evidence, there will be no discovery for the trial court to
order that the prosecutor should have provided at trial.” (In re
Steele, at p. 694.
Finally, in In re Lawley (2008) 42 Cal.4th 1231 (In re
Lawley), we repeated our admonition from Gonzalez concerning
the continuing ethical duties of a prosecutor — in the
postconviction setting — to disclose evidence that should have
been disclosed at trial, this time specifically quoting American
Bar Association Model Rules of Professional Conduct, rule 3.8(d
(ABA Model Rule 3.8(d)) as providing, “ ‘The prosecutor in a
criminal case shall: [¶] . . . [¶] (d) make timely disclosure to the
defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the
offense.’ ” (In re Lawley, at p. 1246; see ibid. [“Before and during
trial, due process requires the prosecution to disclose to the
defense evidence that is material and exculpatory. [Citations.]
This obligation continues after trial.” (Citing, inter alia, ABA
Model Rule 3.8(d))].
Gonzalez, In re Steele, and In re Lawley all were decided
during a period when California did not have a specific rule of
professional conduct mandating that a prosecutor disclose
exculpatory evidence. Even without a specific rule, this court
29
In re JENKINS
Opinion of the Court by Guerrero, C. J.
repeatedly stated that a prosecutor had an ethical duty to
disclose exculpatory evidence in the postconviction setting.
Indeed, in both Gonzalez, supra, 51 Cal.3d at pages 1260–1261
and In re Lawley, supra, 42 Cal.4th at page 1246, we relied on
ABA Model Rule 3.8(d) in noting the existence of such a duty.
With the adoption of Rule 3.8(d), California now has a
specific rule of professional conduct mandating the disclosure of
exculpatory evidence by prosecutors. The adoption of a rule of
professional conduct that is based in part on ABA Model
Rule 3.8(d) — which this court has repeatedly relied on in
concluding that prosecutors have a disclosure obligation in the
postconviction context — supports our conclusion that
Rule 3.8(d) similarly applies in postconviction settings.
The Attorney General argues that the “language [of
Rule 3.8(d)] suggests exclusively pretrial application.” We are
not persuaded. The text of Rule 3.8(d) contains no language
expressly limiting its application to proceedings prior to
conviction. Nor do we infer any limitation based on the language
cited by the Attorney General. The Attorney General notes that
Rule 3.8(d) refers to “the accused” (Rule 3.8(d)), a description the
Attorney General contends is inapt when referring to a
convicted defendant. Similarly, the Attorney General notes that
Rule 3.8(d) refers to the “defense,” a description that technically
does not apply to a petitioner in a habeas corpus proceeding.
The Attorney General’s textual arguments ascribe too much
significance to terms we take to be shorthand references to a
person who is, or who has been, the subject of criminal
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In re JENKINS
Opinion of the Court by Guerrero, C. J.
proceedings and to that person’s lawyer(s).15 (Cf. People v.
Superior Court (Pearson) (2010) 48 Cal.4th 564, 573 [rejecting
district attorney’s argument that “the Legislature’s use of the
word ‘defendant’ rather than ‘petitioner’ in section 1054.9,”
demonstrated that the Legislature was not “creat[ing] discovery
in a separate habeas corpus matter”].) Further, the Attorney
General fails to cite any authority attaching import to the use of
the terms “accused” or “the defense” in language derived from
ABA Model Rule 3.8(d), a provision that we have previously
found applicable in postconviction proceedings. (See In re
Lawley, supra, 42 Cal.4th at p. 1246; cf. Com’n for Lawyer
Discipline v. Hanna (Tex.Ct.App. 2016) 513 S.W.3d 175, 180–
181 [stating “we hesitate to hold that the term ‘accused’
standing alone is conclusive” while discussing Texas
Disciplinary Rules of Professional Conduct, rule 3.09(d), which
like Rule 3.8(d) “was modeled after [ABA Model] Rule 3.8(d)”].
We also reject the Attorney General’s contention that
Rule 3.8(d) should not be interpreted to apply in postconviction
proceedings because “ ‘timely’ ” disclosure “is no longer possible”
in habeas corpus proceedings where guilt has been adjudicated.
Timeliness must be measured in relation to the proceeding in
which the disclosure is at issue. (See Rule 3.8, com. [3] [“A
disclosure’s timeliness will vary with the circumstances”].
When applied to postconviction proceedings, Rule 3.8(d)’s
requirement that the prosecutor “make timely disclosure” is
15
Although not specifically mentioned by the Attorney
General, we have also considered that Rule 3.8 refers
generically to a “prosecutor in a criminal case,” and does not
specifically refer to the Attorney General in habeas corpus
proceedings.
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Opinion of the Court by Guerrero, C. J.
reasonably interpreted as mandating timeliness in those
proceedings.
Nor are we persuaded by the Attorney General’s argument
that “the inclusion of rules that expressly do apply
postconviction” demonstrates that Rule 3.8(d) does not apply in
this postconviction setting. (Italics added, citing Rule 3.8(f) &
(g).)16 The fact that Rule 3.8(f) and (g) refer to a “convicted”
defendant, while Rule 3.8(d) does not use that term, can be
explained by the fact that Rule 3.8(f) and (g) apply exclusively to
convicted defendants, while Rule 3.8(d) also applies prior to
conviction.17
16
Rule 3.8(f) provides: “When a prosecutor knows of new,
credible and material evidence creating a reasonable likelihood
that a convicted defendant did not commit an offense of which
the defendant was convicted, the prosecutor shall:
“(1) promptly disclose that evidence to an appropriate court or
authority, and
“(2) if the conviction was obtained in the prosecutor’s
jurisdiction,
“(i) promptly disclose that evidence to the defendant unless a
court authorizes delay, and
“(ii) undertake further investigation, or make reasonable efforts
to cause an investigation, to determine whether the defendant
was convicted of an offense that the defendant did not commit.”
Rule 3.8(g) provides: “When a prosecutor knows of clear
and convincing evidence establishing that a defendant in the
prosecutor’s jurisdiction was convicted of an offense that the
defendant did not commit, the prosecutor shall seek to remedy
the conviction.”
17
In addition, the paragraph of ABA Model Rule 3.8(d) from
which Rule 3.8(d) was drawn was first adopted in 1977 (see
Attorney Grievance v. Cassilly (Md.Ct.App. 2021) 262 A.3d 272,
32
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Opinion of the Court by Guerrero, C. J.
Having determined that the Attorney General has an
ethical duty pursuant to Rule 3.8(d) in postconviction settings,
we consider the Attorney General’s argument that Rule 3.8(d
does not establish any additional “duty of disclosure” beyond
that provided for by the law governing habeas corpus
procedures. The Attorney General’s argument is based on
comment [3] to Rule 3.8, which provides in part that Rule 3.8(d
should not be “applied in a manner inconsistent with statutory
and constitutional provisions governing discovery in California
courts.” This argument fails because even assuming that
respondent’s duties that we describe in part II.C., post, are
discovery provisions binding on the Attorney General,18 the
Attorney General has not demonstrated how “imposing a duty
of disclosure [pursuant to Rule 3.8(d)] independent of settled
habeas procedures establishing a duty on the part of the
311), while the paragraphs of the ABA Model Rule 3.8 from
which Rule 3.8(f) and (g) were drawn were not adopted until
2008. (See Cassilly, at p. 311.) The adoption of these provisions
at different times provides a practical explanation for drafting
terminology differences. (Cf. United Riggers & Erectors, Inc. v.
Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1093 [“Different
bills, drafted by different authors, passed at different times,
might well use different language to convey the same basic
rule”].
18
As a technical matter, the law governing petitions for writ
of habeas corpus binds the respondent to such a petition — in
this case, the Secretary of the Department of Corrections and
Rehabilitation. (See fn. 25, post.) Rule 3.8(d) prescribes the
ethical duties of respondent’s counsel, the Attorney General.
Further, we are not convinced that the procedural duties we
describe in part II.C., post, arising from our case law governing
petitions for writ of habeas corpus, should be interpreted as
“statutory . . . provisions governing discovery” within the
meaning of comment [3] to Rule 3.8.
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Opinion of the Court by Guerrero, C. J.
Attorney General to acknowledge and potentially disclose the
evidence at issue,” is inconsistent with those habeas corpus
procedures. However, while we reject the Attorney General’s
argument that comment [3] to Rule 3.8 limits his duty of
disclosure to that prescribed in the procedural law governing
habeas corpus proceedings, we do not suggest that Rule 3.8(d
imposes duties beyond those specified in statutory and
constitutional provisions governing discovery in California
courts.
In fact, we note that the ethical duty in Rule 3.8(d) appears
to be similar to the prosecutor’s statutory duty at trial to provide
discovery of “ ‘[a]ny exculpatory evidence.’ ” (Cordova, supra,
62 Cal.4th at p. 124, quoting § 1054.1, subd. (e).)19 That duty
“requires the prosecution to provide all exculpatory evidence,
not just evidence that is material under Brady and its progeny.”
(Cordova, at p. 124; see also Barnett, supra, 50 Cal.4th at p. 901
[for purposes of postconviction discovery under § 1054.9, “[i]f
petitioner can show he has a reasonable basis for believing a
specific item of exculpatory evidence exists, he is entitled to
receive that evidence without additionally having to show its
materiality”]; accord, Deputy Sheriffs, supra, 8 Cal.5th at p. 40
[noting that “[s]tatutory and ethical obligations may require
even more” than the disclosure of material evidence and citing
§ 1054.1, subds. (d)–(e) and Rule 3.8(d) & com. [3]].
19
While it is unnecessary for us to decide whether the two
duties are identical, we emphasize that nothing in this opinion
should be understood to prescribe a duty of disclosure
“inconsistent with statutory and constitutional provisions
governing discovery in California courts.” (Rule 3.8, com. [3].
34
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Opinion of the Court by Guerrero, C. J.
The Attorney General also appears to argue that the
applicability of Rule 3.8(d) in habeas corpus proceedings raising
a Brady claim turns on the Attorney General’s assessment of
whether the evidence at issue is material to the petitioner’s
conviction.20 We reject any such argument. Comment [3] to
Rule 3.8 expressly states, “The disclosure obligations in
paragraph (d) are not limited to evidence or information that is
material as defined by Brady . . . and its progeny.” This court’s
approval of Rule 3.8(d) and the accompanying comment makes
clear that the ethical disclosure obligation under Rule 3.8(d) is
not limited to evidence material to a conviction.
Accordingly, we conclude that, pursuant to Rule 3.8(d), in
responding to a petition for writ of habeas corpus alleging a
Brady violation, the Attorney General has an ethical duty to
make timely disclosure to the petitioner of all evidence or
information known to the Attorney General that was available
but not disclosed at trial21 that the Attorney General knows or
reasonably should know tends to negate the guilt of the
petitioner, mitigate the offense, or mitigate the sentence, except
when the Attorney General is relieved of this responsibility by a
protective order of the tribunal.22
20
In his answering brief, the Attorney General argues, “No
ethical rule would have required the Attorney General in this
case to disclose records the Attorney General did not consider
material to the trial outcome.”
21
The parties have not briefed, and we do not consider,
whether Rule 3.8(d) requires disclosure of evidence that was not
available at trial.
22
The Attorney General also cites another portion of
comment [3] to Rule 3.8, which provides that the rule “ ‘does not
35
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Opinion of the Court by Guerrero, C. J.
C.
In addition to the Attorney General’s constitutional and
ethical duties described in parts II.A. and II.B., ante, a
respondent to a petition for writ of habeas corpus alleging a
Brady claim also has duties that arise from procedural law
governing such petitions.
We begin by summarizing well established law governing
petitions for writ of habeas corpus. (Duvall, supra, 9 Cal.4th at
pp. 474–475.) In Duvall, we outlined a habeas corpus
petitioner’s initial pleading burden: “To satisfy the initial
burden of pleading adequate grounds for relief, an application
for habeas corpus must be made by petition, and ‘[i]f the
imprisonment is alleged to be illegal, the petition must also state
in what the alleged illegality consists.’ [Citation.] The petition
should both (i) state fully and with particularity the facts on
which relief is sought [citations], as well as (ii) include copies of
reasonably available documentary evidence supporting the
claim, including pertinent portions of trial transcripts and
affidavits or declarations. [Citations.] ‘Conclusory allegations
made without any explanation of the basis for the allegations do
not warrant relief, let alone an evidentiary hearing.’ [Citation.]
We presume the regularity of proceedings that resulted in a
require disclosure of information protected from disclosure by
federal or California laws and rules.’ ” Thus, the Attorney
General argues Rule 3.8(d) would not compel disclosure of the
evidence at issue in this case because it consists of confidential
juvenile court records protected from dissemination pursuant to
Welfare and Institutions Code section 827. We discuss in part
II.D., post, how the Attorney General may comply with his
ethical duty of disclosure in cases involving records subject to
Welfare and Institutions Code section 827.
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Opinion of the Court by Guerrero, C. J.
final judgment [citation], and . . . the burden is on the petitioner
to establish grounds for his release.” (Id. at p. 474.
“An appellate court receiving such a petition evaluates it
by asking whether, assuming the petition’s factual allegations
are true, the petitioner would be entitled to relief.” (Duvall,
supra, 9 Cal.4th at pp. 474–475.) The court may request that
the respondent provide an “informal written response.” (Cal.
Rules of Court, rule 8.385(b)(1); see also id., rules 4.551(b
[“informal response” in noncapital habeas corpus proceedings in
superior court], 4.573(a) [“informal written response” in capital
habeas corpus proceedings in superior court].
In People v. Romero (1994) 8 Cal.4th 728, 742 (Romero) we
described the “screening function” that an informal response
serves in resolving petitions for writ of habeas corpus: “Through
the informal response, the custodian or real party in interest
may demonstrate, by citation of legal authority and by
submission of factual materials, that the claims asserted in the
habeas corpus petition lack merit and that the court therefore
may reject them summarily, without requiring formal pleadings
(the return and traverse) or conducting an evidentiary hearing.
If the petitioner successfully controverts the factual materials
submitted with the informal response,[23] or if for any other
reason the informal response does not persuade the court that
the petition’s claims are lacking in merit, then the court must
proceed to the next stage by issuing an order to show cause or
the now rarely used writ of habeas corpus. Deficiencies in the
23
The Romero court noted that a petitioner is afforded an
opportunity to file a reply to any informal response. (Romero,
supra, 8 Cal.4th at p. 741; see Cal. Rules of Court, rules
8.385(b)(3), 4.551(b)(2), 4.573(a)(3).
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Opinion of the Court by Guerrero, C. J.
informal response do not provide a justification for shortcutting
this procedural step.” (Ibid., fn. omitted.
Upon the issuance of the order to show cause, the
respondent files a return. (Duvall, supra, 9 Cal.4th at p. 475.
In
the
return,
the
respondent
is
required
to
“ ‘allege facts tending to establish the legality of petitioner’s
detention.’ ” (Id. at p. 476.) “Those facts are not simply the
existence of a judgment of conviction and sentence when the
petitioner challenges his restraint in prison. The factual
allegations of a return must also respond to the allegations of
the petition that form the basis of the petitioner’s claim that the
confinement is unlawful. [Citations.] In addition to stating
facts, the return should also, ‘where appropriate, . . . provide
such documentary evidence, affidavits, or other materials as will
enable the court to determine which issues are truly disputed.’ ”
(Ibid., fn. omitted.) Following the filing of the return, the
petitioner may file a pleading called a traverse that responds to
the facts pleaded in the return. (Ibid.
In Duvall, we emphasized that the “requirement that the
return allege facts responsive to the petition is critical, for the
factual allegations in the return are either admitted or disputed
in the traverse and this interplay frames the factual issues that
the court must decide.” (Duvall, supra, 9 Cal.4th at p. 477.
Further, we specifically “reiterate[d] our disapproval of the
practice of filing returns that merely contain a general denial of
a habeas corpus petitioner’s factual allegations.” (Id. at
pp. 480–481.) However, the Duvall court outlined the
procedures to follow when a respondent does not have access to
information needed to either admit or deny a factual allegation
of the petition. In such circumstances, the “return should set
forth with specificity: (i) why information is not readily
38
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Opinion of the Court by Guerrero, C. J.
available; (ii) the steps that were taken to try to obtain it; and
(iii) why [respondent] believes in good faith that certain alleged
facts are untrue.” (Id. at p. 485.
With these procedures in mind, we consider a respondent’s
duty in responding to a habeas corpus petitioner’s Brady claim
in a case in which the respondent has knowledge of, or is in
actual or constructive possession of, the evidence forming the
basis of the claim. As alluded to above, we reiterate that upon
the filing of a petition alleging a Brady violation, if the allegedly
suppressed evidence is material and exculpatory, the Attorney
General has an independent constitutional duty to disclose the
evidence (see pt. II.A., ante), and to the extent the evidence is
subject to Rule 3.8(d), the Attorney General has an independent
ethical duty to disclose the evidence (see pt. II.B., ante).24 In
this part we consider additional duties arising from habeas
corpus procedural law that apply upon the mere allegation of a
Brady violation. Specifically, we consider respondent’s duty in
filing an informal response prior to the issuance of an order to
show cause, and respondent’s duty in filing a return should a
court issue an order to show cause.
24
In addition, even where disclosure is not mandated by
Brady or Rule 3.8(d), the Attorney General may disclose the
evidence to promote justice as a policy matter. Further, the
Attorney General’s disclosure of allegedly suppressed evidence
in response to a petition for writ of habeas corpus alleging a
Brady violation is not necessarily an admission or concession on
the merits because, as noted in part II.A., ante, the Attorney
General may disclose the evidence in an attempt to comply with
his Brady duty even where a court ultimately concludes that
Brady did not mandate disclosure. (Kyles, supra, 514 U.S. at
p. 439; Deputy Sheriffs, supra, 8 Cal.5th at p. 40.
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Opinion of the Court by Guerrero, C. J.
Jenkins contends the “Attorney General[25] should not be
permitted to sit on exculpatory evidence undermining a criminal
defendant’s conviction and hope that the case does not survive
the informal briefing stage.” She supports her argument by
noting “the vast number of unrepresented habeas petitioners,”
and argues that a contrary rule would “incentivize continued
suppression.” She argues that the mere filing of a petition for
writ of habeas corpus alleging a Brady claim requires the
Attorney General to disclose the allegedly exculpatory evidence.
We reject this argument. To begin with, a petitioner’s
filing of a petition for writ of habeas corpus alleging a Brady
claim, does not establish the existence of any exculpatory
evidence. Thus, the analysis depends on whether the mere
allegation of a Brady violation in a petition for writ of habeas
corpus triggers a respondent’s duty under our habeas corpus
case law to disclose the existence of known evidence underlying
such claim.26
The informal response is a judicially created procedure.
(See Romero, supra, 8 Cal.4th at pp. 741–742 [outlining history
25
While our order limiting the issue to be briefed and argued
suggested that this duty was the Attorney General’s, as a
technical matter, the duty belongs to the Attorney General’s
client, respondent Secretary of the Department of Corrections
and Rehabilitation. (See § 1477 [stating that a writ of habeas
corpus “must be directed to the person having custody of or
restraining the person on whose behalf the application is
made”].) However, the Attorney General must also comply with
the habeas corpus procedural duties specified in this opinion
when acting on behalf of respondent as counsel.
26
Again, the fact that respondent has knowledge, whether
actual or constructive, of the evidence does not establish that
the evidence is material or exculpatory.
40
In re JENKINS
Opinion of the Court by Guerrero, C. J.
of the development of the use of informal responses in habeas
corpus proceedings].) We are not aware of any case law, and
Jenkins cites none, holding that a respondent must come
forward with affirmative evidence of any kind in an informal
response. (See In re Robbins (1998) 18 Cal.4th 770, 798, fn. 20
[“Nothing in . . . Duvall, supra, 9 Cal.4th 464, [476], suggests,
much less holds, that respondent is obligated to
provide . . . documentary evidence in an informal response,”
that will “ ‘ “enable the court to determine which issues are truly
disputed” ’ ”].) Nor do the relevant rules of court that now
govern informal responses in habeas corpus proceedings specify
any such duty. (See Cal. Rules of Court, rules 8.385(b), 4.551(b),
4.573(a).) Further, the “screening function” (Romero, at p. 742
that an informal response serves — allowing for the
identification of facially deficient petitions — does not support
imposing such a duty.
Therefore, we agree with the Attorney General that, prior
to the issuance of an order to show cause, in an informal
response, respondent may choose to neither “confirm nor
dispute” the existence of the alleged Brady evidence and may
argue instead that, assuming the existence of the evidence, the
evidence is not subject to Brady.27 Permitting respondent to
27
Again, we emphasize that we are discussing here only the
respondent’s duties under the law governing habeas corpus
petitions in responding to an allegation of a Brady violation. If
the allegedly suppressed evidence is in fact subject to Brady
and/or Rule 3.8(d), the Attorney General has a duty to disclose
the evidence as outlined in part II.A. and/or part II.B., ante,
respectively.
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Opinion of the Court by Guerrero, C. J.
argue in such a fashion should not prejudice a habeas corpus
petitioner who merely carries a pleading burden prior to the
issuance of an order to show cause. (See Duvall, supra, 9 Cal.4th
at p. 474 [specifying a habeas corpus petitioner’s pleading
burden].
However, given that a court is empowered, after allowing
a petitioner to file a reply to the informal response (see Romero,
supra, 8 Cal.4th at p. 741) to summarily reject a petition for
habeas corpus on the basis of “factual materials” submitted in
an informal response (id. at p. 742, italics added), we do impose
one restriction on a respondent’s informal response.
Specifically, we conclude that, if the Attorney General has
knowledge of, or is in actual or constructive possession of,
evidence underlying a habeas corpus petitioner’s Brady claim,
he shall not file an informal response on behalf of respondent
that argues the petitioner has failed to present “documentary
evidence supporting the claim” (Duvall, supra, 9 Cal.4th at
p. 474), unless the Attorney General explains the basis for such
an argument (e.g., by explaining that confidentiality provisions
prohibit the Attorney General from confirming the existence of
the evidence and the petitioner has failed to utilize available
procedures to seek access to the evidence).28 This limited
In addition, if the evidence does not in fact exist, contrary
to our hypothetical positing that the Attorney General has
knowledge of its existence, respondent may argue that the
evidence does not exist.
28
In discussing his responsibilities in filing an informal
response responding to a habeas corpus petitioner’s Brady
claim, the Attorney General proposes a similar restriction,
stating, “[W]hen the Attorney General has ready access to
42
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Opinion of the Court by Guerrero, C. J.
restriction is sufficient to guard against the possibility that a
court would summarily reject a petition on the erroneous
premise that the evidence does not exist, when in fact the
Attorney General has knowledge of the existence of the
evidence.
However, after the issuance of an order to show cause,
different rules apply. As we outlined ante, Duvall requires a
respondent to plead facts responsive to the petitioner’s
allegations, including “ ‘where appropriate, . . . provid[ing] such
documentary evidence, affidavits, or other materials as will
enable the court to determine which issues are truly disputed.’ ”
(Duvall, supra, 9 Cal.4th at p. 476.) Thus, as the Attorney
General acknowledges, “This obligation to allege facts would
ordinarily include acknowledging the existence of alleged Brady
evidence known to or possessed by the Attorney General.” We
agree.
Thus, for example, if a habeas corpus petitioner alleged
that a prosecution witness had a prior conviction that was
suppressed at trial under Brady, after the issuance of an order
to show cause, the Attorney General, on behalf of respondent,
would normally be required to file a return that either admitted
or denied the existence of the prior conviction.29 By either
information that would confirm or dispel the accuracy of
petitioner’s factual claims, the Attorney General should not
contest the sufficiency of evidence provided by petitioner
without providing factual clarification — or identifying a
statutory inability to do so.”
29
In this hypothetical scenario, the Attorney General would
have knowledge of such evidence given his role in administering
the state’s depository of criminal history records. (Cf. § 11105,
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Opinion of the Court by Guerrero, C. J.
admitting or denying the factual basis of the habeas corpus
petitioner’s Brady claim, respondent would thereby “sharpen[]
the issues” that remain to be decided in any evidentiary
hearing.30 (Duvall, supra, 9 Cal.4th at p. 480.
Accordingly, we conclude that prior to the issuance of an
order to show cause on a petition for writ of habeas corpus
raising a Brady claim, the Attorney General generally may file
an informal response on behalf of a respondent that neither
confirms nor disputes the existence of the alleged Brady
evidence. However, the Attorney General shall not file an
informal response contending that the petitioner has failed to
demonstrate the existence of the evidence where the Attorney
General has knowledge of, or is in actual or constructive
possession of, the evidence, without providing a reasoned
explanation rooted in the Attorney General’s inability to confirm
the existence of the evidence and petitioner’s failure to utilize
procedures for obtaining the evidence. Further, at the return
stage, the Attorney General, on behalf of the respondent, shall
not persist in raising any argument put forth in an informal
response that the petitioner failed to carry his or her burden of
showing the evidence exists without providing a reason for why
respondent is unable to confirm or deny the existence of the
subd. (a)(2)(A) [“ ‘State summary criminal history information’
means the master record of information compiled by the
Attorney General pertaining to the identification and criminal
history of a person”].
30
At the return stage, the respondent remains free to
present whatever legal arguments he or she deems appropriate
in responding to the petitioner’s claim. Thus, with respect to a
Brady claim, the respondent might argue that the evidence is
not material.
44
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Opinion of the Court by Guerrero, C. J.
evidence (e.g., because the alleged evidence is subject to
disclosure prohibitions).31
D.
In his answering brief in this court, the Attorney General
points out that the evidence underlying Jenkins’s Brady claim,
namely the juvenile adjudications that Brittneeh and Sade
allegedly suffered, are subject to disclosure restrictions
contained in Welfare and Institutions Code section 827.32 In
considering the relevance of this fact to the duties discussed in
this opinion, we first outline the existing law governing the
government’s Brady obligation in the context of confidential
records protected by Welfare and Institutions Code section 827.
We then discuss how this law applies with respect to the
constitutional, ethical, and habeas corpus procedural duties
outlined in parts II.A., II.B., and II.C., ante, respectively.33
31
As previously noted, we discuss in part II.D., post, how the
respondent may carry its Duvall pleading duty when a statute,
such as Welfare and Institutions Code section 827, restricts the
disclosure of the evidence underlying the respondent’s pleading
burden.
32
Neither party referred to these disclosure restrictions in
the proceedings in the Court of Appeal or at the petition stage
in this court. In her reply brief, Jenkins does not dispute that
Welfare and Institutions Code section 827 restricts the
disclosure of the alleged adjudications.
33
Apart from Welfare and Institutions Code section 827, we
express no opinion as to whether and how other disclosure
restrictions might apply with respect to the evidence underlying
a Brady claim in a petition for writ of habeas corpus and how
such restrictions might affect the duties we have outlined in
parts II.A., II.B., and II.C., ante.
45
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Opinion of the Court by Guerrero, C. J.
Welfare and Institutions Code section 827 has long since
“repose[d] in the juvenile court control of juvenile records.”
(T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 780.) The statute
“requires the permission of the court before any information
about juveniles is disclosed to third parties by any law
enforcement official.” (Ibid.) In J.E. v. Superior Court (2014
223 Cal.App.4th 1329 (J.E.), the Court of Appeal provided an
overview of Welfare and Institutions Code section 827’s
confidentiality provisions and the petition procedure that may
be used by those not specifically statutorily authorized to inspect
such records to gain access to them, including criminal
defendants such as Jenkins: “Section 827 specifies who is
authorized to inspect the files, and it lists the prosecutor as one
of the authorized persons. An authorized person, in turn, may
not disclose information from the files to an unauthorized
person without a court order. . . . [¶] Section 827 also contains
provisions that permit unauthorized persons to directly petition
the juvenile court for access to the confidential records.
[Citations.] Under section 827 the juvenile court has ‘exclusive
authority to determine whether and to what extent to grant
access to confidential juvenile records’ to unauthorized persons.
[Citation.] This statutory scheme reflects a legislative
determination that the juvenile court has ‘both the “ ‘sensitivity
and expertise’ to make decisions about access to juvenile
records.” ’ ” (J.E., at p. 1337, fns. omitted.
The J.E. court also summarized the in camera review
procedures specified by Welfare and Institutions Code
section 827 and California Rules of Court, rule 5.552 that govern
a petition for disclosure of confidential juvenile documents.
(J.E., supra, 223 Cal.App.4th at p. 1338.) The J.E. court
concluded that these in camera review procedures provide the
46
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Opinion of the Court by Guerrero, C. J.
“proper mechanism to resolve a defense Brady disclosure
request involving information in a juvenile file.” (Ibid.
In reaching this conclusion, the J.E. court noted that
although the “government’s Brady obligations are typically
placed upon the prosecutor, the courts have recognized that the
Brady requirements can also be satisfied when a trial court
conducts an in camera review of documents containing possible
exculpatory or impeachment evidence.” (J.E., supra,
223 Cal.App.4th at p. 1336, citing, inter alia, Ritchie, supra,
480 U.S. at pp. 57–58.) The J.E. court noted that, in Ritchie, the
United States Supreme Court held that a defendant’s right to a
fair trial was sufficiently protected by a trial court’s in camera
review of confidential child protection agency files that the
defendant sought. (J.E., at p. 1336, citing Ritchie, at pp. 59–61.
The Ritchie court stated that the trial court was required to
disclose the material to the defense if it were to determine the
confidential files contained Brady material. (Ritchie, at pp. 60–
61.
The J.E. court explained that Welfare and Institutions
Code section 827 codified a similar procedure for in camera
review, and possible disclosure, of juvenile records that “has
long been recognized as an appropriate vehicle to protect both
the defendant’s right to a fair trial and the state’s interest in
confidentiality of the files.” (J.E., supra, 223 Cal.App.4th at
p. 1338, citing, inter alia, People v. Martinez (2009) 47 Cal.4th
399, 450–454.) And, as we described in Johnson, “The J.E. court
explained that, ‘[a]s a practical matter, use of a [Welfare and
Institutions Code] section 827 petition to secure Brady review
can also serve to streamline the review process. A section 827
petition filed directly with the juvenile court bypasses the
prosecutor as an intermediary and allows the court to make the
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Opinion of the Court by Guerrero, C. J.
disclosure decision in the first instance. This eliminates the
need for the prosecution to request court permission for
disclosure after its Brady review, and forestalls litigation
brought by the defense over whether the prosecution has
complied with its Brady obligations. Given that the Legislature
has established the section 827 court petition process for access
to juvenile files, it makes practical sense to allow use of this
process to resolve Brady requests through a single procedure.’
([J.E.], supra, 223 Cal.App.4th at p. 1339.)” (Johnson, supra,
61 Cal.4th at p. 718.) Accordingly, in Johnson, we cited Ritchie
and J.E., as providing the “procedure used for confidential
juvenile records.” (Ibid.
Finally, in People v. Stewart (2020) 55 Cal.App.5th 755
(Stewart), the Court of Appeal concluded that the People had
violated their duty under Brady and its progeny in connection
with a police report that was protected from disclosure by
Welfare and Institutions Code section 827. The alleged victim
of the offenses discussed in the police report, which pertained to
an incident separate from the charged offenses, was a minor and
a key prosecution witness in the defendant’s case. (Stewart, at
pp. 761, 776.) After discussing Ritchie, J.E., and Johnson —
“three cases that bear on a prosecutor’s Brady obligation in the
context of confidential records” (Stewart, at p. 771) — the
Stewart court concluded that the government had suppressed
the police report, which contained potentially impeaching
information as to the alleged victim/witness. (Id. at pp. 775–
776.) The Stewart court reasoned that the People could have
satisfied their Brady obligation under such case law by
“informing the defense of the existence of potential
impeachment material in the police report, making a copy of the
[police report] available for the juvenile court’s review, and
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Opinion of the Court by Guerrero, C. J.
referring [the defendant] to the section 827 procedure to obtain
it,” but had failed to do so. (Id. at p. 775.
This case law informs our assessment of the Attorney
General’s duty in responding to a petition for writ of habeas
corpus alleging a Brady violation from the failure to disclose
evidence in a case in which the Attorney General is himself
prohibited from disclosing the evidence pursuant to Welfare and
Institutions Code section 827. Applying such law, we conclude
that the Attorney General may satisfy his Brady duty under
such circumstances by: (1) informing the petitioner or
petitioner’s counsel that the materials allegedly suppressed are
protected by Welfare and Institutions Code section 827;
(2) informing the petitioner or petitioner’s counsel of the Welfare
and Institutions Code section 827 procedure needed to obtain
such evidence; and (3) after the petitioner files a Welfare and
Institutions Code section 827 petition, making any such
evidence that the Attorney General possesses available for a
juvenile court’s review under that statute. (See Stewart, supra,
55 Cal.App.5th at p. 775 [outlining prosecutor’s duty with
respect to such evidence prior to conviction].
Similarly, with respect to his ethical duty under
Rule 3.8(d) under these circumstances, while the Attorney
General properly notes that comment [3] to Rule 3.8 specifies
that it “does not require disclosure of information protected from
disclosure by federal or California laws and rules,” as discussed
in the previous paragraph, the Attorney General need not
disclose confidential materials. Rather, we conclude that the
Attorney General may comply with his Rule 3.8(d) duty in the
same manner as he may comply with his Brady duty with
respect to confidential materials. (Cf. Stewart, supra,
55 Cal.App.5th at p. 775.
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Opinion of the Court by Guerrero, C. J.
Finally, with respect to a respondent’s duty in filing a
return under these circumstances, we conclude that a
respondent may plead an inability to plead facts about the
alleged Brady evidence due to the Welfare and Institutions Code
section 827 disclosure bar. Permitting a respondent to file such
a pleading would be consistent with our discussion in Duvall of
pleading rules to be applied “where access to critical information
is limited or denied to one party.” (Duvall, supra, 9 Cal.4th at
p. 485.) Such a pleading would also be consistent with the
requirement in Duvall that the “return should set forth with
specificity . . . why information is not readily available.” (Ibid.
The Attorney General should also state in respondent’s return
that the petitioner or petitioner’s counsel may utilize the
procedure specified in that statute to attempt to obtain such
evidence and make any such evidence he possesses available for
a juvenile court’s review under Welfare and Institutions Code
section 827. By filing such a return, respondent also will serve
the salutary purpose of alerting the habeas corpus court of the
possible need for ancillary proceedings in the juvenile court
before the habeas corpus court can “endeavor to determine
whether there are facts legitimately in dispute that may require
holding an evidentiary hearing.” (Duvall, at p. 485.
In sum, in responding to a petition for writ of habeas
corpus alleging a Brady violation based on a failure to disclose
evidence when the Attorney General is himself prohibited from
disclosing that evidence pursuant to Welfare and Institutions
Code section 827, the Attorney General need not, and should
not, himself disclose the evidence in contravention of statutory
confidentiality procedures. However, the existence of such
confidentiality provisions does not relieve the Attorney General
of the various disclosure duties outlined in this opinion. Instead,
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Opinion of the Court by Guerrero, C. J.
when faced with such a petition, the Attorney General should
proceed as outlined in this part and, in so doing, will comply
with the duties we have described in this opinion without
contravening the disclosure restrictions contained in Welfare
and Institutions Code section 827.
E.
To recap, where allegedly suppressed evidence forming
the basis of a Brady claim in a petition for writ of habeas corpus
is in fact subject to Brady, the Attorney General has a
constitutional duty of disclosure that exists as of the time of the
filing of the petition as outlined in part II.A., ante.34 Where such
evidence is not subject to Brady, but is subject to Rule 3.8(d), the
Attorney General has an ethical duty of disclosure that exists as
of the time of the filing of the petition as outlined in part II.B.,
ante. Where such evidence is neither subject to Brady nor
subject to disclosure under Rule 3.8(d), respondent has a duty to
disclose the existence of the evidence under Duvall that arises
34
The Attorney General states in his brief that in cases in
which the material underlying a Brady petition for writ of
habeas corpus is in fact Brady material, as a “policy decision,”
he will either: (1) provide the material directly to the petitioner,
or (2) if the evidence is subject to disclosure restrictions, provide
the petitioner with notice sufficient to permit the petitioner to
seek court-ordered disclosure. We emphasize that the Attorney
General has a legal duty mandated by Brady and its progeny to
disclose such evidence. In addition, because evidence that is in
fact Brady material will also, by definition, be subject to
Rule 3.8(d), the Attorney General also has an ethical duty to
disclose such evidence. In addition, as noted in the text, in a
case in which the evidence is subject to disclosure restrictions
contained in Welfare and Institutions Code section 827, the
Attorney General may satisfy those duties by proceeding as
outlined in part II.D., ante.
51
In re JENKINS
Opinion of the Court by Guerrero, C. J.
after the issuance of an order to show cause as outlined in part
III.C., ante. Finally, where such evidence is subject to disclosure
restrictions contained in Welfare and Institutions Code
section 827, the Attorney General and the respondent may
fulfill their duties by proceeding as outlined in part II.D., ante.
We emphasize that where the evidence at issue is actually
Brady material and/or subject to Rule 3.8(d), the Attorney
General’s constitutional and ethical obligations exist
independently from respondent’s duty under habeas corpus case
law to respond to a petitioner’s Brady claim. Thus, when
triggered, such duties exist as of the filing of the petition. In
addition, the respondent has procedural duties that arise from
a petitioner’s allegation that are triggered upon the issuance of
an order to show cause.
In light of the Attorney General’s admittedly deficient
litigation practices in the Court of Appeal,35 as well as our
clarification of the Attorney General’s disclosure duties, it is
appropriate to remand the matter to the Court of Appeal for
35
In his merits brief in this court, the Attorney General
acknowledged that his return in the Court of Appeal was
“deficient . . . because it . . . argued (in part) that petitioner had
not provided sufficient proof of the alleged juvenile
adjudications, yet did not provide clarifying materials or plead
an inability to do so.” In addition, in that brief, the Attorney
General stated that his informal response in the Court of Appeal
“did not represent best practices” for similar reasons. At oral
argument in this court, the Attorney General stated, “We did not
fulfill our duty to assist the habeas tribunal to understand what
facts were actually at issue in this case.” While we appreciate
the Attorney General’s eventual concessions, we emphasize that
we do not condone such errors and that a prudent prosecutor
should take care to not make these mistakes in the future.
52
In re JENKINS
Opinion of the Court by Guerrero, C. J.
further proceedings so as to permit that court to consider
Jenkins’s petition upon a fulsome record prepared in accordance
with the principles that we have outlined in this opinion. In
remanding, we express no opinion on the merits of Jenkins’s
petition for writ of habeas corpus.
Finally, we urge the prosecutors in this case, and in every
other, to carefully consider the constitutional, ethical, and
habeas corpus procedural duties that we have outlined herein to
ensure that they faithfully bear the special responsibilities
ascribed to the prosecution in our system of justice. We remind
the prosecutors of today of what we said in In re Ferguson (1971
5 Cal.3d 525: “The search for truth is not served but hindered
by the concealment of relevant and material evidence. Although
our system of administering criminal justice is adversary in
nature, a trial is not a game. Its ultimate goal is the
ascertainment of truth, and where furtherance of the adversary
system comes in conflict with the ultimate goal, the adversary
system must give way to reasonable restraints designed to
further that goal. Implementation of this policy requires
recognition of a duty on the part of the prosecution to disclose
evidence to the defense in appropriate cases.” (Id. at pp. 531–
532.
53
In re JENKINS
Opinion of the Court by Guerrero, C. J.
DISPOSITION
The judgment of the Court of Appeal is reversed, and the
matter is remanded to that court for further proceedings
consistent with this opinion.
GUERRERO, C. J.
We Concur:
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
54
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion In re Jenkins
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 1/22/21 – 2d Dist.,
Div. 1
Rehearing Granted
Opinion No. S267391
Date Filed: March 27, 2023
Court: Superior
County: Los Angeles
Judge: Lisa B. Lench
Counsel:
Rudolph J. Alejo, under appointment by the Supreme Court, for
Petitioner Jasmine Jenkins.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey and Jeffrey
M. Laurence, Assistant Attorneys General, Zee Rodriguez, Paul Thies,
Seth K. Schalit and J. Michael Chamberlain, Deputy Attorneys
General, for Respondent Department of Corrections and
Rehabilitation.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Rudolph J. Alejo
Attorney at Law
520 South Grand Avenue, 4th Floor
Los Angeles, CA 90071
(213) 243-0300
J. Michael Chamberlain
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102
(415) 510-3775
Opinion Information
| Date: | Docket Number: |
| Mon, 03/27/2023 | S267391 |
