A prosecutor’s jury selection notes are not shielded from disclosure in postconviction proceedings that raise a Batson claim

Box v. Superior Court of San Diego County (Cal. Ct. App., Dec. 30, 2022, No. D080573) 2022 WL 17999610

 Summary: Issue: The issue decided was: Are a prosecutor’s jury selection notes core work product shielded from disclosure in postconviction proceedings that raise a Batson claim?

The Court of AppeL held that where  a prima facie case of racial bias under Batson/Wheeler has been made, a defendant is entitled to discover the prosecution’s jury selection notes under section 1054.9. Those notes are not categorically shielded from discovery by the absolute work product privilege. (§ 1054.6; see Code Civ. Proc., § 2018.030, subd. (a).) When the  People maintain that those notes reflect the prosecution’s impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors, they bear the burden to make that foundational proffer and seek appropriate redactions from the trial court.

Factual And Procedural Background

In 1990, a San Diego jury convicted Box of three counts of first degree murder, attempted premeditated murder, first degree robbery, conspiracy to commit robbery, and residential burglary with associated weapons use enhancements. Box was sentenced to death in 1991.

Box is African American, his codefendant was Hispanic, and the three murder victims were White. During jury selection, the prosecutor used two of her peremptory challenges to excuse both African Americans who were seated in the jury box. Defense counsel objected under Wheeler. Although the court did not find a prima facie showing of racial bias as to either strike, it permitted the prosecutor to state her reasons for excusing the jurors on the record. Later the prosecutor used a peremptory challenge to excuse an alternate juror, and the defense again raised a Wheeler challenge. The court again found no prima facie case, but permitted the prosecutor to offer reasons for the strike.  The judge then denied the motion, finding the prosecutor had not engaged in racial discrimination.

Box is prosecuting a federal habeas petition and seeks discovery of the trial prosecutor’s jury selection notes to support his federal habeas claim of Batson error. The trial court denied the motion to compel. Assuming the absolute work product privilege applied, the court determined that the prosecutor had not made testimonial use of those notes to waive that privilege during jury selection.

Box filed this petition for writ of mandate in requesting that the Court of Appeal vacate the trial court’s order and direct it to grant the motion to compel. We issued an order to show cause.

Legal Principles

The  California Supreme Court held in Wheeler, supra, 22 Cal.3d 258, that the use of peremptory challenges to remove prospective jurors on the basis of group bias violated the state constitutional right to a jury trial before a representative cross-section of the community. The United States Supreme Court held that discriminatory use of peremptory strikes violated the Equal Protection Clause of the Fourteenth Amendment to the federal constitution. (Batson, supra, 476 U.S. at p. 86.) Batson and Wheeler create the right to challenge a prosecutor’s purposeful discrimination in exercising preemptive strikes.

three step burden-shifting framework to evaluate Batson/Wheeler claims

1. The defendant bears the burden to show a prima facie case of discriminatory purpose in the exercise of peremptory challenges.
2. If the prima facie case has been made, the burden shifts to the prosecution to provide a race-neutral reason for the strike.
3. The trial courts decides whether the defendant has met his or her ultimate burden to prove purposeful discrimination.

The stage-three inquiry comes down to whether the trial court finds the prosecutor’s stated reasons for the strike credible. (Jones II, supra, 12 Cal.5th at pp. 357−358.)

Although the trial court here conducted an in camera review of the prosecutor’s jury selection notes, it did so to confirm its tentative conclusion that the prosecutor had not waived any work product privilege, an issue to which the notes were not relevant.

 An in camera review is only permissible to decide whether otherwise discoverable portions of the prosecutor’s notes reveal mental impressions about the theory of the case.

The court never addressed Box’s argument that the prosecutor’s jury selection notes were not covered by the absolute work product privilege. The People were not  asked to make a foundational proffer showing why producing the jury selection notes would disclose privileged work product unrelated to the Batson/Wheeler inquiry. And after the in camera review, the court never indicated whether any of the material it reviewed bore on the Batson/Wheeler inquiry.

Disposition: The Court of Appeal returned the matter to the trial court for further consideration of Box’s motion to compel, applying the correct standard. Unless the People articulate a foundational basis for shielding some portion of the jury selection notes from discovery, those materials must be turned over to Box in their entirety. If the People make an adequate foundational proffer, the trial court may proceed to decide whether any redactions are necessary.