## IN THE SUPREME COURT OF CALIFORNIA

In re JASMINE JENKINS

o n Habeas Corpus.

S267391

Second Appellate District, Division One

B301638

Los Angeles County Super ior C ourt

BA467828

March 27 , 2023

Chief Justice Guerrero authored the opinion of the Court, in
which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and
Evans concurred.1 In re J ENKINS

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 claim ed the prosecution had suppres sed evidence at trial in violation o f 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 assert ed 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 apparent ly 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
, argu ing 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 w as “ 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

.In re JENKINS Opinion of the Court by Guerrero, C. J.

2 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 he r 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 dut y
to disclose evidence of the alleged prior prosecution in response to Jenkins’s petition

. W e 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.

W e 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 evidenc e forming the basis of the Brady claim under

c ircumstances that we describe

. W e explain how the se duties

may be perform ed 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, w e 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

.In re JENKINS Opinion of the Court by Guerrero, C. J.

3 I.

A.
At the time of the incident giving rise to her manslaughter
conviction , Jenkins was dating K ayuan Mitchell. 1 Victim
Brittneeh Williams (Brittneeh) 2 and Mitchell ha d 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 d ri ve away. After phon ing her sister, Sade Williams (Sade)

, Brit t neeh drove after
Jenkins and Mitchell.
During the car chase, Jenkins complied with Mitchell ’s
direction to pull into a gas station. B rittneeh also pulled into
the gas station. Brittneeh c a me 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 Br ittneeh while Mitchell held Brittneeh in a bear hug.

1 We provide a brief summary of fac ts leading to Jenkins’s conviction based on the Court of Appeal’s unpublished opinion in this mat ter

. ( 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.In re JENKINS Opinion of the Court by Guerrero, C. J.

4 A jury acquitted Jenkins of murder but convicted her of voluntary manslaughter

. The trial court sentenced her to

11 years in prison.

B.
Jenkins appeal ed

. 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 enhancement s

. 3 As to Brittneeh,
Jenkins mainta ined 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 su pporting 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 we ll as the case allegedly involving Brittneeh and Sade.In re JENKINS Opinion of the Court by Guerrero, C. J.

5 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,
l eaving them injured and concussed. ” Trial c ounsel 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

, i n 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 juveni le

court found the minors committed a series of aggravated assaults during an incident that occurred on Halloween night in
2006. Specifically, t he juvenile court found that Brit. W. and
Sade W. each committed three as saults 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

, solicit ed an informal res pons e to the petition, and permit ted Jenkins to file a reply to the informal response

. T he Attorney General filed an informal response argu ing
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,In re JENKINS Opinion of the Court by Guerrero, C. J.

6 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

. opin ion, ] 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 prov ided
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’s 4 ] approach in this case
is deeply concerning

— perhaps even more concerning than the prosecutor’s f

ailure 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 use s 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. 2 5
, post .) We have replaced the word “respondent” with “Attorney General” in those instances in which it is cl ear Jenkins intended to refer to the Attorney General.In re JENKINS Opinion of the Court by Guerrero, C. J.

7 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 instea d “ 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 disput e 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 alleg es 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 incidentIn re JENKINS Opinion of the Court by Guerrero, C. J.

8 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

a rgument 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 defe ndants, 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, a lso in the alternative, that Jenkins had failed to show any of t he allegedly suppressed evidence was material.
In her traverse, Jenkins argued resp ondent 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 eith er 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

. . . . ’ ”In re JENKINS Opinion of the Court by Guerrero, C. J.

9 ( 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 reque sted 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 t eenaged ‘ sisters
Brittneeh and Sade Williams . . . ’ and others were ‘ convicted of
assault ’ for ‘ beating three . . . women . . . ’ on ‘ Halloween night. ’ ”
Jenkins filed the quoted article a s well as the Emerald R

. opinion , this time downloaded from Westlaw

. The newspaper
article state s that Brittneeh and Sade Williams were among the
minors involved in an incident that appears to form the basis of
the offense s described in the Emerald R. opinion.

T he Court of Appeal affirm ed Jenkins’s manslaughter
convicti on and den ied her petition for writ of habeas corpus. Regarding the petition for writ of habeas corpus

, the Court of Appeal began its analysis by stat ing , “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.”In re JENKINS Opinion of the Court by Guerrero, C. J.

10 The Court of Appeal explained that Jenkins contended the prosecutor v iolated 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 t hem to demonstrate that
Brittneeh w as the aggressor in the ir 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

. T he 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, o r 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? ”In re JENKINS Opinion of the Court by Guerrero, C. J.

11 I I.

J enkins 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 m us t disclose such evidence in his possession upon the filing of a
habeas corpus petitioner’s verified allegations alleging its
existence.

We consider the A ttorney 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 th e se 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 appl y them to Jenkins’s case.
A.
Jenkins contends the due process clause of the F ourteenth
A mendment to the federal C onstitution 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 theIn re JENKINS Opinion of the Court by Guerrero, C. J.

12 “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 th eir sovereign obligation to ensure “ that ‘ justice
shall be done. ’ ” ’ ” (

Ass ociatio n for Los Angeles Deputy Sheriffs v. Superior C our t (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, 69 6 ( 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 p rosecutor bears under our syste m 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 C onstitution . . . this [ c ] ourt [ s ] hould [ b ] ar [ s ] uch [ c ] onduct under the D ue P rocess C lause of the [ s ] tate C onstitution .” 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.)In re JENKINS Opinion of the Court by Guerrero, C. J.

13 progeny, the prosecution has a constitutional duty to disclose to the defense material exculpatory evidence, including potential impeaching evidence.” ( People v. Superior C our t ( Johnson ) (2015) 61 Cal.4th 696, 709 ( Johnson ) .) “ ‘ Th e 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.4t h 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. T his obligation does not cease to exist at the moment of

con viction”]; High v. Head (11th Cir. 2000) 209 F.3d 1257, 126 4
, 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

. T he 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 theIn re JENKINS Opinion of the Court by Guerrero, C. J.

14 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 ].)

Th e 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 t itle 42 of
the U nited States Code against several Illinois s tate p olice
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, w hile Steidl’s postconviction proceeding was pending, the defendants learn ed
of certain exculpatory evidence that the government had possessed prior to the time of trial. ( Ibid .) Notwithstanding th is 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 S tate P olice o fficials

. ( See Steidl

, supra , 494 F.3d at p. 626. ) However, these other defendants were not parties to the Steidl appeal. ( Ibid

. ) T hus

, for ease of reference we refer to th e Illinois S tate P olice officials as defend a nts.In re JENKINS Opinion of the Court by Guerrero, C. J.

15 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 qualifie d immunity, they f iled an interlocutory appeal

. ( Steidl

, supra , 494 F.3d at p. 625.) On appeal, t he 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 e vidence 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 .) T he 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 pl ace 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
f rom 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 ).)In re JENKINS Opinion of the Court by Guerrero, C. J.

16 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 referr ing 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; accor d

, 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

. ( S ee C al. Const.

, art. V, § 13 [“ t he 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”]

. )In re JENKINS Opinion of the Court by Guerrero, C. J.

17 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 outs et 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 A ttorney General’s Brady duties. 8 W here the
evidence underlying a Brady habeas corpus claim w ould 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, i t 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 c ase 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 dut y under Brady , such allegations do inform a respondent’s duties pursuant to our state’s habeas corpus pro cedures in filing a return to a petition for writ of habeas corpus alleging a Brady

v iolation. (See part II.C

. , post .)In re JENKINS Opinion of the Court by Guerrero, C. J.

18 applies to a piece of ev idence 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”].)

T he Attorney Gener al also broadly suggest s he has no dut y 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 d issipates

. ”

W e 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. [Citation s .] 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 Frie nd (2021) 11 Cal.5th 720, 736 ( Friend ) .)In re JENKINS Opinion of the Court by Guerrero, C. J.

19 The post conviction Brady obligation that we outline today supports the right to a fair trial and is fully compatible with the purpose of habeas corpus proceedings. U nder 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
foun ded. ( Friend

, supra , 11 Cal. 5 th 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.” W hile it is true that “[a] habeas corpus proceeding is not a criminal action” ( Maas v. Superior C our t (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.In re JENKINS Opinion of the Court by Guerrero, C. J.

20 to a procedure designed t o “ ‘ “ 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

, h olding that the government, in postconviction proceedings, lacks a duty to disclose Brady material that was available to the government at the time of
trial. T he 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

t itle 42 of the United States Code based , in part, on his claim
that the d ue p rocess c lause 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” ( i bi d .), the Osborne court observed that “[t]he availability of technologies not avai lable 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
furt h er 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 l egislature .” ( I bi d .)

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 rig ht can, in some circumstances, beget yetIn re JENKINS Opinion of the Court by Guerrero, C. J.

21 other rights to procedures essential to the realization of the parent right. ’ ” ( Ibid .) However, the Osborne court conclude d
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 postconvictio n relief. Brady is the wrong framework.” ( Id

. a t p

. 69.)

While Osborne certainly “distinguish[es] between the pretrial and the posttrial obligation to provide exculpatory evidence” ( Barnett v. Superior C our t (2010) 50 Cal.4th 890, 906 ( Barnett ) ), w e do not understand Osborne as holding that the government lacks a duty to disc lose

, in the po s tconviction

context
, Brady evidence that was available prior to conviction

. It is notable that Osborne repeated ly 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 . A nd the Osborne

court ’s reason for declining to extend Brady to evidence discovered in the postconviction context

— na mely

, that the defendant received “a fair trial” ( i d

. at p p

. 68
, 69), also does not apply where the prosecution violat e s Brad y at trial. (See

, e.g., Cone

, supra , 556 U.S. at p p

. 459, 472 [determin ing that evidenceIn re JENKINS Opinion of the Court by Guerrero, C. J.

22 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 tha t 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 th at 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

– 5 88.)

The Whitl ock court noted further that the Steidl court decided only whether the government’s Brady duty applied to
evide nce “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

,In re JENKINS Opinion of the Court by Guerrero, C. J.

23 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 ” ( Harri s , 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; s ee also
Thom pson 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

p ages 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, a s w as 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
lo gic, the Attorney General reasons, “ T he very allegation th at 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 hasIn re JENKINS Opinion of the Court by Guerrero, C. J.

24 sufficient direct or concrete evidence to support the allegations.
O ften 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 petitione r 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

pros ecution 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 lab oratory 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”].)

T he Attorney General’s “practicality” argument is similarly un persuasive

. T he fact that , as the Attorney General

argues, the petitioner “knows enough to seek [the evidence]”
d oes not provide an y assurance that the evidence will be revealed given that, as the Attorney General acknowledges, “aIn re JENKINS Opinion of the Court by Guerrero, C. J.

25 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 result ing in a sentence of 15 years or

more ].) Thus, w e 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.4t h 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 a t trial pursuant to Brady .”In re JENKINS Opinion of the Court by Guerrero, C. J.

26 suppressed in violation of Brady 11

— the Attorney General ha s

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 A t 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 ob ligation 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 be cause, 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 obligate s the prosecutor to proactively disclose information to further the factfinding function of a t rial

, “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 limit ed 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 corpu s

. 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 confidential ity provisions under Welfare and Instit utions Code section 827.In re JENKINS Opinion of the Court by Guerrero, C. J.

27 shall: [¶] . . . [¶] (d) make timely disclosure to the defense of all

e vidence 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 conside r 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 R ule 3.8(d) was adopted
supports such application. Specifically , t his court has repeatedly recognized that prosecutors have a continuing duty

13 “ In 2018, [this c ourt] 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 Gr ou p, Inc. (2019) 41 Cal.App.5th 662, 677 .) Rule 3.8 became effective as part of this revision

. Th is 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 r ule 5

- 110 of the Rule s of Professional Conduct

.In re JENKINS Opinion of the Court by Guerrero, C. J.

28 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 conclud ing that a trial court had erred in ordering the Attorney General

, among other s , to provide certain discovery to a defendant in the postconviction setting (see id

. at p p

. 1 256

– 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. ’ [ C itation] ; 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 fav orable to the

14 Former rule 5

- 2 20 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. ”In re JENKINS Opinion of the Court by Guerrero, C. J.

29 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, i n 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 A merican
B ar A ssociation Model Rules of Prof essional 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

. ” ( C iting

, inter alia

, ABA Model Rule 3.8(d) ) ] .)

Gonzalez

, In r e 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

. E ven without a specific rule, this courtIn re JENKINS Opinion of the Court by Guerrero, C. J.

30 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 p ages 1260

– 1261
and In re Lawley

, supra , 42 Cal.4th at p age 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. T he adoption of a rule of professional conduct that is based in part on ABA M odel
Rule 3.8(d)

— which this court ha s 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 argu es 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. T he 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 , th e 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.
T he Attorney General’s textual argument s ascribe too much significance to terms we take to be shorthand references to a

person who is, or who has been, the subject of criminalIn re JENKINS Opinion of the Court by Guerrero, C. J.

31 proceedings and to that person’s lawyer(s)

. 15 (Cf. People v. Superior C our t ( Pearson ) (2010) 48 Cal.4th 564, 57 3 [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 an y 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 Rule s of Prof essional Conduct , rule 3.09(d), w hich like Rule 3.8(d) “was modeled after [ABA Model ] Rule 3.8(d) ” ] .)

W e also reject the Attorney General’s contention that
Rule 3.8(d) should not be interpreted to appl y 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.In re JENKINS Opinion of the Court by Guerrero, C. J.

32 reasonably interpreted as mandating timel iness i n those proceedings

. Nor are we persuaded by the Attorney General’s a rgument 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

, c iting R ule 3.8(f) & (g). ) 16 T he fact that Rule 3.8(f) and (g) refer to a “convicted” defendant, wh ile 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 R ule 3.8(f) provides: “When a prosec utor 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 cour t 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 cau se an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.”
R ule 3.8(g) provides: “When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jur isdiction 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 Att orne y Grievance v. Cassilly ( Md.Ct. App. 2021) 262 A.3d 272

,In re JENKINS Opinion of the Court by Guerrero, C. J.

33 Having determined that the Attorney General has an ethical duty pursuant to Rule 3.8(d) in postco n v iction settings,

w e consider the Attorney General’s argument that Rule 3.8(d) does not establish any additional “duty of d isclosure” beyond
that provided for by the law governing habeas corpus procedures. The Attorney General ’s argument is based on

c omment [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

respo n dent’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

3 11 ), 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. ( S ee Ca s silly

, at p. 3 11

. ) Th e adoption of the se provisions at different time s 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

. 2 5
, 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

. . . provision s governing discovery ” within the meaning of comment [3] to Rule 3.8

.In re JENKINS Opinion of the Court by Guerrero, C. J.

34 Attorney General to acknowledge and potentially disclose the
evidence at issue,” is inconsistent with those habeas corpus procedures. However, w hile we reject the Attorney General’s argument that c omment [ 3 ] to Rule 3.8 limits his duty o f
disclosure to that prescribed in the procedural law governing
habeas corpus proceedings , we do not sugges t that Rule 3.8(d) impose s 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 prosecut or’ 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 R ule 3.8(d) & com. [3] ] .)

19 While i t 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] .)In re JENKINS Opinion of the Court by Guerrero, C. J.

35 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 W e 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.
According ly , we conclude that

, pursuant to Rule 3.8(d)

, in responding to a petition for writ of habea s 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 trial 21 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 br ief, 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 notIn re JENKINS Opinion of the Court by Guerrero, C. J.

36 C. In addition to the Attorney General’s constitutional and ethical duties described in part s II.A

. and II. B

. , ante , a respondent to a petition for writ of habeas corpus alleging a Brady claim also has dut ies that aris e from procedural law governing such petitions

. We begin by summarizing well established law gove rning 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 regula rity of proceedings that resulted in a

require d isclosure 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 cou rt 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.In re JENKINS Opinion of the Court by Guerrero, C. J.

37 final judgment [citation] , and

. . . the burden is on the petitioner to establish grounds for his release. ” ( Id

. at p. 474.)

“ A n 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

– 4 75.) T he court may request that the respondent provide an “ inform al 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 re s ponse” in capital
habeas corpus proceedi ngs in superior court] .)

I n People v. Romero ( 199 4 ) 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 demons trate, 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 trave rse) 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. De ficiencies 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, rule s 8.385(b)(3)

, 4.551(b)(2), 4.573( a )(3).)In re JENKINS Opinion of the Court by Guerrero, C. J.

38 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 re turn, the respondent is required to

“ ‘ allege facts tending to establish the legality of petitioner ’ s detention. ’ ” ( Id

. a t 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 p etitioner ’ 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 travers e 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. ” ( Duva ll

, 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. 48 0

– 48 1

. ) However, t he Duvall court outlined the procedures to follow when a respondent d oes 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 inform ation is not readilyIn re JENKINS Opinion of the Court by Guerrero, C. J.

39 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 ( s ee 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 ( s ee pt. II.B

. , ante )

. 24 In this part we consider additional duties aris ing from habeas

corpus procedural law that apply upon the mere allegation of a
B rady violation. Specifically, we consider respondent’s duty in filing an informal response prior to the issua nce 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 R ule 3.8(d) , the Attorney General may disclose the evidence to promote justice as a policy matter. Further, t he 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 .)In re JENKINS Opinion of the Court by Guerrero, C. J.

40 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 th e 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 underlyi ng such claim. 26
The informal response is a judicially created procedure

. ( S ee Romero

, supra , 8 Cal.4th at pp. 741

– 7 42 [outlining history

25 While our order limiting the issue to be briefed and argued suggested that this duty was t he 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 ha ving custody of or restraini ng the person on whose behalf the application is made ”].) However, the Attorney General must also comply with the habeas corpus procedural duties specif ied in this opinion when acting on behalf of respondent as counsel

. 26 Agai n, the fact that respondent has knowledge, whether actual or constructive, of the evidence does not establish that the evidence is material or exculpatory.In re JENKINS Opinion of the Court by Guerrero, C. J.

41 of the development of the use of informal responses in habeas

corpus proceedings]

. ) W e 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 inf ormal

response . (See In re Robbins (1998) 18 Cal.4th 770, 798, fn. 20 [“Nothing in

. . . Duvall

, supra , 9 Cal.4th 464, [ 47 6 ], 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. ( S ee 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 d uties 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.In re JENKINS Opinion of the Court by Guerrero, C. J.

42 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 al lowing a petitioner to file a reply to the informal response ( see Romero

, supra , 8 Cal.4th at p. 74 1 ) to summarily reject a petition for habeas corpus on the basis of “ fact ual 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 confid entiality provisions prohibit the Attorney General from confirming the exist ence of
the evidence and the petitioner has failed to utilize available procedures to seek access to the evidence )

. 28 This limited

In addition, i f the evidence does not in fact exist, contrary to our hypothetical positing that the Attorney General has knowledge of its existence , respo ndent 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 toIn re JENKINS Opinion of the Court by Guerrero, C. J.

43 restriction i s 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 i ssuance of an order to show cause,
different rules apply. As w e outlined ante , Duvall requires a respondent to plead facts respons ive 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. 4 76.) 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 allege d 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 admit ted
or de n ied 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 thi s hypothetical scenario, t he Attorney General would have knowledge of such evidence given his role in administer ing the state ’s depository of criminal history records. ( Cf. § 1110 5,In re JENKINS Opinion of the Court by Guerrero, C. J.

44 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 cl aim , the Attorney General generally may file an informal response on behalf of a respondent that neither
confirm s nor disput es the existence of the alleged Brady
evidence . However, the Attorney General shall not file an informal response c ontend ing that the petitioner has failed to
demonstrate the existence of the evidenc e where the Attorney
General has knowledge of , or is in actual or constructive possession of, the evidence

, without providing a reasoned explana tion 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 . Fu r ther, a t 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 appropr iate in responding to the petitioner’s claim. Thus, with respect to a Brady claim, the respondent might argue that the evidence i s not material.In re JENKINS Opinion of the Court by Guerrero, C. J.

45 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, w e 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 part s 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 ca rry its Duvall pleading dut y when a statute, such as Welfare and Institutions Code section 827
, restricts the disclos ure 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 c ourt. In her reply brief, Jenkins does not dispute that Welfare and Institutions Code section 827 restricts the disclosure of the allege d 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 part s II.A

. , II.B

. , and II.C

. , ante

.In re JENKINS Opinion of the Court by Guerrero, C. J.

46 Welfare and Institutions Code section 827 has long since “repose[d] in the juvenile court control of juvenile records .” ( T.N.G. v. Superior C our t (1971) 4 Cal.3d 767, 780.) The statute

“ requires the permission of the court before any information about ju veniles is disclosed to third parties by any law
enforcement official.” ( Ibid .) In J.E. v. Superior C our t (2014)
223 Cal.App.4th 1329 ( J.E .)

, the Court of Appeal provided an
overview of Welfare and Institution s 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 gra nt access to confidential juvenile records’ to unauthorized persons. [Cita ti on.] This statutory scheme reflects a legislative determination that the juvenile court has ‘both the “ ‘sensitivity and expertise’ to make decisions about access to juvenile

rec ords.” ’ ” ( J.E.

, at p. 1337, f n s

. omitted.)

The J.E. cou rt also summarized the in camera review procedures specified by Welfare and Institutions Code
section 827 and California Rule s of Court, rule 5.552 that govern

a p etition 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 theIn re JENKINS Opinion of the Court by Guerrero, C. J.

47 “ 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. 13 36 , c iting , inter a li a , Ritchie

, supra , 480 U.S. at pp. 57

– 58.) The J.E . court noted that, in Ritchie , t he 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. 13 36 , citing Ritchie , at pp. 5 9

– 61 .)
T he 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 p p

. 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, c iting, inter alia, People v. Martinez (2009) 47 Cal.4th 399, 450

– 454.) And, as we described in Johnson , “ T he 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 theIn re JENKINS Opinion of the Court by Guerrero, C. J.

48 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, i n Johnson , we cited Ritchie
and J.E

. , as provid ing the “ procedure used for confidential juvenile records

. ” ( Ibid

. )
Finally, in People v. Stewart (2020) 55 Cal.App.5th 755 ( Stewart ) , the Court of Appeal conclud ed 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

p p. 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
St ewart 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, andIn re JENKINS Opinion of the Court by Guerrero, C. J.

49 referring [the defendant] to the section 827 procedure to obtain
it

, ” but had failed to do so. ( Id

. at p. 7 7 5.)

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 t he Attorney General is himself prohibited from disclosing the evidence pursuant to Welfare and
Institutions Code section 827

. Applying such law, we conclude
that the A ttorney General may satisfy his Brady duty under
such circumstances by: (1) informing the petitioner or petitioner’s counsel that the materials alleged ly 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 availa ble 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 R ule 3.8 specifies
that it “does not require disclosure of information protected from disclosure by federal or California laws and rules

, ” a s discussed in the previou s paragraph , the A ttorney 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.)In re JENKINS Opinion of the Court by Guerrero, C. J.

50 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 Welf are and Institutions Code
section 827 disclosure bar

. Permitting a respondent to file s uch 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 shoul d 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 Wel fare and Institutions Code
section 827. By filing such a return, respondent also will serve the salutary purpose of alert ing the habeas corpus court of the possibl e 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 th at 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 confidential ity procedures. However, the existence of such confidentiality provisions do es not relieve the Attorney General
of the various disclosure duties outlined in this opinion. Instead

,In re JENKINS Opinion of the Court by Guerrero, C. J.

51 when faced with such a petition, the Attorney Gen eral should proceed as outlined in this part and

, in so doing

, will comply
with the duties we have described in this opinion w ithout 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 Brad y , the Attorney General has a constitutional duty of disclosure that exists as of the time of the filing of the petition as o utlined 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

. W here 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 s tate s 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 def inition

, b e 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 Cod e section 827, the Attorney General may satisfy those duties by proceeding as outlined in part II.D

. , ante

.In re JENKINS Opinion of the Court by Guerrero, C. J.

52 after the issuance of an order to show cause as outlined in part
III.C

. , ante

. Finally, w here 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), t he Attorney General’s constitutional and ethical obligations exist independently from respondent’ s duty under habeas corp us 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.

I n light of the Attorney General’s admittedly deficient litigation practices in the Court of Appeal

, 35 as well as our clarificatio n 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 inf ormal 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. ” W hile we appreciate the Attorney General’s eventual concessions, w e emphasize that we do not condone such errors and that a prudent prosecutor should take care to not make these mistakes in the future.In re JENKINS Opinion of the Court by Guerrero, C. J.

53 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 outline d in this opinion. In remanding, we express no opinion on the merits of Jenkins’s petition for writ of habeas corpus.
Finally, w e 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 prosecut ion 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
fu rther 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.)In re JENKINS Opinion of the Court by Guerrero, C. J.

54 DISPOSITION

T he 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.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
, 202 3

__________________________________________________________
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 , Attorney s General, Lance E. Winters

, Chief Assistant Attorney General, Susan Sullivan Pithey and Jeffrey M. Laurence , Assistant Attorney s 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