IN THE SUPREME COURT OF

CALIFORNIA

In re JASMINE JENKINS

on Habeas Corpus.

S267391

Second Appellate District, Division One

B301638

Los Angeles County Superior Court

BA467828

March 27, 2023

Chief Justice Guerrero authored the opinion of the Court, in

which Justices Corrigan, Liu, Kruger, Groban, Jenkins, and 

Evans concurred.
1

In re JENKINS

S267391

Opinion of the Court by Guerrero, C. J.

After a jury found her guilty of voluntary manslaughter, 

Jasmine Jenkins appealed and filed a petition for writ of habeas 

corpus in the Court of Appeal. In the writ petition, she claimed

the prosecution had suppressed evidence at trial in violation of 

Brady v. Maryland (1963) 373 U.S. 83 (Brady). Specifically, 

Jenkins alleged the People had suppressed evidence that the 

victim and a key witness had previously been prosecuted for 

aggravated assault arising from an incident that occurred 

12 years earlier, which Jenkins asserted would have supported 

her claim of self-defense. To support her allegations, Jenkins 

attached as an exhibit an appellate court opinion downloaded 

from LexisNexis that apparently referred to the prior 

prosecution.

The Attorney General filed an informal response and, 

after the Court of Appeal issued an order to show cause, 

submitted a brief in support of his return, arguing Jenkins had 

failed to present sufficient evidence of the prior case forming the 

basis of her Brady claim. In particular, the Attorney General 

argued that the appellate opinion was “nothing but an apparent 

printout of an unspecified and unverified Internet source.” 

The Court of Appeal assumed the opinion from the prior 

case referred to the victim and the witness, but it concluded the 

evidence of prior prosecution was not material under Brady and 

denied Jenkins’s petition for writ of habeas corpus.
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 her Brady claim. The 

Attorney General filed an answer stating he had no “obligation 

to provide additional evidence” pertaining to Jenkins’s petition

for writ of habeas corpus. Specifically, the Attorney General 

maintained he had no constitutional, ethical, or procedural duty

to disclose evidence of the alleged prior prosecution in response 

to Jenkins’s petition. We granted Jenkins’s petition for review 

on the limited issue of the Attorney General’s duties, if any, to 

disclose evidence in response to a habeas corpus petitioner’s 

Brady claim. 

We conclude that the Attorney General has both a 

constitutional and an ethical duty to disclose evidence in

response to a petition for writ of habeas corpus alleging a Brady

violation under certain specified circumstances. In addition, we 

conclude that the respondent to such a petition has a duty to 

disclose evidence forming the basis of the Brady claim under 

circumstances that we describe. We explain how these duties

may be performed when, as in this case, the evidence forming 

the basis of the Brady claim in a petition for writ of habeas 

corpus is subject to statutory disclosure restrictions. Finally, we 

apply these conclusions in Jenkins’s case and reverse the 

judgment of the Court of Appeal and remand the matter to that 

court for further proceedings consistent with this opinion. 
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 Kayuan Mitchell.1 Victim 

Brittneeh Williams (Brittneeh)2 and Mitchell had a daughter

together. 

One evening in January 2018, Mitchell and Brittneeh got 

into a fight during which Mitchell assaulted Brittneeh. Jenkins 

arrived at the scene of the fight and taunted Brittneeh. Mitchell 

got into Jenkins’s car and Jenkins started to drive away. After 

phoning her sister, Sade Williams (Sade), Brittneeh drove after 

Jenkins and Mitchell. 

During the car chase, Jenkins complied with Mitchell’s

direction to pull into a gas station. Brittneeh also pulled into 

the gas station. Brittneeh came over to Jenkins’s car, shouted 

at Jenkins, and possibly punched her through an open window. 

Mitchell got out of Jenkins’s car and tried to restrain Brittneeh.

As Mitchell and Brittneeh continued to fight, Jenkins 

exited her car with a large kitchen knife and became involved in 

the fight. Jenkins stabbed Brittneeh three times with the knife, 

killing her, just as Sade arrived at the scene. Sade testified that 

Jenkins stabbed Brittneeh while Mitchell held Brittneeh in a 

bear hug.

1 We provide a brief summary of facts leading to Jenkins’s 

conviction based on the Court of Appeal’s unpublished opinion 

in this matter. (People v. Jenkins (Jan. 22, 2021, B294747, 

B301638) [nonpub. opn.].) 

2 Because the victim and a witness share the same last 

name, after introducing them, we use their first names when 

referring to them individually to avoid confusion.
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 appealed. While her appeal was pending, Jenkins 

filed a petition for writ of habeas corpus in the Court of Appeal.

As relevant here, in her petition for writ of habeas corpus, 

Jenkins claimed that the trial prosecutor suppressed material 

exculpatory evidence in violation of her right to due process. 

Specifically, Jenkins alleged the prosecutor failed to disclose 

that the prosecutor’s office had, in 2006, successfully prosecuted 

Brittneeh and Sade for aggravated assault with hate crime and 

infliction of great bodily injury enhancements.

3 As to Brittneeh, 

Jenkins maintained that evidence of Brittneeh’s prior 

commission of violence would have been admissible to 

demonstrate her character for violence and support Jenkins’s 

claim of self-defense. As to Sade, Jenkins contended that the 

suppressed evidence would have been admissible for 

impeachment purposes, both as evidence of prior acts of moral 

turpitude and as evidence that Sade had lied to the jury when 

she had testified at Jenkins’s trial that Brittneeh had never 

previously acted like a “bully.”

Along with her petition, among other exhibits, Jenkins 

filed a declaration from her trial counsel supporting her 

contention that the prosecutor suppressed the evidence. In his 

declaration, trial counsel stated that Jenkins’s postconviction 

3 Jenkins noted that the Los Angeles County District 

Attorney had prosecuted her case as well as the case allegedly 

involving Brittneeh and Sade. 
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, 

leaving them injured and concussed.” Trial counsel stated, “I 

did not know anything about that case.” 

Attached to trial counsel’s declaration was the Court of 

Appeal opinion (People v. Emerald R. (Mar. 4, 2010, B196643)

[nonpub. opn.] (Emerald R.)), which had been downloaded from 

LexisNexis. As discussed in the opinion, in the matter 

underlying the appeal in Emerald R., a juvenile court declared 

two minors, referred to as “Brit. W.” and “Sade W.,” along with

several other minors, to be wards of the court. The juvenile 

court found the minors committed a series of aggravated 

assaults during an incident that occurred on Halloween night in 

2006. Specifically, the juvenile court found that Brit. W. and 

Sade W. each committed three assaults with force likely to 

produce great bodily injury and found true hate crime 

allegations regarding each assault. In addition, the juvenile 

court found that Brit. W. personally inflicted great bodily injury 

on two victims and that Sade W. personally inflicted great bodily 

injury on another victim. 

The Court of Appeal ordered Jenkins’s petition for writ of 

habeas corpus to be considered with her appeal, solicited an 

informal response to the petition, and permitted Jenkins to file 

a reply to the informal response. 

The Attorney General filed an informal response arguing

that Jenkins had not stated a prima facie case for relief because 

she “offered no competent evidence that either [Brittneeh] or 

[Sade] suffered the adjudications [Jenkins] cite[d], . . . offer[ed]

no evidence that the prosecutor failed to disclose them, 
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. 

opinion,] is nothing but an apparent printout of an unspecified 

and unverified Internet source suggesting a direct appeal 

opinion in which minors ‘Brit W.’ and ‘Sade W.’ are listed as 

defendants, among others. Because [Jenkins] has not provided 

sufficient evidence to show Brittneeh or Sade were the minors 

named, she has already failed to show a prima facie case for 

relief.”

In her reply to the informal response, Jenkins objected to 

the Attorney General’s refusal to acknowledge whether 

Brittneeh and Sade were among the wards in Emerald R., 

stating in part: “[The Attorney General’s4] approach in this case 

is deeply concerning — perhaps even more concerning than the

prosecutor’s failure to disclose this past case, which very well 

may have been inadvertent. Here, [Jenkins] alleged that the 

state suppressed evidence of Brittneeh’s prior assault. The state 

now will not say whether or not this is in fact true, but instead 

plays word games with the Court of Appeal’s opinion in that 

4 Although Jenkins uses the word “respondent” it is clear 

here, and in several other places in her briefing below and in

this court, that she intended to refer to respondent’s counsel, the 

Attorney General, rather than respondent, the Secretary of the 

Department of Corrections and Rehabilitation. (See fn. 25, 

post.) We have replaced the word “respondent” with “Attorney 

General” in those instances in which it is clear Jenkins intended 

to refer to the Attorney General.
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 instead “should issue an Order to Show 

Cause, obtain formal pleadings — where the state can admit or 

deny in a verified answer whether Brittneeh was or was not the 

defendant in the prior assault case that [the Attorney General’s] 

own office handled — and order an evidentiary hearing in the 

unlikely event that a factual dispute remains after respondent

answers this allegation under penalty of perjury.” 

The Court of Appeal issued an order to show cause. The 

Attorney General filed a two-paragraph return on behalf of 

respondent that provided in relevant part: “Respondent alleges 

that [Jenkins] is not entitled to relief because the prosecutor did 

not violate Brady . . . by failing to disclose [Brittneeh’s] and 

[Sade’s] purported prior juvenile adjudications for an incident
In 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 

argument first provided in the informal response that 

“Exhibit B, Attachment B is nothing but an apparent printout 

of an unspecified and unverified Internet source suggesting a 

direct appeal opinion in which minors ‘Brit W.’ and ‘Sade W.’ are 

listed as defendants, among others.” The Attorney General also 

argued that, even assuming Brittneeh and Sade were among the 

wards in Emerald R., Jenkins had not “shown that the 

prosecutor suppressed these prior adjudications.” Finally, the 

Attorney General argued, also in the alternative, that Jenkins 

had failed to show any of the allegedly suppressed evidence was 

material.

In her traverse, Jenkins argued respondent had filed a 

“conclusory general denial” that “plead[ed] no other facts and 

denie[d] none of the numerous other facts pled in the [p]etition.” 

Jenkins noted that respondent’s brief in support of the return 

made clear that “respondent still questions whether [the 

Emerald R. case] even involved the Williams sisters.” Jenkins 

argued further that the deficient return made it difficult to 

“isolate any disputed facts which may require an evidentiary 

hearing.” In particular, with respect to the issue of whether 

Brittneeh and Sade were the wards in the Emerald R. case, 

Jenkins argued that respondent had failed its duty under 

Duvall to either admit or deny the allegations in the petition or 

to instead allege “ ‘(i) he or she has acted with due diligence; 

(ii) crucial information is not readily available; and (iii) that 

there is good reason to dispute certain alleged facts . . . .’ ”
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 requested an evidentiary hearing on this 

factual dispute. 

Along with her traverse, Jenkins filed a brief that argued, 

“[L]est there be any real question as to whether this case 

involved someone other than the Williams sisters, petitioner is 

attaching to this Memorandum . . . a 2007 news article from the 

Long Beach Press Telegram . . . describing how teenaged ‘sisters 

Brittneeh and Sade Williams . . .’ and others were ‘convicted of 

assault’ for ‘beating three . . . women . . .’ on ‘Halloween night.’ ”

Jenkins filed the quoted article as well as the Emerald R. 

opinion, this time downloaded from Westlaw. The newspaper 

article states that Brittneeh and Sade Williams were among the 

minors involved in an incident that appears to form the basis of 

the offenses described in the Emerald R. opinion. 

The Court of Appeal affirmed Jenkins’s manslaughter 

conviction and denied her petition for writ of habeas corpus.

Regarding the petition for writ of habeas corpus, the Court of 

Appeal began its analysis by stating, “In 2006, the Williams 

sisters, both juveniles, were declared wards of the court due to 

their having committed three hate-crime assaults with force 

likely to produce great bodily injury. [Emerald R., supra,

B196643.]” Following this statement, the Court of Appeal 

included a footnote that provides: “The juveniles in [Emerald 

R.], are referred to as ‘Brit. W.’ and ‘Sade W.’, which 

[r]espondent contends fails to establish they were the Williams 

sisters here. That is a fair point, but for present purposes we 

will assume Brit. W. and Sade W. were Brittneeh and Sade 

Williams.” 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

10

The Court of Appeal explained that Jenkins contended the 

prosecutor violated her constitutional right to due process

pursuant to Brady and its progeny by failing to disclose the 

adjudications before trial. According to the Court of Appeal, 

Jenkins maintained that had she known about the 

adjudications, she would have used them to demonstrate that

Brittneeh was the aggressor in their fight, and to impeach 

Sade’s credibility.

After assuming that the prosecutor should have disclosed 

the adjudications and that they would have been admissible at 

trial, the Court of Appeal concluded that Jenkins’s Brady claim 

failed because “there is no reasonable probability that disclosure 

of the 2006 adjudication[s] would have altered the outcome of 

trial.”

C.

Jenkins filed a petition for review of the Court of Appeal’s 

denial of the writ petition. The Attorney General filed an 

answer stating he had no “obligation to provide additional 

evidence confirming that Brittneeh and Sade had, in fact, 

suffered the prior juvenile adjudications.” 

We granted Jenkins’s petition for review and limited the 

issue to be briefed and argued to the following: “Where a habeas 

petitioner claims not to have received a fair trial because the 

District Attorney failed to disclose material evidence in violation 

of Brady . . . — and where the Attorney General has knowledge 

of, or is in actual or constructive possession of, such evidence —

what duty, if any, does the Attorney General have to 

acknowledge or disclose that evidence to the petitioner? Would 

any such duty be triggered only upon issuance of an order to 

show cause?”
In re JENKINS

Opinion of the Court by Guerrero, C. J.

11

II.

Jenkins claims the Attorney General cannot 

constitutionally or ethically suppress exculpatory evidence 

relevant to a habeas corpus petitioner’s Brady claim that the 

Attorney General knows, or reasonably should know, he 

possesses. She argues further that the Attorney General must 

disclose such evidence in his possession upon the filing of a 

habeas corpus petitioner’s verified allegations alleging its 

existence.

We consider the Attorney General’s constitutional duty to 

disclose alleged Brady evidence in habeas corpus proceedings in 

part II.A., post, and his ethical duty to disclose such evidence in 

part II.B., post. In part II.C., post, we consider the duties of the 

respondent to a petition for writ of habeas corpus alleging a 

Brady claim that arise from the procedural law governing such

petitions. In part II.D., post, we consider how the Attorney 

General and the respondent may carry out these duties in a 

case, such as this, in which the alleged Brady evidence consists 

of juvenile records subject to statutory disclosure restrictions. 

Finally, in part II.E., post, we summarize our conclusions and 

apply them to Jenkins’s case. 

A.

Jenkins contends the due process clause of the Fourteenth 

Amendment to the federal Constitution prohibits the Attorney 

General from defending a Brady claim by “[s]uppressing the 

[s]ame [e]vidence the [trial] [p]rosecutor [s]uppressed.”5 

5 Jenkins also contends in summary fashion, “Even [i]f the 

Attorney General [m]ay [s]uppress [e]vidence under the 
In 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 their sovereign obligation to ensure “that ‘justice 

shall be done.’ ” ’ ” (Association for Los Angeles Deputy Sheriffs 

v. Superior Court (2019) 8 Cal.5th 28, 39 (Deputy Sheriffs), 

quoting Cone v. Bell (2009) 556 U.S. 449, 451 (Cone).)

“Prosecutors, as agents of the sovereign, must honor these 

obligations.” (Deputy Sheriffs, supra, 8 Cal.5th at p. 39.) “ ‘A

prosecutor is held to a standard higher than that imposed on 

other attorneys because of the unique function he or she 

performs in representing the interests, and in exercising the 

sovereign power, of the state.’ ” (People v. Hill (1998) 17 Cal.4th 

800, 820; accord, Banks v. Dretke (2004) 540 U.S. 668, 696

(Banks) [“We have several times underscored the ‘special role 

played by the American prosecutor in the search for truth in 

criminal trials’ ”].) 

One special obligation that a prosecutor bears under our 

system pertains to the disclosure of evidence favorable to a 

defendant. That duty “trace[s] its origins to early 20th-century 

strictures against misrepresentation and is of course most 

prominently associated with [the United States Supreme]

Court’s decision in Brady . . . .” (Kyles v. Whitley (1995) 514 U.S. 

419, 432 (Kyles).) “Under Brady, supra, 373 U.S. 83, and its 

[f]ederal Constitution . . . this [c]ourt [s]hould [b]ar [s]uch 

[c]onduct under the Due Process Clause of the [s]tate 

Constitution.” However, Jenkins fails to develop her state 

constitutional argument, and we decline to address any such 

contention here. (See People v. Guzman (2019) 8 Cal.5th 673, 

683, fn. 7.)
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 Court (Johnson)

(2015) 61 Cal.4th 696, 709 (Johnson).) “ ‘The obligation is not 

limited to evidence the prosecutor’s office itself actually knows 

of or possesses, but includes “evidence known to the others 

acting on the government’s behalf in the case, including 

the police.” ’ ” (People v. Cordova (2015) 62 Cal.4th 104, 123

(Cordova).)

We have not previously had occasion to consider the 

Attorney General’s duty, if any, under Brady and its progeny to 

disclose evidence forming the basis of a habeas corpus 

petitioner’s Brady clam. However, numerous courts in other 

jurisdictions “have held that when state investigators or 

prosecuting officers know of favorable evidence before or during 

a defendant’s trial, the State’s duty to disclose the evidence 

continues to posttrial proceedings that are determinative of

guilt or innocence.” (State v. Harris (Neb. 2017) 893 N.W.2d 440, 

454 (Harris); see, e.g., Whitlock v. Brueggemann (7th Cir. 2012) 

682 F.3d 567, 588 (Whitlock) [“As we explained at length before, 

Brady and its progeny impose an obligation on state actors to 

disclose exculpatory evidence that is discovered before or during 

trial. See [Steidl v. Fermon (7th Cir. 2007)] 494 F.3d [623,] 627–

630. This obligation does not cease to exist at the moment of 

conviction”]; High v. Head (11th Cir. 2000) 209 F.3d 1257, 1264, 

fn. 8 [“The fact that the State had not provided High’s trial 

counsel with the audiotape does not dictate that the State would 

not have given the audiotape to his first habeas counsel if he had 

made a specific request for that item. The State’s duty to 

disclose exculpatory material is ongoing”]; Thomas v. Goldsmith

(9th Cir. 1992) 979 F.2d 746, 749–750 [“We do not refer to the 
In 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].)

The Seventh Circuit’s decision in Steidl v. Fermon, supra,

494 F.3d 623 (Steidl) is particularly instructive. In Steidl, a 

former prisoner brought a suit under section 1983 of title 42 of 

the United States Code against several Illinois state police 

officials for violating his constitutional rights under Brady.

6

(Steidl, at p. 625.) The defendants were not involved in Steidl’s 

case prior to his conviction. (Ibid.) However, while Steidl’s

postconviction proceeding was pending, the defendants learned

of certain exculpatory evidence that the government had 

possessed prior to the time of trial. (Ibid.) Notwithstanding this

knowledge, the defendants failed to disclose the evidence. 

(Ibid.) After his release, Steidl brought a claim in which he 

contended that the defendants’ act in “conceal[ing] exculpatory 

evidence from the courts during his post-conviction proceedings” 

6 Steidl filed suit against several other defendants in 

addition to the Illinois State Police officials. (See Steidl, supra, 

494 F.3d at p. 626.) However, these other defendants were not 

parties to the Steidl appeal. (Ibid.) Thus, for ease of reference 

we refer to the Illinois State Police officials as defendants. 
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 qualified immunity, they filed an interlocutory 

appeal. (Steidl, supra, 494 F.3d at p. 625.) On appeal, the Steidl

court “agree[d] with the district court that the Brady line of 

cases has clearly established a defendant’s right to be informed 

about exculpatory evidence throughout the proceedings, 

including appeals and authorized post-conviction procedures, 

when that exculpatory evidence was known to the state at the 

time of the original trial.” (Ibid.) The Steidl court reasoned in 

part: “In our view, Brady, Ritchie,

[7] and the other cases in this 

line impose on the state an ongoing duty to disclose exculpatory 

information if, as Brady put it, that evidence is material either 

to guilt or to punishment and available for the trial. . . . For 

evidence known to the state at the time of the trial, the duty to 

disclose extends throughout the legal proceedings that may 

affect either guilt or punishment, including post-conviction 

proceedings. Put differently, the taint on the trial that took 

place continues throughout the proceedings, and thus the duty 

to disclose and allow correction of that taint continues. We 

cannot accept the implicit premise of the state’s position here, 

which is that Brady leaves state officials free to conceal evidence 

from reviewing courts or post-conviction courts with impunity, 

even if that concealment results in the wrongful conviction of an 

7

In Ritchie, which we discuss in greater detail in part II.D., 

post, the United States Supreme Court stated that a state’s 

“duty to disclose [under Brady] is ongoing; information that may 

be deemed immaterial upon original examination may become 

important as the proceedings progress.” (Pennsylvania v. 

Ritchie (1987) 480 U.S. 39, 60, italics added (Ritchie).)
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 referring to the 

government’s obligations under Brady in the postconviction 

context.

Further, we note that Steidl may not be distinguished on 

the ground that it involved a police officer’s duty under Brady, 

while, in this case, we consider the duty of the Attorney General. 

As the Steidl court explained, it is the government who 

ultimately is obligated to comply with the disclosure 

requirements imposed by Brady and its progeny. (Steidl, supra, 

494 F.3d at pp. 630–631, citing Youngblood v. West Virginia

(2006) 547 U.S. 867, 869–870; accord, Johnson, supra, 

61 Cal.4th at p. 716 [“ ‘suppression by the Government is a 

necessary element of a Brady claim’ ” (italics added)]; People v. 

Williams (2013) 58 Cal.4th 197, 256, quoting Kyles, supra, 

514 U.S. at p. 434 [“ ‘A “reasonable probability” of a different 

result is accordingly shown when the government’s evidentiary 

suppression “undermines confidence in the outcome of the 

trial” ’ ” (italics added)].) And, of course, the Attorney General 

acts on behalf of the government. (See Cal. Const., art. V, § 13 

[“the Attorney General shall be the chief law officer of the State. 

It shall be the duty of the Attorney General to see that the laws 

of the State are uniformly and adequately enforced”].) 
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 outset of habeas litigation 

merely because a habeas petition raises a Brady claim.” We

agree with the Attorney General insofar as he argues that a 

petitioner’s allegations of a Brady violation do not determine the 

existence of the Attorney General’s Brady duties.8 Where the 

evidence underlying a Brady habeas corpus claim would not 

have been subject to disclosure by the government prior to 

conviction — because, for example, such evidence was not 

favorable to the defendant and material — then the Attorney 

General has no Brady duty to disclose the evidence in 

postconviction proceedings. 

However, just like a prosecutor at trial, it is also true that 

the Attorney General’s determination as to whether the evidence 

is subject to disclosure under Brady also is not dispositive as to 

the existence of a constitutional duty. Therefore, it may be the 

case that the Attorney General “disclose[s] a favorable piece of 

evidence” in a case in which it is unclear whether Brady 

mandates disclosure. (Kyles, supra, 514 U.S. at p. 439; see 

Deputy Sheriffs, supra, 8 Cal.5th at p. 40.) “This is as it should 

be.” (Kyles, at p. 439.) Further, determining whether Brady

8 We note that while a petitioner’s allegations are not 

determinative of the Attorney General’s constitutional duty 

under Brady, such allegations do inform a respondent’s duties 

pursuant to our state’s habeas corpus procedures in filing a 

return to a petition for writ of habeas corpus alleging a Brady

violation. (See part II.C., post.) 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

18

applies to a piece of evidence may be easier in the postconviction 

context given that its materiality, or lack thereof, may be more 

apparent than it is before judgment. (Cf. Kyles, at pp. 438–439 

[recounting government’s argument that materiality is difficult 

to determine prior to judgment]; Deputy Sheriffs, at p. 40 [“it 

may be difficult to know before judgment what evidence will 

ultimately prove material”].) 

The Attorney General also broadly suggests he has no 

duty under Brady in the postconviction context, even if the 

evidence at issue was favorable to the defendant and material, 

was available at trial, and was suppressed. He argues that the 

purpose of Brady is to “safeguard . . . the right to a fair trial,” 

and that “[w]hen a trial is over, Brady’s disclosure command 

lacks purpose and dissipates.” 

We generally agree with the Attorney General’s 

assessment of Brady’s purpose. But we disagree that relieving 

him of the disclosure requirements of Brady — in the context of 

a habeas corpus proceeding — serves that purpose. To 

understand why, we review the purpose of our state’s habeas

corpus proceedings: “The California Constitution has protected 

the right to seek relief by habeas corpus since our state’s 

founding. [Citations.] Habeas corpus, we have explained, ‘often 

represents a prisoner’s last chance to obtain judicial review’ of a 

criminal conviction. [Citation.] The law preserves this avenue 

to relief in service of principles of substantial justice: ‘ “Despite 

the substantive and procedural protections afforded those 

accused of committing crimes, the basic charters governing our 

society wisely hold open a final possibility for prisoners to prove 

their convictions were obtained unjustly.” ’ ” (In re Friend

(2021) 11 Cal.5th 720, 736 (Friend).)
In re JENKINS

Opinion of the Court by Guerrero, C. J.

19

The postconviction Brady obligation that we outline today 

supports the right to a fair trial and is fully compatible with the 

purpose of habeas corpus proceedings. Under Brady and its 

progeny, securing a conviction by failing to disclose material 

exculpatory evidence violates due process. (Brady, supra, 

373 U.S. at p. 86; Johnson, supra, 61 Cal.4th at pp. 709–710.) 

Imposing a continuing duty of disclosure on the government in 

this context is consistent with both the due process right on 

which Brady is based, and the “principles of substantial justice”

on which our state’s long-standing habeas corpus tradition is 

founded. (Friend, supra, 11 Cal.5th at p. 736.) 

The Attorney General also contends that, “It would be 

incongruous to graft Brady, a trial principle of constitutional 

criminal procedure, onto a postconviction civil proceeding with 

its own comprehensive procedural structure.” While it is true 

that “[a] habeas corpus proceeding is not a criminal action” 

(Maas v. Superior Court (2016) 1 Cal.5th 962, 975), and may be 

characterized as “ ‘civil in nature’ ” for some purposes (Briggs v. 

Brown (2017) 3 Cal.5th 808, 838), we have generally refrained 

from deciding “ ‘whether a habeas corpus proceeding is civil or 

criminal,’ ” noting that “ ‘[i]t is a special proceeding and not 

entirely analogous to either category.’ ” (Id. at p. 838, fn. 15, 

quoting In re Scott (2003) 29 Cal.4th 783, 815, fn. 6 (Scott); see 

also Maas, at p. 975, citing Pen. Code, pt. 2, tit. 12, ch. 1, § 1473 

et seq. [“the Legislature likewise . . . labeled the habeas corpus 

proceeding a ‘Special Proceeding [] of a Criminal Nature’ ”].)

9

 In 

any event, we see nothing incongruous about applying a rule 

designed to ensure that convictions are premised on due process 

9 Unless otherwise specified, all subsequent statutory 

references are to the Penal Code.
In re JENKINS

Opinion of the Court by Guerrero, C. J.

20

to a procedure designed to “ ‘ “hold open a final possibility for 

prisoners to prove their convictions were obtained unjustly.” ’ ”

(Friend, supra, 11 Cal.5th at p. 736.) 

Nor does the Attorney General cite any case from this 

court, or any other, holding that the government, in 

postconviction proceedings, lacks a duty to disclose Brady

material that was available to the government at the time of 

trial. The primary authority the Attorney General relies on, 

District Attorney’s Office for Third Judicial Dist. v. Osborne

(2009) 557 U.S. 52 (Osborne), does not support the Attorney 

General’s position. The defendant in Osborne sued Alaska 

officials in federal court alleging a violation of section 1983 of 

title 42 of the United States Code based, in part, on his claim 

that the due process clause gave him the right to access DNA 

evidence that “had been unavailable at trial.” (Osborne, at p. 61, 

italics added.) In considering whether the defendant had such 

a constitutional right “to obtain postconviction access to the 

State’s evidence for DNA testing” (ibid.), the Osborne court

observed that “[t]he availability of technologies not available at 

trial cannot mean that every criminal conviction, or even every 

criminal conviction involving biological evidence, is suddenly in 

doubt.” (Id. at p. 62, italics added.) The Osborne court reasoned 

further that “[t]he dilemma [of] how to harness DNA’s power to 

prove innocence without unnecessarily overthrowing the 

established system of criminal justice,” was a problem to be 

solved “primarily [by] the legislature.” (Ibid.)

The Osborne court acknowledged that the defendant had 

“a liberty interest in demonstrating his innocence with new 

evidence under state law.” (Osborne, supra, 557 U.S. at p. 68.) 

After discussing that state law, the Osborne court observed that 

a “ ‘state-created right can, in some circumstances, beget yet 
In 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 concluded

that the Ninth Circuit “went too far . . . in concluding that the 

Due Process Clause requires that certain familiar preconviction 

trial rights be extended to protect Osborne’s postconviction 

liberty interest.” (Ibid.) The Supreme Court explained that, 

unlike before trial when a defendant is entitled to the 

presumption of innocence, “[t]he State . . . has more flexibility in 

deciding what procedures are needed in the context of 

postconviction relief. ‘[W]hen a State chooses to offer help to 

those seeking relief from convictions,’ due process does not 

‘dictat[e] the exact form such assistance must assume.’ 

[Citation.] Osborne’s right to due process is not parallel to a 

trial right, but rather must be analyzed in light of the fact that 

he has already been found guilty at a fair trial, and has only a 

limited interest in postconviction relief. Brady is the wrong 

framework.” (Id. at p. 69.)

While Osborne certainly “distinguish[es] between the 

pretrial and the posttrial obligation to provide exculpatory 

evidence” (Barnett v. Superior Court (2010) 50 Cal.4th 890, 906

(Barnett)), we do not understand Osborne as holding that the 

government lacks a duty to disclose, in the postconviction 

context, Brady evidence that was available prior to conviction. 

It is notable that Osborne repeatedly stated the evidence at 

issue in that case was unavailable at trial (see Osborne, supra, 

557 U.S. at pp. 61, 62), unlike the present case. And the Osborne

court’s reason for declining to extend Brady to evidence 

discovered in the postconviction context — namely, that the 

defendant received “a fair trial” (id. at pp. 68, 69), also does not 

apply where the prosecution violates Brady at trial. (See, e.g., 

Cone, supra, 556 U.S. at pp. 459, 472 [determining that evidence 
In 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 that Osborne sought was not exculpatory evidence that 

had been in existence at the time of his original trial. Instead, 

he was seeking the opportunity to collect and submit entirely 

new, and he hoped exculpatory, evidence. The Court rejected 

the argument that Brady required the state to allow the 

defendant access to these new tests because the defendant had 

already been ‘proved guilty after a fair trial.’ [Citation.] But

Brady continues to apply to an assertion that one did not receive 

a fair trial because of the concealment of exculpatory evidence 

known and in existence at the time of that trial.” (Whitlock, at 

pp. 587–588.)

The Whitlock court noted further that the Steidl court 

decided only whether the government’s Brady duty applied to 

evidence “known and in existence at the time of that trial”

(Whitlock, supra, 682 F.3d at p. 588), and that it did not decide 

whether Brady applied to “ ‘evidence discovered post-trial.’ ”

(Ibid., quoting Steidl, supra, 494 F.3d at p. 629; see also Steidl, 
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”

(Harris, supra, 893 N.W.2d at p. 457, italics added), Osborne 

does not stand for the proposition that the Attorney General 

may constitutionally continue to suppress material exculpatory 

evidence in habeas corpus proceedings that was suppressed by 

a prosecutor at the time of trial. (Whitlock, at p. 587; see also 

Thompson v. City of Chicago (7th Cir. 2013) 722 F.3d 963, 972

[following Whitlock]; Collins v. City of New York (E.D.N.Y. 2013)

923 F.Supp.2d 462, 474 [“In Osborne, [supra, 557 U.S. at 

pages 68–69,] the Supreme Court held that Brady does not 

require disclosure of exculpatory evidence — such as DNA 

testing — that was or could be created after trial. [Citation.] 

Since Collins’s Brady claim involves nondisclosure of evidence 

in existence at the time of trial, Osborne does not apply”].) In 

sum, as was true of the police official defendants in Whitlock, we 

similarly conclude that the Attorney General reads Osborne too 

broadly. 

Nor are we persuaded by the Attorney General’s argument

that “regardless of the applicability of Brady 

postconviction, . . . logic and practicality” dictate that there can 

be no ongoing Brady violation once a petitioner files a petition

for writ of habeas corpus claiming a Brady violation. As for 

logic, the Attorney General reasons, “The very allegation that 

given information was suppressed means that the petitioner is 

now aware of the evidence, which is no longer suppressed.” This 

contention is unpersuasive because the mere assertion of a 

Brady claim does not always demonstrate the petitioner has 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

24

sufficient direct or concrete evidence to support the allegations. 

Often it is through habeas corpus proceedings, that such 

evidence is revealed. (See, e.g., Banks, supra, 540 U.S. at 

pp. 682, 685 [noting that the petitioner alleged in a habeas 

corpus proceeding “ ‘upon information and belief’ ” that 

prosecution failed to disclose witness’s identity as an informant, 

and that, several years later, in a habeas corpus evidentiary 

hearing, a deputy sheriff “acknowledged, for the first time, that 

[the witness] was an informant”]; In re Bacigalupo (2012) 

55 Cal.4th 312, 316 [describing reference proceeding that 

spanned “several hearings over a three-year period,” and during 

which “17 witnesses were called” to determine whether 

prosecution failed to disclose information it obtained from a 

confidential informant].) In addition, the mere assertion of a 

Brady claim in a habeas corpus proceeding does not necessarily 

provide a sufficient evidentiary record for a court to resolve such 

claim. (See, e.g., Pham v. Terhune (9th Cir. 2005) 400 F.3d 740, 

743 [ordering discovery of laboratory notes forming the basis of 

a Brady claim and stating “[o]nce [the] notes have been 

disclosed, the Brady issue is for the district court to decide in the 

first instance”].)

The Attorney General’s “practicality” argument is 

similarly unpersuasive. The fact that, as the Attorney General 

argues, the petitioner “knows enough to seek [the evidence]” 

does not provide any assurance that the evidence will be 

revealed given that, as the Attorney General acknowledges, “a 
In 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 resulting in a sentence of 15 years or 

more].) Thus, we express no opinion regarding the Attorney 

General’s postconviction statutory discovery duties under 

section 1054.9 or court-ordered discovery following an order to 

show cause. (See Scott, supra, 29 Cal.4th at p. 813 [after order 

to show cause issues, the “scope of discovery in habeas corpus 

proceedings has generally been resolved on a case-by-case 

basis”].)

We also express no opinion regarding the Attorney 

General’s duty in a hypothetical situation described in his brief, 

“in which no petition for a writ of habeas corpus has been filed 

alleging a Brady violation but the Attorney General becomes 

aware of evidence that should have been disclosed at trial 

pursuant to Brady.” 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

26

suppressed in violation of Brady11 — the Attorney General has 

a constitutional duty under Brady to disclose the evidence.

12

 

B.

Jenkins claims the “[e]thics [r]ules [a]lso [p]rohibit the 

Attorney General from [s]uppressing [e]vidence.” 

Rule 3.8 of the Rules of Professional Conduct (Rule 3.8) 

provides in relevant part: “The prosecutor in a criminal case 

11 At oral argument, the Attorney General acknowledged the 

potential constitutional dimension to his disclosure duties in the 

habeas corpus context, stating, for example, that “there may 

well be some due process . . . based obligation to 

disclose . . . evidence” where a district attorney fails to turn over 

Brady material. The Attorney General also stated, “[W]e are not 

denying that there may be a constitutional imperative behind 

this obligation.” 

However, the Attorney General expressed skepticism as to 

the applicability of the Brady right in the postconviction context

because, according to the Attorney General, the postconviction 

context varies considerably from that which exists prior to 

conviction. Specifically, the Attorney General argued that while 

Brady obligates the prosecutor to proactively disclose 

information to further the factfinding function of a trial, “when 

a habeas claim is filed it is not for the purpose of investigating 

potential violations.” We emphasize the Brady duty we 

recognize in this opinion is limited to circumstances in which the

Attorney General has knowledge of, or is in actual or 

constructive possession of, allegedly suppressed evidence that is 

referenced in a petition for writ of habeas corpus. Given our 

disposition remanding the case to the Court of Appeal for 

further proceedings, we find it unnecessary to consider what 

circumstances would demonstrate constructive possession in 

this context. 

12 In part II.D., post, we discuss how the Attorney General 

may comply with his disclosure obligations in a case in which 

the alleged Brady material is subject to confidentiality 

provisions under Welfare and Institutions Code section 827. 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

27

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

evidence or information known to the prosecutor that the 

prosecutor knows or reasonably should know tends to negate the 

guilt of the accused, mitigate the offense, or mitigate the 

sentence, except when the prosecutor is relieved of this 

responsibility by a protective order of the tribunal.” 

We have not previously had occasion to consider the 

Attorney General’s ethical duty, if any, pursuant to Rule 3.8(d) 

in postconviction proceedings generally and thus have not 

considered his duty as it pertains to a habeas corpus proceeding 

alleging a Brady violation.

13

 The Attorney General argues both 

that the rule has no application “in any postconviction scenario,” 

and that Rule 3.8(d) should not “be viewed as imposing a duty 

of disclosure independent of settled habeas procedures . . . .” We 

disagree with both contentions. 

As to whether Rule 3.8(d) applies in postconviction 

settings, case law describing a prosecutor’s ethical duties in the 

postconviction context decided before Rule 3.8(d) was adopted

supports such application. Specifically, this court has 

repeatedly recognized that prosecutors have a continuing duty

13

“In 2018, [this court] approved a comprehensive revision 

of the California Rules of Professional Conduct, effective 

November 1, 2018. The new rules replace the former rules, and 

implement a decimal numbering and organizational system 

based on the American Bar Association Model Rules of 

Professional Conduct.” (Davis v. TWC Dealer Group, Inc. (2019) 

41 Cal.App.5th 662, 677.) Rule 3.8 became effective as part of 

this revision. 

This court had previously entered an order enacting a rule

of professional conduct, operative November 2, 2017, identical 

in all material respects to Rule 3.8(d), as an amendment to 

former rule 5-110 of the Rules of Professional Conduct. 
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 concluding that a trial 

court had erred in ordering the Attorney General, among others,

to provide certain discovery to a defendant in the postconviction 

setting (see id. at pp. 1256–1257), we stated: “Of course, the 

prosecution has a well-established duty to disclose information 

materially favorable to the defense, even absent a request 

therefor. [Citations.] ‘. . . At trial this duty is enforced by the 

requirements of due process, but [even] after a conviction the 

prosecutor . . . is bound by the ethics of his office to inform the 

appropriate authority of . . . information that casts doubt upon 

the correctness of the conviction.’ [Citation]; see also rule 5-220, 

Rules Prof. Conduct of State Bar;[14] ABA Model Code Prof. 

Responsibility, DR 7-103 (B), EC 7-13; ABA Model Rules Prof. 

Conduct, rule 3.8(d).) [¶] We expect and assume that if the 

People’s lawyers have such information in this or any other case, 

they will disclose it promptly and fully.” (Id. at pp. 1260–1261.)

In In re Steele (2004) 32 Cal.4th 682, we noted the 

Attorney General argued that the fact that prosecutors have a 

continuing ethical duty to disclose exculpatory evidence 

obviated the need to interpret section 1054.9 as providing for the 

postconviction discovery of such evidence: “The Attorney 

General also argues that, as we pointed out in People v. 

Gonzalez, supra, 51 Cal.3d at pages 1260 and 1261, prosecutors 

have a continuing duty to disclose information favorable to the 

14 Former rule 5-220 of the Rules of Professional Conduct 

provided, “A member shall not suppress any evidence that the 

member or the member’s client has a legal obligation to reveal 

or to produce.”
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, in In re Lawley (2008) 42 Cal.4th 1231 (In re

Lawley), we repeated our admonition from Gonzalez concerning 

the continuing ethical duties of a prosecutor — in the 

postconviction setting — to disclose evidence that should have 

been disclosed at trial, this time specifically quoting American 

Bar Association Model Rules of Professional Conduct, rule 3.8(d)

(ABA Model Rule 3.8(d)) as providing, “ ‘The prosecutor in a 

criminal case shall: [¶] . . . [¶] (d) make timely disclosure to the 

defense of all evidence or information known to the prosecutor 

that tends to negate the guilt of the accused or mitigates the 

offense.’ ” (In re Lawley, at p. 1246; see ibid. [“Before and during 

trial, due process requires the prosecution to disclose to the 

defense evidence that is material and exculpatory. [Citations.] 

This obligation continues after trial.” (Citing, inter alia, ABA 

Model Rule 3.8(d))].)

Gonzalez, In re Steele, and In re Lawley all were decided 

during a period when California did not have a specific rule of 

professional conduct mandating that a prosecutor disclose 

exculpatory evidence. Even without a specific rule, this court 
In 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 pages 1260–1261 

and In re Lawley, supra, 42 Cal.4th at page 1246, we relied on

ABA Model Rule 3.8(d) in noting the existence of such a duty.

With the adoption of Rule 3.8(d), California now has a 

specific rule of professional conduct mandating the disclosure of 

exculpatory evidence by prosecutors. The adoption of a rule of 

professional conduct that is based in part on ABA Model 

Rule 3.8(d) — which this court has repeatedly relied on in 

concluding that prosecutors have a disclosure obligation in the 

postconviction context — supports our conclusion that 

Rule 3.8(d) similarly applies in postconviction settings. 

The Attorney General argues that the “language [of 

Rule 3.8(d)] suggests exclusively pretrial application.” We are 

not persuaded. The text of Rule 3.8(d) contains no language 

expressly limiting its application to proceedings prior to

conviction. Nor do we infer any limitation based on the language 

cited by the Attorney General. The Attorney General notes that 

Rule 3.8(d) refers to “the accused” (Rule 3.8(d)), a description the 

Attorney General contends is inapt when referring to a 

convicted defendant. Similarly, the Attorney General notes that 

Rule 3.8(d) refers to the “defense,” a description that technically 

does not apply to a petitioner in a habeas corpus proceeding.

The Attorney General’s textual arguments ascribe too much 

significance to terms we take to be shorthand references to a

person who is, or who has been, the subject of criminal 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

31

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

15 (Cf. People v. 

Superior Court (Pearson) (2010) 48 Cal.4th 564, 573 [rejecting 

district attorney’s argument that “the Legislature’s use of the 

word ‘defendant’ rather than ‘petitioner’ in section 1054.9,” 

demonstrated that the Legislature was not “creat[ing] discovery 

in a separate habeas corpus matter”].) Further, the Attorney 

General fails to cite any authority attaching import to the use of 

the terms “accused” or “the defense” in language derived from 

ABA Model Rule 3.8(d), a provision that we have previously 

found applicable in postconviction proceedings. (See In re

Lawley, supra, 42 Cal.4th at p. 1246; cf. Com’n for Lawyer 

Discipline v. Hanna (Tex.Ct.App. 2016) 513 S.W.3d 175, 180–

181 [stating “we hesitate to hold that the term ‘accused’

standing alone is conclusive” while discussing Texas 

Disciplinary Rules of Professional Conduct, rule 3.09(d), which 

like Rule 3.8(d) “was modeled after [ABA Model] Rule 3.8(d)”].) 

We also reject the Attorney General’s contention that 

Rule 3.8(d) should not be interpreted to apply in postconviction 

proceedings because “ ‘timely’ ” disclosure “is no longer possible” 

in habeas corpus proceedings where guilt has been adjudicated. 

Timeliness must be measured in relation to the proceeding in 

which the disclosure is at issue. (See Rule 3.8, com. [3] [“A 

disclosure’s timeliness will vary with the circumstances”].) 

When applied to postconviction proceedings, Rule 3.8(d)’s 

requirement that the prosecutor “make timely disclosure” is 

15 Although not specifically mentioned by the Attorney 

General, we have also considered that Rule 3.8 refers 

generically to a “prosecutor in a criminal case,” and does not 

specifically refer to the Attorney General in habeas corpus 

proceedings.
In re JENKINS

Opinion of the Court by Guerrero, C. J.

32

reasonably interpreted as mandating timeliness in those

proceedings.

Nor are we persuaded by the Attorney General’s argument

that “the inclusion of rules that expressly do apply 

postconviction” demonstrates that Rule 3.8(d) does not apply in 

this postconviction setting. (Italics added, citing Rule 3.8(f) &

(g).)

16 The fact that Rule 3.8(f) and (g) refer to a “convicted” 

defendant, while Rule 3.8(d) does not use that term, can be 

explained by the fact that Rule 3.8(f) and (g) apply exclusively to 

convicted defendants, while Rule 3.8(d) also applies prior to 

conviction.

17

 

16 Rule 3.8(f) provides: “When a prosecutor knows of new, 

credible and material evidence creating a reasonable likelihood 

that a convicted defendant did not commit an offense of which 

the defendant was convicted, the prosecutor shall: 

“(1) promptly disclose that evidence to an appropriate court or 

authority, and 

“(2) if the conviction was obtained in the prosecutor’s 

jurisdiction, 

“(i) promptly disclose that evidence to the defendant unless a 

court authorizes delay, and 

“(ii) undertake further investigation, or make reasonable efforts 

to cause an investigation, to determine whether the defendant 

was convicted of an offense that the defendant did not commit.” 

Rule 3.8(g) provides: “When a prosecutor knows of clear 

and convincing evidence establishing that a defendant in the 

prosecutor’s jurisdiction was convicted of an offense that the 

defendant did not commit, the prosecutor shall seek to remedy 

the conviction.”

17 In addition, the paragraph of ABA Model Rule 3.8(d) from 

which Rule 3.8(d) was drawn was first adopted in 1977 (see 

Attorney Grievance v. Cassilly (Md.Ct.App. 2021) 262 A.3d 272, 
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 postconviction settings, 

we consider the Attorney General’s argument that Rule 3.8(d) 

does not establish any additional “duty of disclosure” beyond 

that provided for by the law governing habeas corpus 

procedures. The Attorney General’s argument is based on 

comment [3] to Rule 3.8, which provides in part that Rule 3.8(d) 

should not be “applied in a manner inconsistent with statutory 

and constitutional provisions governing discovery in California 

courts.” This argument fails because even assuming that

respondent’s duties that we describe in part II.C., post, are

discovery provisions binding on the Attorney General,

18 the 

Attorney General has not demonstrated how “imposing a duty 

of disclosure [pursuant to Rule 3.8(d)] independent of settled 

habeas procedures establishing a duty on the part of the 

311), while the paragraphs of the ABA Model Rule 3.8 from 

which Rule 3.8(f) and (g) were drawn were not adopted until 

2008. (See Cassilly, at p. 311.) The adoption of these provisions 

at different times provides a practical explanation for drafting 

terminology differences. (Cf. United Riggers & Erectors, Inc. v. 

Coast Iron & Steel Co. (2018) 4 Cal.5th 1082, 1093 [“Different 

bills, drafted by different authors, passed at different times, 

might well use different language to convey the same basic 

rule”].)

18 As a technical matter, the law governing petitions for writ 

of habeas corpus binds the respondent to such a petition — in

this case, the Secretary of the Department of Corrections and 

Rehabilitation. (See fn. 25, post.) Rule 3.8(d) prescribes the 

ethical duties of respondent’s counsel, the Attorney General. 

Further, we are not convinced that the procedural duties we 

describe in part II.C., post, arising from our case law governing 

petitions for writ of habeas corpus, should be interpreted as

“statutory . . . provisions governing discovery” within the 

meaning of comment [3] to Rule 3.8.
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, while we reject the Attorney General’s 

argument that comment [3] to Rule 3.8 limits his duty of

disclosure to that prescribed in the procedural law governing 

habeas corpus proceedings, we do not suggest that Rule 3.8(d) 

imposes duties beyond those specified in statutory and 

constitutional provisions governing discovery in California 

courts. 

In fact, we note that the ethical duty in Rule 3.8(d) appears 

to be similar to the prosecutor’s statutory duty at trial to provide 

discovery of “ ‘[a]ny exculpatory evidence.’ ” (Cordova, supra, 

62 Cal.4th at p. 124, quoting § 1054.1, subd. (e).)

19 That duty 

“requires the prosecution to provide all exculpatory evidence, 

not just evidence that is material under Brady and its progeny.” 

(Cordova, at p. 124; see also Barnett, supra, 50 Cal.4th at p. 901 

[for purposes of postconviction discovery under § 1054.9, “[i]f 

petitioner can show he has a reasonable basis for believing a 

specific item of exculpatory evidence exists, he is entitled to 

receive that evidence without additionally having to show its 

materiality”]; accord, Deputy Sheriffs, supra, 8 Cal.5th at p. 40 

[noting that “[s]tatutory and ethical obligations may require 

even more” than the disclosure of material evidence and citing 

§ 1054.1, subds. (d)–(e) and Rule 3.8(d) & com. [3]].)

19 While it is unnecessary for us to decide whether the two 

duties are identical, we emphasize that nothing in this opinion 

should be understood to prescribe a duty of disclosure 

“inconsistent with statutory and constitutional provisions 

governing discovery in California courts.” (Rule 3.8, com. [3].)
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 We reject any such argument. Comment [3] to 

Rule 3.8 expressly states, “The disclosure obligations in 

paragraph (d) are not limited to evidence or information that is 

material as defined by Brady . . . and its progeny.” This court’s 

approval of Rule 3.8(d) and the accompanying comment makes 

clear that the ethical disclosure obligation under Rule 3.8(d) is 

not limited to evidence material to a conviction. 

Accordingly, we conclude that, pursuant to Rule 3.8(d), in 

responding to a petition for writ of habeas corpus alleging a 

Brady violation, the Attorney General has an ethical duty to

make timely disclosure to the petitioner of all evidence or 

information known to the Attorney General that was available

but not disclosed at trial21 that the Attorney General knows or 

reasonably should know tends to negate the guilt of the 

petitioner, mitigate the offense, or mitigate the sentence, except 

when the Attorney General is relieved of this responsibility by a 

protective order of the tribunal.

22

20 In his answering brief, the Attorney General argues, “No 

ethical rule would have required the Attorney General in this 

case to disclose records the Attorney General did not consider 

material to the trial outcome.” 

21 The parties have not briefed, and we do not consider, 

whether Rule 3.8(d) requires disclosure of evidence that was not 

available at trial.

22 The Attorney General also cites another portion of 

comment [3] to Rule 3.8, which provides that the rule “ ‘does not 
In 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 parts II.A. and II.B., ante, a

respondent to a petition for writ of habeas corpus alleging a 

Brady claim also has duties that arise from procedural law

governing such petitions.

We begin by summarizing well established law governing 

petitions for writ of habeas corpus. (Duvall, supra, 9 Cal.4th at 

pp. 474–475.) In Duvall, we outlined a habeas corpus 

petitioner’s initial pleading burden: “To satisfy the initial 

burden of pleading adequate grounds for relief, an application 

for habeas corpus must be made by petition, and ‘[i]f the 

imprisonment is alleged to be illegal, the petition must also state 

in what the alleged illegality consists.’ [Citation.] The petition 

should both (i) state fully and with particularity the facts on 

which relief is sought [citations], as well as (ii) include copies of 

reasonably available documentary evidence supporting the 

claim, including pertinent portions of trial transcripts and 

affidavits or declarations. [Citations.] ‘Conclusory allegations 

made without any explanation of the basis for the allegations do 

not warrant relief, let alone an evidentiary hearing.’ [Citation.]

We presume the regularity of proceedings that resulted in a 

require disclosure of information protected from disclosure by 

federal or California laws and rules.’ ” Thus, the Attorney 

General argues Rule 3.8(d) would not compel disclosure of the 

evidence at issue in this case because it consists of confidential 

juvenile court records protected from dissemination pursuant to 

Welfare and Institutions Code section 827. We discuss in part 

II.D., post, how the Attorney General may comply with his 

ethical duty of disclosure in cases involving records subject to 

Welfare and Institutions Code section 827.
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.)

“An appellate court receiving such a petition evaluates it 

by asking whether, assuming the petition’s factual allegations 

are true, the petitioner would be entitled to relief.” (Duvall,

supra, 9 Cal.4th at pp. 474–475.) The court may request that 

the respondent provide an “informal written response.” (Cal. 

Rules of Court, rule 8.385(b)(1); see also id., rules 4.551(b)

[“informal response” in noncapital habeas corpus proceedings in 

superior court], 4.573(a) [“informal written response” in capital

habeas corpus proceedings in superior court].) 

In People v. Romero (1994) 8 Cal.4th 728, 742 (Romero) we 

described the “screening function” that an informal response 

serves in resolving petitions for writ of habeas corpus: “Through 

the informal response, the custodian or real party in interest 

may demonstrate, by citation of legal authority and by 

submission of factual materials, that the claims asserted in the 

habeas corpus petition lack merit and that the court therefore 

may reject them summarily, without requiring formal pleadings 

(the return and traverse) or conducting an evidentiary hearing.

If the petitioner successfully controverts the factual materials 

submitted with the informal response,[23]or if for any other 

reason the informal response does not persuade the court that 

the petition’s claims are lacking in merit, then the court must 

proceed to the next stage by issuing an order to show cause or 

the now rarely used writ of habeas corpus. Deficiencies in the 

23 The Romero court noted that a petitioner is afforded an 

opportunity to file a reply to any informal response. (Romero,

supra, 8 Cal.4th at p. 741; see Cal. Rules of Court, rules

8.385(b)(3), 4.551(b)(2), 4.573(a)(3).)
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 return, the respondent is required to 

“ ‘allege facts tending to establish the legality of petitioner’s 

detention.’ ” (Id. at p. 476.) “Those facts are not simply the 

existence of a judgment of conviction and sentence when the 

petitioner challenges his restraint in prison. The factual 

allegations of a return must also respond to the allegations of 

the petition that form the basis of the petitioner’s claim that the 

confinement is unlawful. [Citations.] In addition to stating 

facts, the return should also, ‘where appropriate, . . . provide 

such documentary evidence, affidavits, or other materials as will 

enable the court to determine which issues are truly disputed.’ ” 

(Ibid., fn. omitted.) Following the filing of the return, the 

petitioner may file a pleading called a traverse that responds to 

the facts pleaded in the return. (Ibid.) 

In Duvall, we emphasized that the “requirement that the 

return allege facts responsive to the petition is critical, for the 

factual allegations in the return are either admitted or disputed 

in the traverse and this interplay frames the factual issues that 

the court must decide.” (Duvall, supra, 9 Cal.4th at p. 477.) 

Further, we specifically “reiterate[d] our disapproval of the 

practice of filing returns that merely contain a general denial of 

a habeas corpus petitioner’s factual allegations.” (Id. at 

pp. 480–481.) However, the Duvall court outlined the 

procedures to follow when a respondent does not have access to 

information needed to either admit or deny a factual allegation 

of the petition. In such circumstances, the “return should set 

forth with specificity: (i) why information is not readily 
In 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 (see pt. II.A., ante), and to the extent the evidence is

subject to Rule 3.8(d), the Attorney General has an independent 

ethical duty to disclose the evidence (see pt. II.B., ante).

24 In 

this part we consider additional duties arising from habeas 

corpus procedural law that apply upon the mere allegation of a 

Brady violation. Specifically, we consider respondent’s duty in 

filing an informal response prior to the issuance of an order to 

show cause, and respondent’s duty in filing a return should a 

court issue an order to show cause. 

24 In addition, even where disclosure is not mandated by 

Brady or Rule 3.8(d), the Attorney General may disclose the 

evidence to promote justice as a policy matter. Further, the 

Attorney General’s disclosure of allegedly suppressed evidence 

in response to a petition for writ of habeas corpus alleging a 

Brady violation is not necessarily an admission or concession on 

the merits because, as noted in part II.A., ante, the Attorney 

General may disclose the evidence in an attempt to comply with

his Brady duty even where a court ultimately concludes that 

Brady did not mandate disclosure. (Kyles, supra, 514 U.S. at 

p. 439; Deputy Sheriffs, supra, 8 Cal.5th at p. 40.) 
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 the existence of any exculpatory 

evidence. Thus, the analysis depends on whether the mere 

allegation of a Brady violation in a petition for writ of habeas 

corpus triggers a respondent’s duty under our habeas corpus 

case law to disclose the existence of known evidence underlying 

such claim.26

The informal response is a judicially created procedure. 

(See Romero, supra, 8 Cal.4th at pp. 741–742 [outlining history 

25 While our order limiting the issue to be briefed and argued 

suggested that this duty was the Attorney General’s, as a 

technical matter, the duty belongs to the Attorney General’s 

client, respondent Secretary of the Department of Corrections 

and Rehabilitation. (See § 1477 [stating that a writ of habeas 

corpus “must be directed to the person having custody of or 

restraining the person on whose behalf the application is 

made”].) However, the Attorney General must also comply with 

the habeas corpus procedural duties specified in this opinion 

when acting on behalf of respondent as counsel.

26 Again, the fact that respondent has knowledge, whether 

actual or constructive, of the evidence does not establish that 

the evidence is material or exculpatory.
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].) We are not aware of any case law, and 

Jenkins cites none, holding that a respondent must come 

forward with affirmative evidence of any kind in an informal 

response. (See In re Robbins (1998) 18 Cal.4th 770, 798, fn. 20 

[“Nothing in . . . Duvall, supra, 9 Cal.4th 464, [476], suggests, 

much less holds, that respondent is obligated to 

provide . . . documentary evidence in an informal response,” 

that will “ ‘ “enable the court to determine which issues are truly 

disputed” ’ ”].) Nor do the relevant rules of court that now 

govern informal responses in habeas corpus proceedings specify 

any such duty. (See Cal. Rules of Court, rules 8.385(b), 4.551(b),

4.573(a).) Further, the “screening function” (Romero, at p. 742) 

that an informal response serves — allowing for the 

identification of facially deficient petitions — does not support 

imposing such a duty. 

Therefore, we agree with the Attorney General that, prior

to the issuance of an order to show cause, in an informal 

response, respondent may choose to neither “confirm nor 

dispute” the existence of the alleged Brady evidence and may 

argue instead that, assuming the existence of the evidence, the 

evidence is not subject to Brady.

27 Permitting respondent to 

27 Again, we emphasize that we are discussing here only the 

respondent’s duties under the law governing habeas corpus 

petitions in responding to an allegation of a Brady violation. If 

the allegedly suppressed evidence is in fact subject to Brady

and/or Rule 3.8(d), the Attorney General has a duty to disclose 

the evidence as outlined in part II.A. and/or part II.B., ante, 

respectively. 
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 allowing 

a petitioner to file a reply to the informal response (see Romero, 

supra, 8 Cal.4th at p. 741) to summarily reject a petition for 

habeas corpus on the basis of “factual materials” submitted in 

an informal response (id. at p. 742, italics added), we do impose 

one restriction on a respondent’s informal response. 

Specifically, we conclude that, if the Attorney General has 

knowledge of, or is in actual or constructive possession of,

evidence underlying a habeas corpus petitioner’s Brady claim, 

he shall not file an informal response on behalf of respondent

that argues the petitioner has failed to present “documentary 

evidence supporting the claim” (Duvall, supra, 9 Cal.4th at 

p. 474), unless the Attorney General explains the basis for such 

an argument (e.g., by explaining that confidentiality provisions 

prohibit the Attorney General from confirming the existence of 

the evidence and the petitioner has failed to utilize available 

procedures to seek access to the evidence).

28

 This limited 

In addition, if the evidence does not in fact exist, contrary 

to our hypothetical positing that the Attorney General has 

knowledge of its existence, respondent may argue that the 

evidence does not exist. 

28 In discussing his responsibilities in filing an informal 

response responding to a habeas corpus petitioner’s Brady

claim, the Attorney General proposes a similar restriction, 

stating, “[W]hen the Attorney General has ready access to 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

43

restriction is sufficient to guard against the possibility that a 

court would summarily reject a petition on the erroneous 

premise that the evidence does not exist, when in fact the 

Attorney General has knowledge of the existence of the 

evidence.

However, after the issuance of an order to show cause,

different rules apply. As we outlined ante, Duvall requires a

respondent to plead facts responsive to the petitioner’s 

allegations, including “ ‘where appropriate, . . . provid[ing] such 

documentary evidence, affidavits, or other materials as will 

enable the court to determine which issues are truly disputed.’ ” 

(Duvall, supra, 9 Cal.4th at p. 476.) Thus, as the Attorney 

General acknowledges, “This obligation to allege facts would 

ordinarily include acknowledging the existence of alleged Brady

evidence known to or possessed by the Attorney General.” We 

agree. 

Thus, for example, if a habeas corpus petitioner alleged

that a prosecution witness had a prior conviction that was 

suppressed at trial under Brady, after the issuance of an order 

to show cause, the Attorney General, on behalf of respondent,

would normally be required to file a return that either admitted

or denied the existence of the prior conviction.

29

 By either 

information that would confirm or dispel the accuracy of 

petitioner’s factual claims, the Attorney General should not 

contest the sufficiency of evidence provided by petitioner 

without providing factual clarification — or identifying a 

statutory inability to do so.” 

29 In this hypothetical scenario, the Attorney General would 

have knowledge of such evidence given his role in administering

the state’s depository of criminal history records. (Cf. § 11105, 
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 claim, the Attorney General generally may file 

an informal response on behalf of a respondent that neither 

confirms nor disputes the existence of the alleged Brady

evidence. However, the Attorney General shall not file an 

informal response contending that the petitioner has failed to 

demonstrate the existence of the evidence where the Attorney 

General has knowledge of, or is in actual or constructive 

possession of, the evidence, without providing a reasoned 

explanation rooted in the Attorney General’s inability to confirm 

the existence of the evidence and petitioner’s failure to utilize 

procedures for obtaining the evidence. Further, at the return

stage, the Attorney General, on behalf of the respondent, shall 

not persist in raising any argument put forth in an informal 

response that the petitioner failed to carry his or her burden of 

showing the evidence exists without providing a reason for why

respondent is unable to confirm or deny the existence of the 

subd. (a)(2)(A) [“ ‘State summary criminal history information’

means the master record of information compiled by the 

Attorney General pertaining to the identification and criminal 

history of a person”].) 

30 At the return stage, the respondent remains free to 

present whatever legal arguments he or she deems appropriate 

in responding to the petitioner’s claim. Thus, with respect to a 

Brady claim, the respondent might argue that the evidence is 

not material. 
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, we first outline the existing law governing the 

government’s Brady obligation in the context of confidential 

records protected by Welfare and Institutions Code section 827. 

We then discuss how this law applies with respect to the 

constitutional, ethical, and habeas corpus procedural duties 

outlined in parts II.A., II.B., and II.C., ante, respectively.33

31 As previously noted, we discuss in part II.D., post, how the 

respondent may carry its Duvall pleading duty when a statute, 

such as Welfare and Institutions Code section 827, restricts the 

disclosure of the evidence underlying the respondent’s pleading 

burden. 

32 Neither party referred to these disclosure restrictions in 

the proceedings in the Court of Appeal or at the petition stage 

in this court. In her reply brief, Jenkins does not dispute that 

Welfare and Institutions Code section 827 restricts the 

disclosure of the alleged adjudications. 

33 Apart from Welfare and Institutions Code section 827, we 

express no opinion as to whether and how other disclosure 

restrictions might apply with respect to the evidence underlying 

a Brady claim in a petition for writ of habeas corpus and how 

such restrictions might affect the duties we have outlined in 

parts II.A., II.B., and II.C., ante.
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 Court (1971) 4 Cal.3d 767, 780.) The statute 

“requires the permission of the court before any information 

about juveniles is disclosed to third parties by any law 

enforcement official.” (Ibid.) In J.E. v. Superior Court (2014) 

223 Cal.App.4th 1329 (J.E.), the Court of Appeal provided an 

overview of Welfare and Institutions Code section 827’s 

confidentiality provisions and the petition procedure that may 

be used by those not specifically statutorily authorized to inspect 

such records to gain access to them, including criminal 

defendants such as Jenkins: “Section 827 specifies who is 

authorized to inspect the files, and it lists the prosecutor as one 

of the authorized persons. An authorized person, in turn, may 

not disclose information from the files to an unauthorized 

person without a court order. . . . [¶] Section 827 also contains 

provisions that permit unauthorized persons to directly petition 

the juvenile court for access to the confidential records.

[Citations.] Under section 827 the juvenile court has ‘exclusive 

authority to determine whether and to what extent to grant 

access to confidential juvenile records’ to unauthorized persons. 

[Citation.] This statutory scheme reflects a legislative 

determination that the juvenile court has ‘both the “ ‘sensitivity 

and expertise’ to make decisions about access to juvenile 

records.” ’ ” (J.E., at p. 1337, fns. omitted.)

The J.E. court also summarized the in camera review 

procedures specified by Welfare and Institutions Code

section 827 and California Rules of Court, rule 5.552 that govern 

a petition for disclosure of confidential juvenile documents. 

(J.E., supra, 223 Cal.App.4th at p. 1338.) The J.E. court 

concluded that these in camera review procedures provide the 
In 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. 1336, citing, inter alia, Ritchie, supra, 

480 U.S. at pp. 57–58.) The J.E. court noted that, in Ritchie, the 

United States Supreme Court held that a defendant’s right to a 

fair trial was sufficiently protected by a trial court’s in camera 

review of confidential child protection agency files that the

defendant sought. (J.E., at p. 1336, citing Ritchie, at pp. 59–61.) 

The Ritchie court stated that the trial court was required to 

disclose the material to the defense if it were to determine the 

confidential files contained Brady material. (Ritchie, at pp. 60–

61.)

The J.E. court explained that Welfare and Institutions 

Code section 827 codified a similar procedure for in camera 

review, and possible disclosure, of juvenile records that “has 

long been recognized as an appropriate vehicle to protect both 

the defendant’s right to a fair trial and the state’s interest in 

confidentiality of the files.” (J.E., supra, 223 Cal.App.4th at 

p. 1338, citing, inter alia, People v. Martinez (2009) 47 Cal.4th 

399, 450–454.) And, as we described in Johnson, “The J.E. court 

explained that, ‘[a]s a practical matter, use of a [Welfare and 

Institutions Code] section 827 petition to secure Brady review 

can also serve to streamline the review process. A section 827

petition filed directly with the juvenile court bypasses the 

prosecutor as an intermediary and allows the court to make the 
In 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, in Johnson, we cited Ritchie

and J.E., as providing the “procedure used for confidential 

juvenile records.” (Ibid.)

Finally, in People v. Stewart (2020) 55 Cal.App.5th 755

(Stewart), the Court of Appeal concluded that the People had 

violated their duty under Brady and its progeny in connection

with a police report that was protected from disclosure by 

Welfare and Institutions Code section 827. The alleged victim 

of the offenses discussed in the police report, which pertained to 

an incident separate from the charged offenses, was a minor and 

a key prosecution witness in the defendant’s case. (Stewart, at 

pp. 761, 776.) After discussing Ritchie, J.E., and Johnson —

“three cases that bear on a prosecutor’s Brady obligation in the 

context of confidential records” (Stewart, at p. 771) — the 

Stewart court concluded that the government had suppressed 

the police report, which contained potentially impeaching 

information as to the alleged victim/witness. (Id. at pp. 775–

776.) The Stewart court reasoned that the People could have 

satisfied their Brady obligation under such case law by 

“informing the defense of the existence of potential 

impeachment material in the police report, making a copy of the 

[police report] available for the juvenile court’s review, and 
In 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. 775.)

This case law informs our assessment of the Attorney 

General’s duty in responding to a petition for writ of habeas 

corpus alleging a Brady violation from the failure to disclose 

evidence in a case in which the Attorney General is himself 

prohibited from disclosing the evidence pursuant to Welfare and 

Institutions Code section 827. Applying such law, we conclude 

that the Attorney General may satisfy his Brady duty under 

such circumstances by: (1) informing the petitioner or 

petitioner’s counsel that the materials allegedly suppressed are 

protected by Welfare and Institutions Code section 827; 

(2) informing the petitioner or petitioner’s counsel of the Welfare 

and Institutions Code section 827 procedure needed to obtain 

such evidence; and (3) after the petitioner files a Welfare and 

Institutions Code section 827 petition, making any such 

evidence that the Attorney General possesses available for a 

juvenile court’s review under that statute. (See Stewart, supra, 

55 Cal.App.5th at p. 775 [outlining prosecutor’s duty with 

respect to such evidence prior to conviction].) 

Similarly, with respect to his ethical duty under 

Rule 3.8(d) under these circumstances, while the Attorney 

General properly notes that comment [3] to Rule 3.8 specifies 

that it “does not require disclosure of information protected from 

disclosure by federal or California laws and rules,” as discussed

in the previous paragraph, the Attorney General need not 

disclose confidential materials. Rather, we conclude that the 

Attorney General may comply with his Rule 3.8(d) duty in the 

same manner as he may comply with his Brady duty with 

respect to confidential materials. (Cf. Stewart, supra, 

55 Cal.App.5th at p. 775.)
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 Welfare and Institutions Code 

section 827 disclosure bar. Permitting a respondent to file such 

a pleading would be consistent with our discussion in Duvall of 

pleading rules to be applied “where access to critical information 

is limited or denied to one party.” (Duvall, supra, 9 Cal.4th at 

p. 485.) Such a pleading would also be consistent with the 

requirement in Duvall that the “return should set forth with 

specificity . . . why information is not readily available.” (Ibid.) 

The Attorney General should also state in respondent’s return 

that the petitioner or petitioner’s counsel may utilize the 

procedure specified in that statute to attempt to obtain such 

evidence and make any such evidence he possesses available for 

a juvenile court’s review under Welfare and Institutions Code 

section 827. By filing such a return, respondent also will serve 

the salutary purpose of alerting the habeas corpus court of the 

possible need for ancillary proceedings in the juvenile court 

before the habeas corpus court can “endeavor to determine 

whether there are facts legitimately in dispute that may require 

holding an evidentiary hearing.” (Duvall, at p. 485.)

In sum, in responding to a petition for writ of habeas 

corpus alleging a Brady violation based on a failure to disclose 

evidence when the Attorney General is himself prohibited from 

disclosing that evidence pursuant to Welfare and Institutions 

Code section 827, the Attorney General need not, and should 

not, himself disclose the evidence in contravention of statutory 

confidentiality procedures. However, the existence of such 

confidentiality provisions does not relieve the Attorney General 

of the various disclosure duties outlined in this opinion. Instead, 
In re JENKINS

Opinion of the Court by Guerrero, C. J.

51

when faced with such a petition, the Attorney General should 

proceed as outlined in this part and, in so doing, will comply 

with the duties we have described in this opinion without 

contravening the disclosure restrictions contained in Welfare 

and Institutions Code section 827.

E.

To recap, where allegedly suppressed evidence forming 

the basis of a Brady claim in a petition for writ of habeas corpus

is in fact subject to Brady, the Attorney General has a 

constitutional duty of disclosure that exists as of the time of the 

filing of the petition as outlined in part II.A., ante.

34 Where such 

evidence is not subject to Brady, but is subject to Rule 3.8(d), the 

Attorney General has an ethical duty of disclosure that exists as 

of the time of the filing of the petition as outlined in part II.B., 

ante. Where such evidence is neither subject to Brady nor 

subject to disclosure under Rule 3.8(d), respondent has a duty to 

disclose the existence of the evidence under Duvall that arises 

34 The Attorney General states in his brief that in cases in 

which the material underlying a Brady petition for writ of 

habeas corpus is in fact Brady material, as a “policy decision,” 

he will either: (1) provide the material directly to the petitioner, 

or (2) if the evidence is subject to disclosure restrictions, provide 

the petitioner with notice sufficient to permit the petitioner to 

seek court-ordered disclosure. We emphasize that the Attorney 

General has a legal duty mandated by Brady and its progeny to 

disclose such evidence. In addition, because evidence that is in 

fact Brady material will also, by definition, be subject to 

Rule 3.8(d), the Attorney General also has an ethical duty to 

disclose such evidence. In addition, as noted in the text, in a 

case in which the evidence is subject to disclosure restrictions 

contained in Welfare and Institutions Code section 827, the 

Attorney General may satisfy those duties by proceeding as 

outlined in part II.D., ante.
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, where such evidence is subject to disclosure 

restrictions contained in Welfare and Institutions Code 

section 827, the Attorney General and the respondent may 

fulfill their duties by proceeding as outlined in part II.D., ante.

We emphasize that where the evidence at issue is actually

Brady material and/or subject to Rule 3.8(d), the Attorney 

General’s constitutional and ethical obligations exist

independently from respondent’s duty under habeas corpus case 

law to respond to a petitioner’s Brady claim. Thus, when 

triggered, such duties exist as of the filing of the petition. In 

addition, the respondent has procedural duties that arise from 

a petitioner’s allegation that are triggered upon the issuance of 

an order to show cause. 

In light of the Attorney General’s admittedly deficient

litigation practices in the Court of Appeal,

35 as well as our 

clarification of the Attorney General’s disclosure duties, it is 

appropriate to remand the matter to the Court of Appeal for 

35 In his merits brief in this court, the Attorney General 

acknowledged that his return in the Court of Appeal was 

“deficient . . . because it . . . argued (in part) that petitioner had 

not provided sufficient proof of the alleged juvenile 

adjudications, yet did not provide clarifying materials or plead 

an inability to do so.” In addition, in that brief, the Attorney 

General stated that his informal response in the Court of Appeal 

“did not represent best practices” for similar reasons. At oral 

argument in this court, the Attorney General stated, “We did not 

fulfill our duty to assist the habeas tribunal to understand what 

facts were actually at issue in this case.” While we appreciate 

the Attorney General’s eventual concessions, we emphasize that 

we do not condone such errors and that a prudent prosecutor 

should take care to not make these mistakes in the future. 
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 outlined in this opinion. In 

remanding, we express no opinion on the merits of Jenkins’s 

petition for writ of habeas corpus. 

Finally, we urge the prosecutors in this case, and in every 

other, to carefully consider the constitutional, ethical, and 

habeas corpus procedural duties that we have outlined herein to 

ensure that they faithfully bear the special responsibilities 

ascribed to the prosecution in our system of justice. We remind 

the prosecutors of today of what we said in In re Ferguson (1971) 

5 Cal.3d 525: “The search for truth is not served but hindered 

by the concealment of relevant and material evidence. Although 

our system of administering criminal justice is adversary in 

nature, a trial is not a game. Its ultimate goal is the 

ascertainment of truth, and where furtherance of the adversary 

system comes in conflict with the ultimate goal, the adversary 

system must give way to reasonable restraints designed to 

further that goal. Implementation of this policy requires 

recognition of a duty on the part of the prosecution to disclose 

evidence to the defense in appropriate cases.” (Id. at pp. 531–

532.)
In re JENKINS

Opinion of the Court by Guerrero, C. J.

54

DISPOSITION

The judgment of the Court of Appeal is reversed, and the 

matter is remanded to that court for further proceedings 

consistent with this opinion.

GUERRERO, C. J.

We Concur:

CORRIGAN, J.

LIU, J.

KRUGER, J.

GROBAN, J.

JENKINS, J.

EVANS, J.
See next page for addresses and telephone numbers for counsel who 

argued in Supreme Court.

Name of Opinion In re Jenkins

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) 

Review Granted (unpublished) XX NP opn. filed 1/22/21 – 2d Dist.,

Div. 1

Rehearing Granted

__________________________________________________________

Opinion No. S267391

Date Filed: March 27, 2023

__________________________________________________________

Court: Superior

County: Los Angeles

Judge: Lisa B. Lench

__________________________________________________________

Counsel:

Rudolph J. Alejo, under appointment by the Supreme Court, for 

Petitioner Jasmine Jenkins.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, 

Chief Assistant Attorney General, Susan Sullivan Pithey and Jeffrey 

M. Laurence, Assistant Attorneys General, Zee Rodriguez, Paul Thies, 

Seth K. Schalit and J. Michael Chamberlain, Deputy Attorneys 

General, for Respondent Department of Corrections and 

Rehabilitation.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Rudolph J. Alejo

Attorney at Law

520 South Grand Avenue, 4th Floor

Los Angeles, CA 90071

(213) 243-0300

J. Michael Chamberlain

Deputy Attorney General

455 Golden Gate Avenue, Suite 11000

San Francisco, CA 94102

(415) 510-3775