IN THE SUPREME COURT OF 

CALIFORNIA

THE PEOPLE, 

Petitioner,

v.

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

BRYAN MAURICE JONES,

Real Party in Interest.

S255826

Fourth Appellate District, Division One

D074028

San Diego County Superior Court

CR136371

December 2, 2021

Justice Kruger authored the opinion of the Court, in which 

Chief Justice Cantil-Sakauye and Justices Corrigan, Liu, 

Groban, and Jenkins concurred.
PEOPLE v. SUPERIOR COURT (JONES)

S255826

Opinion of the Court by Kruger, J.

A jury convicted Bryan Maurice Jones of capital murder

and returned a verdict of death in 1994. Decades later, after 

this court affirmed his conviction and death sentence on appeal, 

Jones filed a habeas corpus petition claiming the prosecution 

had used peremptory strikes to discriminate against prospective 

jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79

(Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler). 

In connection with this petition, Jones filed a motion for 

postconviction discovery under Penal Code section 1054.9

seeking access to the prosecutor’s jury selection notes. The trial 

court granted the motion, rejecting the District Attorney’s 

argument that the notes are shielded from disclosure as 

attorney work product. The Court of Appeal affirmed.

We affirm as well. At the Batson/Wheeler hearing, the 

prosecutor had relied on an undisclosed juror rating system to 

explain his reasons for the challenged peremptory strikes. By 

putting the rating system at issue, the prosecutor impliedly 

waived any claim of work product protection over notes 

containing information about the system. The District Attorney 

may not now invoke attorney work product protection to 

withhold information necessary to the fair adjudication of 

Jones’s Batson/Wheeler claim. 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

2

I.

During jury selection at Jones’s 1994 trial, defense counsel

raised multiple objections to the prosecution’s use of peremptory 

strikes to eliminate Black jurors from the jury pool. On each 

occasion, counsel argued the strikes were motivated by race and 

therefore invalid under Batson and Wheeler. 

Jones initially challenged the prosecutor’s strikes of 

prospective jurors Y.J. and C.G. To evaluate Jones’s claim, the 

trial court employed the familiar three-step framework set out 

in Batson. (See, e.g., People v. Williams (2013) 58 Cal.4th 197, 

280.) At the first step of the inquiry, the trial court determined 

that Jones made a prima facie showing of racial discrimination

and proceeded to the second step of the inquiry by asking the 

prosecutor to provide his reasoning for the strikes. The 

prosecutor explained that he used a numerical rating system to 

evaluate prospective jurors sight unseen based on answers in 

their written juror questionnaires; he told the court that both he 

and another member of the prosecution team had assigned Y.J. 

and C.G. low scores using this system. The prosecutor offered 

that Prospective Juror Y.J., for instance, was rated “13th lowest 

of the whole group,” and “[t]here were too many people that are 

[rated] better than her.” The prosecutor went on to elaborate on 

the ratings of Y.J. and C.G. by describing their written answers 

to specific questions on the questionnaires. At the third and 

final step of the inquiry, the trial court accepted the prosecutor’s 

explanations for the two strikes as race neutral and denied 

Jones’s Batson/Wheeler challenge. 

Jones renewed the challenge when the prosecutor struck 

another Black prospective juror, J.Y. After the trial court found 

a prima facie showing of discrimination, the prosecutor similarly 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

3

cited the prospective juror’s low score, explaining that it was 

“based upon our numerical analysis by three people who 

independently read the questionnaire.” The trial court again 

accepted the prosecutor’s explanations and denied the 

challenge.

The seated jury ultimately found Jones guilty and 

returned a verdict of death. On direct appeal of the judgment, 

Jones claimed that the prosecution’s peremptory strikes of Y.J. 

and C.G. were improper and that the prosecutor’s proffered race 

neutral justifications were pretexts for discrimination. (See 

People v. Jones (2013) 57 Cal.4th 899, 916.) We rejected the 

argument, concluding “our usual deference to the trial court’s 

assessment of the prosecutor’s sincerity [was] appropriate” on 

the facts presented.

1

 (Id. at p. 918.) Finding no other reversible 

error, we affirmed Jones’s conviction and sentence. (Id. at 

p. 981.)

In 2014, the year after we decided Jones’s direct appeal, 

and 20 years after the trial, Jones filed a petition for writ of 

habeas corpus in this court. He substantively amended the 

petition in 2018. Among other claims, the amended petition 

alleged that Jones’s trial counsel was ineffective for failing to 

raise and properly litigate Batson/Wheeler challenges. 

1 On direct appeal, Jones also renewed his challenge to the 

removal of Prospective Juror N.S. (See People v. Jones, supra,

57 Cal.4th at p. 916.) With respect to N.S., the trial court had 

ruled there was no prima facie showing of discrimination. 

Because it was unclear whether the trial court had applied the 

correct prima facie case standard, we independently reviewed 

the record and upheld the trial court’s conclusion that Jones 

failed to make out a prima facie case of discrimination 

concerning N.S. (Id. at pp. 919–920.)
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

4

Specifically, the petition asserted that trial counsel was 

deficient for failing to raise a Batson/Wheeler objection when the 

prosecutor used 13 of 17 peremptory challenges to strike women 

(see, e.g., J.E.B. v. Alabama ex rel. T.B. (1994) 511 U.S. 127, 146

[holding that gender is an impermissible basis for the exercise 

of peremptory strikes]; People v. Howard (1992) 1 Cal.4th 1132, 

1158 [same]), and for inadequately litigating Batson/Wheeler

challenges to the removal of Black prospective jurors. The 

amended petition also renewed the Batson/Wheeler claims 

raised on appeal, citing additional evidence not in the trial 

record.

In connection with his habeas petition, Jones filed a 

motion for postconviction discovery in superior court under 

Penal Code section 1054.9 (section 1054.9). The motion

requested production of contemporaneous jury selection notes 

created by the prosecutor and other members of the prosecution 

team as they prepared for and conducted jury selection in 

Jones’s trial.

2 The District Attorney opposed the motion, 

asserting the jury selection notes were core work product 

absolutely protected by Code of Civil Procedure section

2018.030, subdivision (a), and consequently were not 

discoverable. (See Pen. Code, § 1054.6 [“Neither the defendant 

nor the prosecuting attorney is required to disclose any 

materials or information which are work product as defined in 

subdivision (a) of Section 2018.030 of the Code of Civil Procedure

. . . .”].) In reply, Jones argued that the prosecutor “effectively 

2 Jones also requested other items related to jury selection, 

including prosecution policies and training materials and 

records related to other cases tried by the prosecutor. The 

questions on which we granted review concern only the jury

selection notes.
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

5

waived” any work product privilege over the notes when he 

offered reasons for the challenged strikes that were based on 

notes of a juror rating system. Jones further argued the notes 

were subject to disclosure under Evidence Code section 771, 

which requires the production of any writing used to refresh the 

memory of a testifying witness, and that trial counsel would 

have been entitled to the jury selection notes if counsel had 

requested them during the Batson/Wheeler hearing.

The trial court rejected the District Attorney’s work 

product argument and granted Jones’s motion. Voicing general 

agreement with Jones’s arguments, the court determined that 

Jones was entitled to any notes “that could possibly impeach” 

the prosecutor’s comments during the Batson/Wheeler hearings. 

The court observed that without such material, Jones would be 

unable to address the legitimacy of the prosecutor’s reasons for 

striking prospective jurors. 

The District Attorney petitioned for a writ of mandate 

and/or prohibition seeking to vacate the trial court’s order. The 

Court of Appeal summarily denied the petition. We granted the 

District Attorney’s petition for review and transferred the 

matter to the Court of Appeal with instructions to issue an order 

to show cause.

In a published opinion, the Court of Appeal upheld the 

trial court’s order. (People v. Superior Court (Jones) (2019) 34 

Cal.App.5th 75 (Jones).) The Court of Appeal began by 

questioning “whether the work product privilege remains 

absolute when a court has an obligation to evaluate the intent 

of the prosecution, and the written mental impressions 

themselves may reveal an effort to unlawfully exclude 

prospective jurors based on race or gender.” (Id. at p. 81.) The 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

6

court opined that to extend absolute work product protection to 

such writings, as opposed to writings reflecting the attorney’s 

thoughts and opinions about the legal case or trial strategy, 

would be inconsistent with the nature of an inquiry that 

requires trial courts to evaluate the prosecutor’s reasons for 

exercising challenged strikes. (Id. at p. 82.) But even assuming 

jury selection notes are otherwise nondiscoverable work 

product, the court went on to hold that the prosecution had 

waived work product protection. (Id. at p. 83.) Citing both 

Evidence Code section 771 and United States v. Nobles (1975) 

422 U.S. 225, 239 (Nobles), the court reasoned that because the 

prosecutor had used his notes to refresh his recollection about 

the reasons for striking the challenged jurors and because he 

described the numerical evaluations detailed in those notes, the 

opposing party was entitled to see the notes upon request.

(Jones, at pp. 83–85.)

We granted the District Attorney’s petition for review to 

consider whether the trial court’s disclosure order was 

permissible. In addressing this issue, the Court of Appeal 

applied an abuse of discretion standard, which is the usual 

standard for reviewing discovery rulings. (Jones, supra, 34 

Cal.App.5th at p. 79.) But the particular discovery ruling at 

issue in this case encompasses various determinations —

including whether, as Jones has argued, the prosecution waived 

any applicable work product through its litigation conduct —

that arguably call for a more demanding standard of review. 

Several courts have treated claims regarding the waiver of work 

product protections and other privileges as mixed questions of 

law and fact subject to independent review on appeal. (See, e.g., 

Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 842–843; 

McKesson HBOC, Inc. v. Superior Court (2004) 115 Cal.App.4th
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

7

1229, 1235–1236; U.S. v. Sanmina Corp. (9th Cir. 2020) 968 

F.3d 1107, 1116; U.S. v. Lara (4th Cir. 2017) 850 F.3d 686, 690.) 

But not all courts are in accord. (See, e.g., In re Chevron Corp. 

(3d Cir. 2011) 633 F.3d 153, 161 [applying an abuse of discretion 

standard]; In re Grand Jury Proceedings (2d Cir. 2000) 219 F.3d 

175, 182 [same].) We do not resolve the issue here, since neither 

party has briefed it and the answer is immaterial in any event. 

Whether we were to apply independent review or a more 

deferential standard, we would conclude the trial court properly 

ordered disclosure of the requested materials in order to ensure 

fair adjudication of Jones’s Batson/Wheeler claims.

II.

More than four decades ago, this court in Wheeler held 

that the use of peremptory challenges to remove prospective 

jurors on the basis of race or other forms of group bias violates

article I, section 16 of the California Constitution. (Wheeler, 

supra, 22 Cal.3d at pp. 276–277.) Several years later, the 

United States Supreme Court in Batson reached the same 

conclusion under the equal protection clause of the Fourteenth 

Amendment to the United States Constitution. (Batson, supra, 

476 U.S. at p. 86.) As a result of these decisions, a litigant has 

the right to challenge an opponent’s discriminatory use of 

peremptory challenges. But as both the United States Supreme 

Court and this court have repeatedly made clear, the harm of 

the practice is not limited to individual litigants. 

Discrimination in jury selection also does grievous injury to the 

jurors and to “the very integrity of the courts” charged with 

ensuring equal justice for all comers in a diverse society. 

(Miller-El v. Dretke (2005) 545 U.S. 231, 238 (Miller-El); accord,

People v. Gutierrez (2017) 2 Cal.5th 1150, 1154.) 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

8

Courts employ a three-step inquiry to uncover 

unconstitutional discrimination in the exercise of peremptory 

strikes. Once a defendant has made out a prima facie case of 

discrimination, the burden shifts to the prosecution to provide a 

neutral justification for the strike; the trial court must then 

decide whether purposeful discrimination has occurred. 

(Johnson v. California (2005) 545 U.S. 162, 168; People v. 

Williams, supra, 58 Cal.4th at p. 280.)

Although this burden-shifting framework is well 

established, experience has demonstrated “the practical 

difficulty of ferreting out discrimination in selections 

discretionary by nature, and choices subject to myriad 

legitimate influences.” (Miller-El, supra, 545 U.S. at p. 238.) 

Assessing an attorney’s motivation for striking a juror, as 

required at Batson’s third step, is often a sensitive and 

challenging inquiry.3 The trial court must discern the motives 

of the striking attorney by “assess[ing] the plausibility of [the 

attorney’s proffered] reason in light of all evidence with a 

bearing on it.” (Id. at p. 252.) Considering “all evidence with a 

bearing” on the attorney’s motives typically requires the trial 

court to evaluate factors such as the attorney’s demeanor, the 

plausibility of his or her explanations, as well as the court’s own 

observations, if any, about the struck juror as compared with the 

other jurors in the venire. (Ibid.; see also People v. Lenix (2008)

44 Cal.4th 602, 613.) A trial judge may also further question the 

3 As the trial judge remarked in this case: “I will tell you, 

as a long time trial judge, this is a very difficult issue for trial 

judges to deal with because you have an attorney at sidebar and 

he or she is making representations to you as to why a 

peremptory challenge was made, and it’s always been, for this 

Court, a very uncomfortable sidebar.”
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

9

attorney on any particular proffered rationale for a challenged 

strike and may rely on the judge’s own experiences both as an 

attorney and on the bench. “ ‘Usually, “the issue comes down to 

whether the trial court finds the prosecutor’s race-neutral 

explanations to be credible.” ’ ” (People v. Smith (2018) 4 Cal.5th 

1134, 1147, quoting Miller-El v. Cockrell (2003) 537 U.S. 322, 

339.) 

While a trial court’s determination at Batson/Wheeler’s 

third step is ordinarily made on the basis of oral representations

and personal observation, appellate and postconviction review 

is often confined to the written record. Although not limited to 

the precise arguments or evidence presented to the trial court 

on the challenged peremptory strikes (see, e.g., People v. Lenix,

supra, 44 Cal.4th at p. 622), reviewing courts are generally 

constrained to “rely on the good judgment of the trial courts to 

distinguish bona fide reasons for such peremptories from sham 

excuses belatedly contrived to avoid admitting acts of group 

discrimination” (Wheeler, supra, 22 Cal.3d at p. 282). In some 

cases, limitations in the trial record may make it difficult for a 

reviewing court to fully evaluate a claim of Batson/Wheeler

error. 

Attorneys and courts have, on various occasions, relied on 

jury selection notes to provide additional evidentiary support for

Batson/Wheeler claims raised on appeal or in postconviction 

proceedings. Recent decisions of the United States Supreme 

Court offer important examples. In Miller-El, supra, 545 U.S. 

231, for instance, the court granted federal habeas relief to a 

prisoner who alleged that prosecutors impermissibly struck 

Black veniremembers on the basis of race at his trial many years 

earlier. In reaching that conclusion, the high court cited 

considerable evidence bearing on the issue of discrimination, 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

10

including the prosecutor’s notations on jury cards indicating the 

race of each veniremember. The high court observed that “the 

prosecutors’ own notes proclaim that [an] emphasis on race was 

on their minds when they considered every potential juror.” (Id. 

at p. 266.)

In granting the discovery order in this case, the trial court 

pointed specifically to Foster v. Chatman (2016) 578 U.S. 488

[136 S.Ct. 1737] (Foster), in which the prosecution’s jury 

selection notes formed the centerpiece of the petitioner’s claim 

on habeas. The prosecution’s jury selection file, which petitioner 

had obtained through a public records request, unambiguously

revealed the role race played in the prosecution’s

decisionmaking process. The prosecutor had used a highlighter

to identify all of the Black prospective jurors, with the legend 

stating that the highlighting “ ‘represents Blacks.’ ” (Id. at 

p. 1744.) Additionally, the letter B appeared next to each Black 

prospective juror’s name. On the questionnaires of Black jurors, 

the “juror’s response indicating his or her race had been circled.” 

(Ibid.) There were also handwritten notes indicating the 

prosecution’s aversion to seating Black jurors, an investigator’s 

draft affidavit explaining who to select “ ‘[i]f it comes down to 

having to pick one of the black jurors,’ ” and notes that put an N 

(allegedly for no) next to every prospective Black juror’s name. 

(Ibid.) 

Rejecting the state’s entreaties to ignore the jury selection 

file, the high court concluded that the file was not only relevant, 

but dispositive; the prosecutor’s notes revealed a singular focus 

on the jurors’ race that “plainly demonstrate[d] a concerted 

effort to keep black prospective jurors off the jury.” (Foster, 

supra, 136 S.Ct. at p. 1755; see ibid. [“The contents of the 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

11

prosecution’s file . . . plainly belie the State’s claim that it 

exercised its strikes in a ‘color-blind’ manner.”].)

These cases offer particularly prominent examples of how 

jury notes can shed light on an attorney’s contemporaneous 

motives in striking a prospective juror, but they are not isolated 

ones. In Mitcham v. Davis (N.D.Cal. 2015) 103 F.Supp.3d 1091, 

for instance, the federal court reviewed the prosecutor’s jury 

selection notes before granting habeas relief to a California 

prisoner on Batson-related grounds. The notes revealed that the 

prosecutor had kept track of the race of the Black jurors but not 

of other jurors and had rated every Black juror as unacceptable. 

The prosecutor’s notes during the voir dire of one Black juror 

stated: “ ‘Keep if necessary to avoid Wheeler — She would try to 

be fair.’ ” (Id. at p. 1097.) The notes also revealed evidence of 

racial bias in the striking of certain White jurors with Black 

relatives; next to one White juror, he wrote: “ ‘Think her 

husband is black.’ ” (Ibid.)

Jones directs us to other cases in which courts in this state 

and elsewhere have found probative evidence in jury selection 

notes.

4 Many — though not all — of these cases involve similar 

claims of racial bias bolstered by jury selection notes. In one 

case, initially tried in 2002 in North Carolina and overturned on 

collateral review in 2020, newly disclosed jury selection notes 

revealed that prosecutors had described Black veniremembers 

in starkly derogatory terms compared with similarly situated

White veniremembers. For example, a prospective Black juror 

with a criminal record was labeled a “thug[]” while a White 

venireman who prosecutors noted had an “ext[ensive] [criminal] 

4 We granted Jones’s request to take judicial notice of several 

unpublished opinions and pleadings as relevant to this appeal. 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

12

record” was described as a “n[e’er] do well.” Similarly, 

prosecution notes described a prospective Black juror as a “blk. 

Wino — drugs,” but a White veniremember with a drinking 

problem as “drinks — country boy — OK.”

In another case, a Georgia court concluded that jury 

selection notes contributed to the “undeniable” evidence of 

discrimination. (State v. Gates (Ga.Super.Ct., Jan. 10, 2019, 

No. SU-75-CR38335) 2019 Ga.Super. LEXIS 420, p. *4 [Order 

on Defendant’s Extraordinary Motion for New Trial].)5In 1977, 

Johnny Lee Gates, a Black man, was convicted of murder by an 

all-White jury following a three-day trial and sentenced to 

death. Jury selection notes revealed that the prosecutor 

indicated the race and sex of each prospective juror in his notes, 

using the letter W for White prospective jurors and the letter N 

to indicate that prospective jurors were Black. The prosecutor 

described the Black jurors in derogatory terms and gave every 

Black juror the prosecution’s lowest juror rating, while giving 

the lowest rating to only one of the 43 prospective White jurors.

In each of these cases, the jury selection notes proved

important in litigating a claim of discrimination many years 

after the fact. But as is true of any other type of evidence, jury 

selection notes may be relevant to the inquiry even when they 

do not contain a smoking gun. Nor are jury selection notes 

necessarily relevant only to prove improper motivation; they 

5 Because Gates’s trial occurred before Batson, the trial 

court applied the standard set forth in Swain v. Alabama (1965) 

380 U.S. 202, and therefore considered evidence of systemic 

discrimination, including evidence of jury selection notes for 

trials other than Gates’s. Although the court found Gates had 

demonstrated discrimination in jury selection, the court 

ultimately rejected Gates’s claim for procedural reasons.
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Opinion of the Court by Kruger, J.

13

may also counter claims of racial bias. For example, in In re 

Freeman (2006) 38 Cal.4th 630, the petitioner claimed the 

prosecutor had struck prospective jurors he believed were 

Jewish. We concluded that the petitioner did not meet his 

burden to show improperly motivated strikes in part because 

the prosecutor’s notes revealed detailed observations about 

individual veniremembers’ characteristics but made neither 

explicit nor implicit reference to the religion of prospective 

jurors he ultimately excused. (Id. at pp. 642–644.)

6

 

The District Attorney in this case agrees that when jury 

selection notes are available, they often prove relevant, and

sometimes dispositive, particularly in adjudicating 

Batson/Wheeler claims on postconviction review. But as the 

District Attorney correctly notes, neither Foster nor any other 

case binding on this court answers the question when, precisely, 

jury selection notes must be made available for purposes of the 

Batson/Wheeler inquiry.

7

 We now turn to that question as it is 

presented in this case.

6 We note that recording prospective jurors’ race, gender, or 

other characteristics may be benign and may also assist in the 

evaluation of Batson/Wheeler motions by making a complete 

record of the composition of the venire and the seated jury.

7 As explained above, the petitioner in Foster obtained jury 

selection notes through a public records request. This case 

raises no question about the availability of the notes under 

California’s Public Records Act (Gov. Code, § 6250 et seq.).
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Opinion of the Court by Kruger, J.

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III.

The question here arises from a request for postconviction 

discovery under section 1054.9.

8

 Section 1054.9 authorizes 

postconviction discovery in certain felony cases but identifies 

the scope of discoverable materials as those “materials in the 

possession of the prosecution and law enforcement authorities 

to which the same defendant would have been entitled at time 

of trial.” (Id., subd. (c); see id., subd. (a); In re Steele (2004) 32 

Cal.4th 682, 690 (Steele).) The District Attorney contends that 

Jones is not entitled to jury selection notes because Penal Code 

section 1054.6 specifies that, under the statutory discovery 

rules, “[n]either the defendant nor the prosecuting attorney is 

required to disclose any materials or information which are 

work product as defined in subdivision (a) of Section 2018.030 of 

the Code of Civil Procedure.” The District Attorney argues the 

notes constitute protected work product as defined in Code of 

Civil Procedure section 2018.030, subdivision (a) and the court 

therefore may not order their disclosure.

9

8 We are concerned in particular with postconviction 

discovery sought before an order to show cause issues. We 

express no view regarding the available scope of discovery after 

issuance of an order to show cause. (See In re Scott (2003) 29 

Cal.4th 783, 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” and referees may fashion fair 

discovery rules to govern the proceedings]; see id. at p. 814.) 

9 The District Attorney alternatively suggests that the jury 

selection notes are not subject to postconviction discovery orders 

because they are not included in the list of mandatory pretrial 

discovery materials that Penal Code section 1054.1 requires the 

prosecution to provide even absent a disclosure request. But as 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

15

The work product doctrine now codified in Code of Civil

Procedure section 2018.030 was initially developed by courts. In 

an influential statement of the doctrine, the United States 

Supreme Court described the rationale as follows: “[I]t is 

essential that a lawyer work with a certain degree of privacy, 

free from unnecessary intrusion by opposing parties and their 

counsel. Proper preparation of a client’s case demands that he 

assemble information, sift what he considers to be the relevant 

from the irrelevant facts, prepare his legal theories and plan his 

strategy without undue and needless interference.” (Hickman 

v. Taylor (1947) 329 U.S. 495, 510–511; see Coito v. Superior 

Court (2012) 54 Cal.4th 480, 489–494 (Coito) [recounting the 

history of work product doctrine].) When the Legislature later 

codified the doctrine, it assigned attorney work product either 

absolute or qualified protection, depending on the type of 

material at issue. “Absolute protection is afforded to writings 

we explained in Steele, postconviction discovery under section 

1054.9 is not limited to materials the prosecution had “a 

statutory duty to provide” at the time of trial; postconviction 

discovery also extends to, among other things, materials “to 

which the defendant would have been entitled at time of trial 

had the defendant specifically requested them.” (Steele, supra, 

32 Cal.4th at pp. 695, 697.) The criminal discovery statutes 

expressly recognize that the availability of discovery may be 

governed by “other express statutory provisions” and 

constitutional mandates. (Pen. Code, § 1054, subd. (e).) In 

short, the fact that jury selection notes are not included in Penal 

Code section 1054.1 as items of mandatory pretrial discovery, 

along with witness lists and defendant statements, does not 

mean that the jury selection notes are not discoverable under 

section 1054.9. The District Attorney raises no other argument 

that the governing statutes preclude the disclosure of the notes, 

and we do not consider any statutory arguments that have not 

been raised.
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Opinion of the Court by Kruger, J.

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that reflect ‘an attorney’s impressions, conclusions, opinions, or 

legal research or theories.’ ([Code Civ. Proc.,] § 2018.030, 

subd. (a).) All other work product receives qualified protection; 

such material ‘is not discoverable unless the court determines 

that denial of discovery will unfairly prejudice the party seeking 

discovery in preparing that party’s claim or defense or will result 

in an injustice.’ (§ 2018.030, subd. (b).)” (Coito, at p. 485.)

The District Attorney asserts that jury selection notes are 

writings entitled to absolute protection under Code of Civil 

Procedure section 2018.030, subdivision (a) because they reveal 

an attorney’s opinions and impressions of potential jurors. 

Jones, for his part, argues that the work product doctrine does 

not reach opinions and impressions of jurors, as opposed to 

opinions and impressions of the legal case. He characterizes the 

District Attorney’s opposing view as overly broad and unmoored 

from the doctrine’s central purposes — namely, to allow 

attorneys to prepare their cases for trial and to prevent their 

opponents from free-riding on their efforts. (See Code Civ. Proc., 

§ 2018.020.)

We need not resolve this broad dispute about the reach of 

work product protection to answer the question before us, which 

concerns one party’s invocation of the work product doctrine to 

shield matters it had put in issue during the litigation of the 

Batson/Wheeler challenge. Even if we assume that jury 

selection notes are protected work product as defined by Code of 

Civil Procedure section 2018.030, subdivision (a), we 

nonetheless agree with the courts below that the prosecutor in 

this case impliedly waived any work product protection when he 

justified his peremptory challenges by putting in issue

information the District Attorney now seeks to withhold as 

confidential in postconviction discovery.
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Opinion of the Court by Kruger, J.

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Although the work product statute does not directly 

address the issue of waiver, it is well established that work 

product protection, like other forms of privilege, can be waived 

through conduct. (See Ardon v. City of Los Angeles (2016) 62 

Cal.4th 1176, 1186 (Ardon); Rico v. Mitsubishi Motors Corp. 

(2007) 42 Cal.4th 807; BP Alaska Exploration, Inc. v. Superior

Court (1988) 199 Cal.App.3d 1240, 1254.) Waiver may be found 

where the privilege holder, without coercion, discloses a 

significant part of the communication to another person. (Labor 

& Workforce Development Agency v. Superior Court (2018) 19 

Cal.App.5th 12, 35–36; cf. Evid. Code, § 912, subd. (a) [setting 

out the same waiver standard for enumerated forms of privilege, 

not including work product protection].) An implied waiver may 

also be found when a party “has put the otherwise privileged

communication directly at issue and . . . disclosure is essential

for a fair adjudication of the action.” (Southern Cal. Gas Co. v. 

Public Utilities Com. (1990) 50 Cal.3d 31, 40, citing Mitchell v. 

Superior Court (1984) 37 Cal.3d 591, 609 (Mitchell).) 

Much like the work product doctrine itself, this second 

theory of implied waiver is premised on the need to protect the 

integrity of the judicial proceeding. The cases recognize that 

allowing one party to rely on a document to establish key facts

while simultaneously shielding that same document from the 

other side works an unfair adversarial advantage. 

Considerations of basic fairness accordingly “may require 

disclosure of otherwise privileged information or 

communications where [a party] has placed in issue a 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

18

communication which goes to the heart of the claim in 

controversy.” (Mitchell, supra, 37 Cal.3d at p. 604.)10 

Courts have found implied waiver in a variety of litigation 

contexts. In Nobles, for example, the United States Supreme 

Court rejected an argument that criminal defense counsel could 

simultaneously rely on a testifying defense investigator to 

impeach the credibility of a critical prosecution witness while 

also claiming the investigator’s report was protected by the work 

product doctrine. The court explained: “At its core, the workproduct doctrine shelters the mental processes of the attorney, 

providing a privileged area within which he can analyze and 

prepare his client’s case. But the doctrine is an intensely 

practical one, grounded in the realities of litigation in our 

adversary system. . . . [¶] . . . Respondent, by electing to 

present the investigator as a witness, waived the privilege with 

respect to matters covered in his testimony. Respondent can no 

more advance the work-product doctrine to sustain a unilateral 

testimonial use of work-product materials than he could elect to 

testify in his own behalf and thereafter assert his Fifth 

Amendment privilege to resist cross-examination on matters 

reasonably related to those brought out in direct examination.” 

(Nobles, supra, 422 U.S. at pp. 238–240, fn. omitted.)11 

10 The Legislature has similarly determined that tendering 

a particular issue in a proceeding waives certain privileges. 

(See, e.g., Evid. Code, §§ 958, 996, 1016.) 

11 The Nobles court explained that waiver “normally” does 

not extend to counsel’s use during trial of “notes, documents, 

and other internal materials prepared to present adequately his 

client’s case.” (Nobles, supra, 422 U.S. at p. 239, fn. 14.) We 

likewise affirm that “[w]hat constitutes a waiver with respect to 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

19

Wellpoint Health Networks, Inc. v. Superior Court (1997) 

59 Cal.App.4th 110 is also instructive. The plaintiff in Wellpoint 

brought an employment discrimination action in which the 

employer raised an affirmative defense based on corrective 

action it had taken in response to an internal investigation. The 

plaintiff sought production of the investigative reports. 

Overruling the employer’s claims of privilege, the Court of 

Appeal concluded the plaintiff was entitled to the reports. It 

reasoned that the “adequacy or thoroughness of a defendant’s 

investigation of plaintiff’s claim,” while typically “irrelevant” to 

most civil actions, is highly relevant “if the employer chooses to 

defend by establishing that it took reasonable corrective or 

remedial action.” (Id. at p. 126, italics added.) By raising this 

defense, the employer had “inject[ed] into the lawsuit . . . an 

issue concerning the adequacy of the investigation,” resulting in 

waiver of the work-product doctrine. (Id. at p. 128.) “If a 

defendant employer hopes to prevail by showing that it 

investigated an employee’s complaint and took action 

appropriate to the findings of the investigation, then it will have 

put the adequacy of the investigation directly at issue, and 

cannot stand on the attorney-client privilege or work product 

doctrine to preclude a thorough examination of its adequacy. 

The defendant cannot have it both ways. If it chooses this 

course, it does so with the understanding that the attorneyclient privilege and the work product doctrine are thereby 

waived.” (Ibid.) 

work-product materials depends, of course, upon the 

circumstances” (ibid.) and do not suggest that an attorney’s 

ordinary reliance on notes throughout trial would necessarily 

waive work product protections. 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

20

The Court of Appeal in this case, citing Nobles and 

Wellpoint, adopted similar reasoning to find implied waiver. It 

then went on to liken the prosecutor to a witness who testified 

after refreshing his recollection with his notes, citing Evidence 

Code section 771. (Jones, supra, 34 Cal.App.5th at pp. 83–84.) 

We agree with the District Attorney that section 771 has no 

direct application here, since an attorney in a Batson/Wheeler

hearing does not testify as a sworn witness. But the analogy 

nonetheless serves. The law requires disclosure of notes used to 

refresh a witness’s recollection for much the same reason courts 

imply waiver in other contexts: to ensure the basic fairness of 

the proceedings where a party has put the substance of 

privileged material in issue. (See, e.g., Kerns Constr. Co. v. 

Superior Court (1968) 266 Cal.App.2d 405, 411 [an attorney may 

not provide a witness with protected documents, “allow a 

witness to testify therefrom and then claim work product 

privilege to prevent the opposing party from viewing the 

document from which he testified”].)

Here, the prosecutor invoked an undisclosed juror rating 

system in justifying his use of peremptory challenges at the 

second step of the Batson/Wheeler inquiry. Had the prosecutor 

instead relied solely on a straightforward listing of juror 

characteristics, the prosecutor’s reasons could have been

questioned by the defense and judged against the trial court’s 

own observations. But the defense and trial court had no way 

of confirming or evaluating the prosecutor’s claims that he used 

a race-neutral rating system they had never seen. Unlike an 

attorney who simply glances at her or his notes to recall a 

particular answer provided during voir dire, for example, a 

striking attorney who makes this sort of “testimonial use” of 

undisclosed writings gains an unfair adversarial advantage by 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

21

doing so. (Nobles, supra, 422 U.S. at p. 239, fn. 14.) Effectively

the striking attorney has placed in issue information that goes

to the heart of the question before the court, whether there has 

been discrimination in jury selection. Under our cases, that 

choice is one that constitutes waiver of any claim that the 

information may be withheld as protected work product.

The District Attorney protests that there could have been 

no effective waiver because any disclosure or invocation of 

protected information was coerced. (See Regents of University 

of California v. Superior Court (2008) 165 Cal.App.4th 672, 679.) 

The District Attorney stresses that an attorney provides a 

justification for striking the challenged prospective jurors only 

at the request of the court — a request compelled by Batson, and 

therefore one that the attorney is hardly free to refuse. All of 

this is true, but it hardly follows that a striking attorney must

explain the challenged strikes by invoking an otherwise 

confidential rating system she or he believes to be protected 

work product. 

Here, when the trial court asked the prosecutor to defend 

the challenged strikes, the prosecutor did not simply cite

concerns about the prospective jurors’ occupations, volunteer 

activities, or other characteristics established through voir dire. 

Instead, the prosecutor pointed to the documented results of a 

purportedly color-blind numerical rating system devised by the 

prosecution and offered detailed explanations regarding the low 

scores multiple prosecution team members had given each of the 

struck jurors.12 Considering this record of the Batson/Wheeler

12 The District Attorney suggests in reply that any waiver 

was “inadvertent,” bringing the notes within the exception for 
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

22

hearings at trial and the waiver principles we have discussed, 

we conclude that the District Attorney’s assertion of work 

product protection is not a basis for overturning the 

postconviction trial court’s disclosure order. The point, in the 

end, is simple: A striking attorney cannot both stand on such a 

rating system and assert privilege over it.

13

IV.

For these reasons, we reject the District Attorney’s 

argument that work product protection categorically bars 

disclosure of jury selection notes in postconviction discovery. 

Here there has been an implied waiver of any claim to work 

product protections and so the jury selection notes are subject to 

disclosure. This is true for notes revealing a clear focus on 

impermissible discrimination, such as the notes in Foster, as 

well as those that might not, on their own, reveal a 

discriminatory purpose but that would tend to support the 

Batson/Wheeler challenge when aggregated with other evidence 

or notes. 

We recognize, however, that disclosure of jury notes, like 

disclosure of any other attorney writing, can risk unnecessary 

incursion on the confidentiality of attorney work product beyond 

the scope of the matter now at issue. Though the notes may 

illuminate an attorney’s opinions and impressions of prospective 

inadvertent disclosure recognized by Ardon, supra, 62 Cal.4th 

1176. The analogy is inapt; in that case, as in other inadvertent 

disclosure cases, the disclosures at issue were accidental. That 

is not the case here, where the prosecutor made a calculated 

decision to provide explanations of his rating system.

13 We express no view on whether, under different 

circumstances, there would be a waiver of any work product 

protection attaching to jury selection notes.
PEOPLE v. SUPERIOR COURT (JONES)

Opinion of the Court by Kruger, J.

23

jurors — the matter specifically at issue in a Batson/Wheeler

claim — they may also reveal opinions and impressions of the 

case and legal strategy.

To the extent the District Attorney raises concerns about 

overbroad discovery in this context, the law offers answers. 

Attorneys resisting what they view as overbroad discovery 

efforts may “make a preliminary or foundational showing that 

disclosure would reveal . . . ‘impressions, conclusions, opinions, 

or legal research or theories[]’ (§ 2018.030, subd. (a)[])”

unrelated to jury selection, and “[u]pon an adequate showing, 

the trial court should then determine, by making an in camera 

inspection if necessary, whether absolute work product 

protection applies to some or all of the material.” (Coito, supra, 

54 Cal.4th at pp. 495–496.) In this way, the trial court may

ensure on a “case by case” basis (id. at p. 495) that necessary 

redactions are made to protect core work product that is not 

relevant to the Batson/Wheeler challenge at issue. 

DISPOSITION

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

case remanded for further proceedings not inconsistent with this 

opinion.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

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

argued in Supreme Court.

Name of Opinion People v. Superior Court (Jones)

__________________________________________________________ 

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 34 Cal.App.5th 75

Review Granted (unpublished) 

Rehearing Granted

__________________________________________________________ 

Opinion No. S255826

Date Filed: December 2, 2021

__________________________________________________________ 

Court: Superior

County: San Diego

Judge: Joan P. Weber

__________________________________________________________ 

Counsel:

Summer Stephan, District Attorney, Mark A. Amador, Linh Lam, 

Samantha Begovich and Anne Spitzberg, Deputy District Attorneys, 

for Petitioner.

Jeff Rubin, Deputy District Attorney (Santa Clara), for California 

District Attorneys Association as Amicus Curiae on behalf of 

Petitioner.

No appearance for Respondent.

Shelley J. Sandusky, Cliona Plunkett and Rachel G. Schaefer for Real 

Party in Interest.

Michael C. McMahon for California Public Defenders Association and 

Todd W. Howeth as Amici Curiae on behalf of Real Party in Interest.
Wesley A. Van Winkle for Private Practice Capital Habeas Corpus 

Attorneys as Amici Curiae on behalf of Real Party in Interest.

Kristen A. Johnson, Natasha C. Merle, Liliana Zaragoza and 

Mahogane C. Reed for NAACP Legal Defense & Educational Fund, 

Inc., as Amicus Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for 

publication with opinion):

Anne Spitzberg 

Deputy District Attorney

300 West Broadway, Suite 860

San Diego, CA 92101

(619) 531-3591

Rachel G. Schaefer

Habeas Corpus Resource Center

303 Second Street, Suite 400 South

San Francisco, CA 94107

(415) 348-3800

Natasha Merle

NAACP Legal Defense & Educational Fund, Inc.

40 Rector Street, 5th Floor

New York, NY 10006

(212) 965-2200