Filed 10/2/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

SAMUEL ZAMUDIO JIMENEZ,

Petitioner,

v.

THE SUPERIOR COURT OF 

LOS ANGELES COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

 B297595

 (Los Angeles County

 Super. Ct. No. VA036217)

 

 

ORIGINAL PROCEEDINGS in mandate. Roger Ito, 

Judge. Petition granted with directions.

Susan Garvey, Paula Fog, and Gillian F. Quandt for 

Petitioner.
2

Jackie Lacey, District Attorney, Phyllis C. Asayama 

and Matthew Brown, Deputy District Attorneys for Real 

Party in Interest.

No appearance for Respondent.

__________________________________

INTRODUCTION

Petitioner Samuel Zamudio Jimenez, a death-row 

inmate, seeks a writ of mandate to vacate the superior 

court’s discovery order in this habeas corpus proceeding. In 

his petition for a writ of habeas corpus, petitioner claimed 

the jury at his capital trial impermissibly considered the 

opinion of at least one alternate juror in deciding his guilt. 

The Supreme Court issued an order to show cause on this 

claim in the respondent superior court. On the district 

attorney’s motion on behalf of real party in interest, the 

superior court subsequently ordered petitioner to produce 

the statements of any alternate jurors he had interviewed. 

In his petition for a writ of mandate, petitioner argues 

the court abused its discretion in ordering this discovery. He 

claims the superior court was required to limit discovery to 

the scope of the criminal discovery statutes, which do not 

authorize the discovery sought here. Alternatively, he 

maintains the discovery order violates the qualified attorney 

work-product protection. In response, the district attorney

argues the criminal discovery statutes do not constrain the 

superior court, and extends the qualified work-product 
3

protection is unavailable in habeas proceedings. She also 

asserts that even if generally applicable, the work-product 

protection would not preclude the superior court’s order. 

We agree with the district attorney that discovery in 

habeas proceedings following an order to show cause may 

exceed the scope of the criminal discovery scheme. However, 

we hold that the qualified work-product protection applies to 

discovery beyond that scope and -- at this juncture of the 

proceedings -- precludes the superior court’s discovery order. 

We therefore grant petitioner’s requested relief.

BACKGROUND

In 1997, a jury convicted petitioner of two counts of 

first degree murder, among other offenses, and found true 

multiple special circumstance allegations. The court 

imposed a death sentence. Following trial, the court sealed 

the jurors’ identifying information and prohibited the parties 

from contacting them without authorization. On automatic 

appeal, the California Supreme Court affirmed petitioner’s 

convictions and sentence. (People v. Zamudio (2008) 43 

Cal.4th 327, 333-334.)1

In 2010, petitioner filed an amended petition for a writ 

of habeas corpus, alleging, inter alia, juror misconduct

1 The Supreme Court’s opinion showed petitioner’s name as 

“Samuel Zamudio” based on the information filed in the trial 

court; according to his habeas corpus petition, petitioner’s true 

name is Samuel Zamudio Jimenez. (In re Zamudio Jimenez

(2010) 50 Cal.4th 951, 954, fn. 3.)
4

during the guilt-phase deliberations. He claimed the jurors 

improperly considered the opinion of at least one alternate 

juror during their deliberations. Attached to his petition

was the declaration of E.P., an alternate juror at petitioner’s 

trial, stating that E.P. sat with the jurors during 

deliberations, that the jurors asked for her opinion on

petitioner’s guilt, and that E.P. replied she agreed he was 

guilty. In March 2018, the California Supreme Court 

ordered the People to show cause in the superior court why 

relief should not be granted on petitioner’s claim of juror 

misconduct. 

The district attorney filed a petition in the superior 

court requesting that before real party’s return was due, the 

court contact the 11 surviving seated jurors (one had passed 

away) and the alternates by letter to ask if they were willing 

to speak with the parties’ counsel. At a subsequent hearing, 

the court agreed to this request. During the hearing, the

parties agreed that if any juror consented to speak to one 

party, that party would provide the juror’s statement to the 

other. The district attorney asked that this disclosure 

requirement apply to any statements petitioner might 

previously have obtained from any jurors, seated or 

alternates, though petitioner represented his current counsel 

had interviewed no seated jurors.2 The court indicated it 

2 Petitioner has not indicated, either in the superior court or 

before us, whether his counsel interviewed any alternate jurors 

other than E.P.
5

was inclined to order the discovery the district attorney had 

requested, but allowed petitioner to brief the issue. 

Petitioner filed a brief opposing the requested 

discovery. He noted the criminal discovery statute 

applicable to defendants’ pretrial disclosures, Penal Code 

section 1054.3, requires defendants to disclose the 

statements of only those witnesses they intend to call at 

trial.

3 Petitioner maintained section 1054.3 delineated the 

extent of the court’s authority to order discovery of witness 

statements. He further argued the court’s order was 

unauthorized under the civil discovery scheme, as it would 

require disclosure of his counsel’s qualified work product. 

After considering petitioner’s opposition, the court ordered

petitioner “to provide all statements [his counsel had] 

obtained from the alternate jurors about whether or not they 

participated in jury deliberations . . . .” 

3 Penal Code section 1054.3, subdivision (a) requires a 

criminal defendant to disclose to the prosecuting attorney:

“(1) The names and addresses of persons, other than the 

defendant, he or she intends to call as witnesses at trial, together 

with any relevant written or recorded statements of those 

persons, or reports of the statements of those persons, including 

any reports or statements of experts made in connection with the 

case, and including the results of physical or mental 

examinations, scientific tests, experiments, or comparisons which 

the defendant intends to offer in evidence at the trial.

“(2) Any real evidence which the defendant intends to offer in 

evidence at the trial.” Undesignated statutory references are to 

the Penal Code.
6

Petitioner filed this petition for a writ of mandate 

seeking relief from the superior court’s discovery order. We 

issued an order to show cause why that ruling should not be 

vacated.

DISCUSSION

We review a trial court’s discovery order for abuse of 

discretion. (Union Bank of California v. Superior Court

(2005) 130 Cal.App.4th 378, 388.) “However, when ‘the 

propriety of a discovery order turns on . . . a question of law,’ 

we ‘determine the issue de novo.’” (City of Los Angeles v. 

Superior Court (2017) 9 Cal.App.5th 272, 282, quoting 

Gilbert v. Superior Court (2014) 224 Cal.App.4th 376, 380.) 

Petitioner claims the superior court should have 

limited its discovery order to the scope of the criminal 

discovery scheme. Alternatively, he asserts the court’s 

discovery order violates the qualified attorney work-product 

protection. The district attorney maintains that neither the 

criminal discovery scheme nor the qualified work-product 

protection constrains discovery in habeas proceedings. She 

also argues that even if generally applicable, the workproduct protection would not preclude the superior court’s 

order. We discuss the parties’ contentions in turn, beginning

with the general scope of discovery in habeas corpus 

proceedings following an order to show cause.
7

A. The Scope of Discovery Following an Order to Show 

Cause in Habeas Corpus Proceedings

Generally, court-ordered discovery is unavailable in 

habeas corpus proceedings “unless and until a court issues 

an order to show cause.” (People v. Superior Court (Morales) 

(2017) 2 Cal.5th 523, 528.) But once an order to show cause 

has issued, courts have discretion to order discovery as to 

issues on which the petition has stated a prima facie case. 

(See In re Scott (2003) 29 Cal.4th 783, 815 (Scott) [discovery 

order following order to show cause was not abuse of 

discretion]; Board of Prison Terms v. Superior Court (2005) 

130 Cal.App.4th 1212, 1243 [discovery following order to 

show cause “must be relevant to the issues upon which the 

petition states a prima facie case for relief”].) Such discovery 

may include disclosures by the People and the petitioner.

4 

(Scott, at p. 814.)

4 Section 1054.9, added to the Penal Code in 2003, affords 

convicted defendants in certain categories of cases, and under 

certain conditions, a right to limited discovery “upon the 

prosecution of a postconviction writ of habeas corpus . . . or in 

preparation to file that writ . . . .” (§ 1054.9, subd. (a).) Discovery 

under this provision includes only “materials to which the 

defendant would have been entitled at the time of trial . . . .” (In 

re Steele (2004) 32 Cal.4th 682, 695.) Section 1054.9 thus does 

not authorize discovery of evidence generated or uncovered after 

trial, such as new expert reports and new witness statements, 

which may be most relevant to the habeas proceeding. Indeed, 

our Supreme Court has stated the criminal discovery provisions, 

which are similar in scope to section 1054.9, “are a bad fit for 

(Fn. is continued on the next page.)
8

The precise nature and scope of discovery following an 

order to show cause “has generally been resolved on a caseby-case basis.” (Scott, supra, 29 Cal.4th at p. 813.) Habeas 

corpus “is a special proceeding and not entirely analogous to 

either [civil or criminal proceedings].” (Id. at p. 815, fn. 7.) 

Thus, the statutory provisions governing discovery in 

criminal trials do not apply to habeas corpus matters (id. at 

p. 813), “although they may provide guidance in crafting 

discovery orders on habeas corpus” (Pearson, supra, 48 

Cal.4th at p. 572). Nor has our Supreme Court indicated 

that the civil discovery scheme governs discovery in habeas 

proceedings. Instead, the Court has tasked trial courts with 

“fashion[ing] a fair discovery rule.” (Scott, at p. 814.) 

habeas corpus” because the issues raised on habeas “may or may 

not relate to any of the evidence presented or not presented in the 

underlying criminal trial.” (People v. Superior Court (Pearson)

(2010) 48 Cal.4th 564, 572 (Pearson).) Nor does section 1054.9 

authorize reciprocal discovery by the People.

Neither party argues section 1054.9 limits courts’ power to 

order discovery following an order to show cause, and we 

conclude it does not. Affording defendants limited discovery as of 

right does not imply a rejection of the courts’ discretion to order 

more extensive discovery following an order to show cause. (Cf. 

In re Bryce C. (1995) 12 Cal.4th 226, 233 [statute affording 

indigent appellants right to appointed counsel in certain appeals 

did not negate courts’ discretion to appoint counsel for indigent 

respondents in similar appeals].) And we do not believe the 

Legislature intended to deny parties access to information that 

may be most relevant to the proceeding.
9

In Scott, the California Supreme Court appointed a 

referee to take evidence and decide factual questions in a 

capital habeas corpus proceeding. (Scott, supra, 29 Cal.4th 

at p. 792.) On the Attorney General’s motion, the referee 

ordered the petitioner to provide certain discovery, including 

“[a]ll discovery allowed under Penal Code section 1054.3,” 

which governs criminal defendants’ pretrial disclosure 

obligations. (Scott, supra, at p. 812.) Challenging this ruling 

in the Supreme Court, the petitioner argued that section 

1054.3, enacted in 1990 as part of the reciprocal discovery 

provisions of Proposition 115 (the Crime Victims Justice 

Reform Act), did not apply to habeas proceedings. (Scott, at 

p. 813.) The Supreme Court agreed that section 1054.3 

applied only to the underlying criminal proceeding, but 

concluded that the “referee merely cited that section as a 

shorthand way to describe and limit the discovery he was 

ordering.” (Scott, at p. 813.) Finding the referee acted 

within his discretion in ordering this discovery, the Court 

explained: “Penal Code section 1054.3 was a logical place for 

the referee to look to fashion a fair discovery rule. It 

requires the defendant to provide the names, addresses, and 

statements of witnesses, expert reports, and real evidence 

the defendant intends to offer. This requirement is not 

onerous and could greatly facilitate the reference hearing.” 

(Id. at p. 814.)

The parties here agree the criminal discovery scheme 

would not authorize the superior court’s discovery order. 

Section 1054.3 requires a criminal defendant to provide the 
10

prosecution with relevant written or recorded statements

only of those persons “he or she intends to call as witnesses 

at trial . . . .” (§ 1054.3, subd. (a)(1).) Our Supreme Court 

has interpreted this requirement to apply to any witness the 

defense “‘reasonably anticipates it is likely to call.’” (Izazaga 

v. Superior Court (1991) 54 Cal.3d 356, 375-376 & fn. 11, 

(Izazaga).) Absent an indication the defense reasonably 

foresees calling the witness, section 1054.3 imposes no 

disclosure obligation.5 (See ibid.; Sandeffer v. Superior 

Court (1993) 18 Cal.App.4th 672, 678 [where counsel 

represented he had not yet decided whether to call witness, 

trial court exceeded its authority in ordering disclosures 

about that witness].) As petitioner notes, the district 

attorney has not yet filed a return, and the superior court 

has not yet determined whether an evidentiary hearing is 

warranted. Petitioner asserts he has therefore not 

determined the witnesses he would call at any potential 

future hearing.

Petitioner contends the superior court should have 

limited its discovery order to the allowance of section 1054.3. 

5 The Civil Discovery Act is broader in scope and does not 

condition the disclosure of witness statements on the party’s 

intent to call the witness at trial. (See Code Civ. Proc., 

§§ 2017.010 [generally, “any party may obtain discovery 

regarding any matter, not privileged, that is relevant to the 

subject matter involved in the pending action . . . if the matter 

either is itself admissible in evidence or appears reasonably 

calculated to lead to the discovery of admissible evidence”], 

2031.010 [providing for document production].)
11

He acknowledges the criminal discovery statutes do not 

govern discovery in habeas proceedings but maintains that if 

a statute addresses the relevant material -- here, witness 

statements -- the court must “look[] no further.” In support, 

petitioner notes Scott’s observation that section 1054.3 was a 

“logical place . . . to look to fashion a fair discovery rule” 

(Scott, supra, 29 Cal.4th at p. 814), and argues his approach 

accords with the rule that a specific statutory provision 

controls over a general one. 

We disagree that the superior court was bound to 

adhere to the scope of discovery under section 1054.3. The 

California Supreme Court in Scott identified this provision 

as “a logical place for the referee to look,” and found the 

referee acted within his discretion. (Scott, supra, 29 Cal.4th 

at p. 814.) The Court did not say section 1054.3 was the only

logical source to consider in crafting a fair discovery rule or 

that the referee’s discretion to order discovery was limited by 

it. Scott stands for the simple proposition that the criminal 

discovery statutes “may provide guidance in crafting 

discovery orders on habeas corpus.” (Pearson, supra, 48 

Cal.4th at p. 572, citing Scott, supra, at pp. 813-814.) 

Following Scott, the Court has recognized that the criminal 

discovery provisions “are a bad fit for habeas corpus” because 

they are geared toward the underlying trial, rather than the 

issues raised on habeas. (Pearson, supra, at p. 572.) 

As for the rule that a specific statute prevails over a 

general one, it applies only when the two deal with the same 

subject and are inconsistent. (See Code Civ. Proc., § 1859 
12

[“when a general and [a] particular provision are 

inconsistent, the latter is paramount to the former”]; San 

Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 

Cal.4th 571, 577 [“‘A specific provision relating to a 

particular subject will govern in respect to that subject, as 

against a general provision, although the latter, standing 

alone, would be broad enough to include the subject to which 

the more particular provision relates’”].) The rule has no 

application here, where the relevant statutes -- section 

1054.3 and the Civil Discovery Act -- govern different 

discovery schemes, and neither controls the dispute at issue. 

In short, we conclude that under Scott, a trial court has

discretion to exceed the bounds of the criminal discovery 

scheme in fashioning a “fair” discovery rule. We therefore 

turn to consider the petitioner’s invocation of the qualified 

attorney work-product protection. 

B. The Qualified Attorney Work-Product Protection

Petitioner contends that when requested discovery 

reaches beyond the scope of the criminal discovery scheme, 

the qualified attorney work-product protection, codified in 

Code of Civil Procedure section 2018.030, subdivision (b), 

applies to shield relevant materials from discovery. He 

argues the qualified work-product protection precludes the 

superior court’s discovery order. The district attorney

counters that this protection has no application in habeas 

proceedings and that in any case, it would not bar the court’s 

discovery order. As explained below, we conclude the 
13

qualified work-product protection is available in habeas 

proceedings following an order to show cause, and that in the 

instant case, the rule operates to shield the relevant 

information from discovery at this stage of the proceedings. 

1. Availability of Qualified Attorney WorkProduct Protection in Habeas Proceedings

The work-product doctrine originated in common law 

and is now codified in Code of Civil Procedure section 

2018.030. (See People v. Superior Court (Laff) (2001) 25 

Cal.4th 703, 718 (Laff) [Code of Civil Procedure 

section 2018.030’s predecessor was “intended to restate the 

common law regarding attorney work product”].) It provides 

absolute protection to any “writing that reflects an attorney’s 

impressions, conclusions, opinions, or legal research or 

theories . . . .” (Code Civ. Proc., § 2018.030, subd. (a).) To all 

other attorney work product, this doctrine provides only 

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.” 

(Id., subd. (b).) The work-product doctrine reflects “the 

policy of the state to . . . [¶] (a) [p]reserve the rights of 

attorneys to prepare cases for trial with that degree of 

privacy necessary to encourage them to prepare their cases 

thoroughly and to investigate not only the favorable but the 

unfavorable aspects of those cases[; and] [¶] (b) [p]revent 
14

attorneys from taking undue advantage of their adversary’s 

industry and efforts.” (Code Civ. Proc., § 2018.020.) 

In Coito v. Superior Court (2012) 54 Cal.4th 480

(Coito), our Supreme Court held that “a witness statement 

obtained through an attorney-directed interview is, as a 

matter of law, entitled to at least qualified work product 

protection.” (Id. at p. 497.) The Court based this holding on 

the “interests that the Legislature sought to protect in 

enacting the work product privilege.” (Id. at p. 496.) The 

Coito court explained that when an attorney interviews 

witnesses and records their statements, “the attorney has 

expended time and effort in identifying and locating each 

witness, securing the witness’s willingness to talk, listening 

to what the witness said, and preserving the witness’s 

statement for possible future use.” (Coito, supra, 54 Cal.4th 

at p. 496.) Allowing opposing counsel to obtain these 

recorded statements would conflict with the Legislature’s 

policy to prevent “free riding” on the adversary’s industry 

and efforts. (Ibid., citing Code Civ. Proc., § 2018.020, subd. 

(b).) 

Additionally, the Court stated that “a default rule 

authorizing discovery of witness statements procured by an 

attorney would impede the Legislature’s intent ‘to encourage 

[attorneys] to prepare their cases thoroughly and to 

investigate not only the favorable but the unfavorable 

aspects of those cases.’” (Coito, supra, 54 Cal.4th at p. 496, 

quoting Code Civ. Proc., § 2018.020, subd. (a).) It explained:

“If attorneys must worry about discovery whenever they take 
15

a statement from a witness, it is reasonably foreseeable that 

fewer witness statements will be recorded and that adverse 

information will not be memorialized. . . . [W]ithout work 

product protection, ‘no meaningful privacy exists within 

which an attorney may have sufficient confidence to 

thoroughly investigate and record potentially unfavorable

matters.’ This result would derogate not only from an 

attorney’s duty and prerogative to investigate matters 

thoroughly, but also from the truth-seeking values that the 

rules of discovery are intended to promote.” (Coito, supra, at 

pp. 496-497.)

Although the work-product doctrine is codified in the 

discovery provisions of the Code of Civil Procedure, several 

decisions have applied it in various additional contexts “[i]n 

order to further the policies underlying [it] . . . .” (Laff, 

supra, 25 Cal.4th at p. 718, citing People v. Coddington

(2000) 23 Cal.4th 529, 606 [doctrine precluded trial use of 

work product even though it was not obtained through 

discovery]; County of Los Angeles v. Superior Court (1990) 

222 Cal.App.3d 647, 654-658 (County of Los Angeles) 

[opposing party cannot retain adversary’s former expert 

witness without violating doctrine]; Rodriguez v. McDonnell 

Douglas Corp. (1978) 87 Cal.App.3d 626, 648-649 [doctrine 

applies at trial as well as in pretrial discovery proceedings]; 

70 Ops.Cal.Atty.Gen. 28, 33-35 (1987) [doctrine applies in 

grand jury proceedings].) 

Before the enactment of Proposition 115, our Supreme 

Court had held that the work-product doctrine also applied 
16

in criminal cases, citing its purpose in assuring “‘the 

thorough preparation and presentation of each side of the 

case.’” (People v. Collie (1981) 30 Cal.3d 43, 59 (Collie), 

quoting United States v. Nobles (1975) 422 U.S. 225, 238.) 

Proposition 115, however, “expressly limit[ed] the definition 

of ‘work product’ in criminal cases to ‘core’ work product,

that is, any writing reflecting ‘an attorney’s impressions, 

conclusions, opinions, or legal research or theories.’” 

(Izazaga v. Superior Court, supra, 54 Cal.3d at p. 382, fn. 19, 

italics omitted.) “Thus, the qualified protection of certain 

materials . . . applicable in civil cases, is no longer available 

in criminal cases.” (Ibid.) 

Petitioner argues the qualified privilege applies in 

habeas proceedings following an order to show cause if the 

discovery sought exceeds the scope of the criminal discovery 

scheme. We agree. Any discovery rule fashioned by the trial 

court in a habeas proceeding must be a “fair” one. (Scott, 

supra, 29 Cal.4th at p. 814.) In our view, while the court 

may go beyond the limits of the criminal discovery statutes, 

fairness demands the availability of the qualified workproduct protection under those circumstances. 

Though codified in the discovery provisions of the Code 

of Civil Procedure, the work-product doctrine originated in 

common law, and courts have applied it in a variety of 

contexts in both civil and criminal cases based on the 

doctrine’s purposes. (See Laff, supra, 25 Cal.4th at p. 718

[collecting cases]; People v. Collie, supra, 30 Cal.3d at p. 59.) 

The purposes of the qualified work-product protection apply
17

equally in habeas proceedings. No less than counsel in 

ordinary civil cases, counsel investigating a habeas case 

expends time and effort worthy of protection from opposing 

counsel’s appropriation. (Cf. Code Civ. Proc., § 2018.020, 

subd. (b); Coito, supra, 54 Cal.4th at p. 496.) And no less 

than in ordinary civil cases, a default rule authorizing 

discovery of the fruits of habeas counsel’s investigation 

would discourage counsel from investigating unfavorable 

aspects of the case and from memorializing adverse 

information, thereby derogating from counsel’s duty to 

investigate matters thoroughly as well as from the truthseeking function of discovery. (Cf. Code Civ. Proc., 

§ 2018.020, subd. (a); Coito, supra, at pp. 496-497.) Unlike 

the discovery order in Scott, a discovery rule permitting 

unfettered access to qualified attorney work product in all 

habeas cases would be onerous and would potentially hinder, 

rather than facilitate, a subsequent hearing. (Cf. Scott, 

supra, 29 Cal.4th at p. 814 [requirement that petitioner 

provide only the witness statements, expert reports, and real 

evidence that he “intend[ed] to offer” was not onerous and 

“could greatly facilitate the reference hearing”]; Coito, at 

pp. 496-497.) 

In arguing the qualified protection should not be 

available, the district attorney emphasizes it is no longer 

available in criminal cases under Proposition 115. While 

recognizing proposition 115 does not apply to habeas 

proceedings, the district attorney contends those proceedings

are “more criminal than civil” for purposes of the work-
18

product doctrine. She asserts that under Scott, a trial court 

may “fashion reciprocal discovery orders for materials that 

would have been discoverable under section 1054.3,” and 

argues “[i]t makes little sense to give materials more 

protection on habeas corpus than they would have enjoyed in 

the underlying criminal case.” 

What these contentions ignore, however, is that section 

1054.3 would not authorize discovery of the relevant 

materials here. As discussed, the scope of discovery under 

section 1054.3 is narrower than the scope allowed under the 

Civil Discovery Act, and it does not include statements of 

witnesses the defendant does not intend to call at trial. A 

criminal defense counsel thus need not worry that 

interviewing an unfavorable witness would compel 

disclosure of that witness’s statements to the prosecution. 

Proposition 115’s rejection of the qualified work-product

protection is therefore tempered by the more limited scope of 

discovery it authorizes. But the discovery rule the district 

attorney offers would reach beyond the scope of both the 

criminal and civil discovery schemes, and would disregard 

the important interests protected by the qualified workproduct protection without requiring any justification. This 

rule would lead to unduly burdensome discovery, chill 

habeas counsel’s investigations of unfavorable aspects of 

their clients’ cases, and impede the truth-seeking function of 

the discovery procedures. Such a discovery rule could hardly 

be described as “fair.” (See Scott, supra, 29 Cal.4th at 

p. 814.) 
19

We therefore hold that where, as here, the discovery 

sought exceeds the scope of the criminal discovery scheme, 

the qualified work-product protection is available in habeas 

corpus proceedings following an order to show cause.

Accordingly, we turn to consider the application of that 

protection here. 

2. Application of the Qualified Attorney WorkProduct Protection

Work product subject to qualified protection “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.” (Code Civ. Proc., § 2018.030, subd. (b).) The 

party seeking disclosure of qualified work product has the 

burden of establishing unfair prejudice or injustice justifying 

the disclosure. (Coito, supra, 54 Cal.4th at p. 499.) We 

review a trial court’s application of the qualified workproduct protection for abuse of discretion, and its 

determination that denial of disclosure would unfairly 

prejudice the party seeking it for substantial evidence. 

(Armenta v. Superior Court (2002) 101 Cal.App.4th 525, 536

(Armenta).)

“Unfair prejudice results where the party seeking 

discovery establishes that there exists ‘“no adequate 

substitute”’ for the material [sought]. [Citation.] 

Conversely, when the party has equivalent opportunity to 

generate comparable evidence in its own case presentation, 
20

there is no unfair prejudice.” (Armenta, supra, 101 

Cal.App.4th at p. 535.) A showing that no adequate 

substitute exists must be supported by competent evidence. 

(See County of Los Angeles, supra, 222 Cal.App.3d at p. 654, 

fn. 4 [hearsay evidence insufficient to defeat qualified workproduct protection].)

As our Supreme Court has recognized, when an 

attorney interviews a witness and records his or her 

statement, opposing counsel is generally “free to interview 

the witness for himself or herself to find out what 

information the witness has that is relevant to the 

litigation.” (Coito, supra, 54 Cal.4th at p. 496.) “Absent a 

showing that a witness is no longer available or accessible, 

or some other showing of unfair prejudice or injustice 

[citation], the Legislature’s declared policy is to prevent an 

attorney from free riding on the industry and efforts of 

opposing counsel [citation].” (Ibid.)

The district attorney argues denial of the disclosure 

here would nevertheless unfairly prejudice the People in 

preparing a defense to petitioner’s habeas claim. She 

asserts: “This case is already 20 years old. At least one of 

the sitting jurors has already passed away. Fading 

memories will make it difficult to get the same information 

today. There is no guarantee that any jurors will consent to 

further interviews.” 

The district attorney’s concerns, while legitimate, are 

too speculative to override the qualified work-product 

protection. The superior court agreed to send a letter to all 
21

jurors, asking if they would be willing to speak with counsel 

for the parties. The record does not reflect whether this 

letter was sent before the court issued its discovery order, or 

if so, whether any responses had been received. While it is 

possible the jurors and alternates will refuse to speak with 

counsel, it is also possible they will agree to do so. And while 

any responding alternates may not remember what they 

might have recalled at any previous interview with

petitioner’s counsel, they may also relay the same 

recollection of events or clarify that they never spoke with 

petitioner’s counsel. Hypothetical difficulties are insufficient 

to show a witness is unavailable or to otherwise defeat the 

qualified work-product protection. (See Coito, supra, 54 

Cal.4th at pp. 496, 499; Armenta, supra, 101 Cal.App.4th at 

p. 535; County of Los Angeles, supra, 222 Cal.App.3d at 

p. 654, fn. 4.) As petitioner notes, the district attorney may 

file a return disputing his allegations even without the 

requested information. (See People v. Duvall (1995) 9 

Cal.4th 464, 485-486 [respondent filing return in habeas 

proceedings may satisfy pleading burden by alleging with 

specificity that despite acting with due diligence, crucial 

information is not readily available, and that there is good 

reason to dispute certain allegations or question the 

credibility of certain declarants].)

Nothing prevents the district attorney from again 

seeking this information if her attempts to obtain it

independently prove unsuccessful. However, her current 

attempt to compel the disclosure is premature. Accordingly, 
22

we conclude the superior court abused its discretion in 

ordering the discovery at this stage of the proceedings. (See 

Armenta, supra, 101 Cal.App.4th at p. 536.)
23

DISPOSITION

Let a peremptory writ of mandate issue directing 

respondent superior court to vacate its order granting in 

part the district attorney’s motion for discovery, and to issue 

a new order denying that motion without prejudice to its 

renewal. 

CERTIFIED FOR PUBLICATION

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.