In re Jenkins

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.

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.

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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.

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In re JENKINS

Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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,

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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 . . . .’ ”

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Opinion of the Court by Guerrero, C. J.

(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.”

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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?”

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

“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.)

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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.

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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).)

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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”].)

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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.)

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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).)

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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.

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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

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Opinion of the Court by Guerrero, C. J.

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

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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,

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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.”

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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.”

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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,

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Opinion of the Court by Guerrero, C. J.

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.

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Opinion of the Court by Guerrero, C. J.

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].)

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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

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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.

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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).)

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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

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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.)

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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.

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Opinion of the Court by Guerrero, C. J.

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.

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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

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Opinion of the Court by Guerrero, C. J.

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,

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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.

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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.

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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

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“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

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Opinion of the Court by Guerrero, C. J.

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

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Opinion of the Court by Guerrero, C. J.

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.)

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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,

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Opinion of the Court by Guerrero, C. J.

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.

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In re JENKINS

Opinion of the Court by Guerrero, C. J.

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.

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In re JENKINS

Opinion of the Court by Guerrero, C. J.

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.)

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In re JENKINS

Opinion of the Court by Guerrero, C. J.

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.

54

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