Full Opinion

Filed 9/21/26 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO JOSEPH MANUEL MONTES, Petitioner, E087426 v. (Super.Ct.No. CVRI2204950) SUPERIOR COURT FOR THE OPINION COUNTY OF RIVERSIDE, Respondent; THE PEOPLE, Real Party in Interest. ORIGINAL PROCEEDINGS; petition for extraordinary writ. F. Paul Dickerson, Judge. Granted. Habeas Corpus Resource Center, Christina Sandidge, Andrea Farkas, and Brooke Acevedo for Petitioner. No appearance for Respondent. Michael A. Hestrin, District Attorney, and W. Matthew Murray, Deputy District Attorney for Real Party in Interest. 1 Box v. Superior Court (2022) 87 Cal.App.5th 60, 67 (Box) stated that a defendant may obtain postconviction discovery of the prosecution’s jury selection notes only upon making a “prima facie case of racial bias.” Legislation effective at the beginning of this year, however, added “the prosecution’s jury selection notes” to the materials available in postconviction discovery and allowed the prosecution to assert good cause for redacting them. (Pen. Code, § 1054.9, subds. (a), (c)(1), (c)(4); undesignated statutory citations are to the Penal Code.) We hold that a defendant no longer must establish a prima facie case of racial bias to obtain the prosecution’s jury selection notes postconviction. Rather, a request for the notes shifts to the prosecution the burden of showing “good cause to shield jury selection notes from disclosure.” (§ 1054.9, subd. (c)(4)(A).) That burden is readily satisfied where (unlike here) the prosecution did not exercise peremptory challenges at trial. (§ 1054.9, subd. (c)(4)(C).) Here, though, the prosecution made peremptory challenges, and it has not yet asserted or established good cause to shield the notes. We issue a writ of mandate directing the trial court to adjudicate any assertion of good cause the People wish to raise below. I. BACKGROUND In 1996, a jury found defendant Joseph Montes guilty of first degree murder and other crimes, found three special circumstances true, and sentenced him to death. (People v. Montes (2014) 58 Cal.4th 809, 819 (Montes).) 2 At Montes’s trial, the prosecutor used peremptory challenges to strike six Black jurors and five Latino jurors. (Montes, supra, 58 Cal.4th at p. 847.) Montes’s counsel brought three motions challenging the prosecution’s use of these challenges under Batson v. Kentucky (1986) 476 U.S. 79, 84–89 and People v. Wheeler (1978) 22 Cal.3d 258, 276–277 (Wheeler). (Montes, at p. 847.) These canonical cases allow a defendant to attempt to establish purposeful racial discrimination in the use of the challenges, which normally require no explanation. Under the traditional Batson/Wheeler inquiry, if the defendant establishes a prima facie case of discrimination during jury selection, the prosecution must offer a race-neutral justification for the strikes, and the court decides whether the defendant has proved racial discrimination. (Montes, at p. 847.) That test has changed for California trials. In 2022, our Legislature enacted Code of Civil Procedure section 231.7, under which “[w]hen a defendant objects . . . to the prosecutor’s use of a peremptory challenge, the defendant is no longer required to make a prima facie showing of racial discrimination. Instead, the prosecutor must state reasons for exercising the challenge.” (People v. Alston (2026) 118 Cal.App.5th 575, 580.) At the time of his trial, Montes had to establish a prima facie case to support his Batson/Wheeler challenges. Such a showing is made when “the totality of the relevant facts gives rise to an inference of discriminatory purpose.” (People v. Zaragoza (2016) 1 Cal.5th 21, 43.) The trial court found that Montes had stated a prima facie case as to most of the peremptory challenges, required explanations from the prosecution, and then denied the Batson/Wheeler motions. (Montes, supra, 58 Cal.4th at p. 847.) On direct 3 appeal, our Supreme Court upheld these denials, concluding that all were supported by substantial evidence after a detailed examination of the explanations for striking each of the Black or Latino jurors. (Id. at pp. 848-857.) In 2025, defendant moved for postconviction discovery under section 1054.9, seeking several categories of material but not directly requesting the prosecution’s jury selection notes. During the argument on the motion, the prosecutor explained that the case records contained “some jury selection notes.” He mentioned a “new bill” under which “a prosecutor’s jury selection notes can become discoverable.” The prosecutor stated, “I could be wrong, but I believe that in order to do that, the defense essentially has to make a prima facie showing. . . .” The prosecutor suggested the parties “litigate that in a separate motion” and offered the notes for in camera review. The parties did not litigate such a motion, but each took positions on the matter. Montes filed a motion for production of a privilege log, and the People filed a bench brief opposing one. The bench brief contained a section arguing that the defendant needs a “prima facie case of a Batson/Wheeler violation” to be entitled to jury selection notes, citing Box, supra, 87 Cal.App.5th 60. On October 3, 2025, the court issued a detailed order addressing the various categories of documents that Montes sought in discovery. The court denied production of any jury selection notes, stating that they “would have been potentially discoverable if requested at trial” along with the Batson/Wheeler motion, but they are not discoverable postconviction. In a hearing that day, Montes’s counsel said she had not yet responded to 4 the prosecution’s briefing on jury selection notes and planned to formally request the notes and fully brief the issue. Four days after the ruling, the Governor signed into law Assembly Bill No. 1036 (2025-2026 Reg. Sess.), which amended section 1054.9 to expressly cover the prosecution’s jury selection notes and provide provisions related to their discovery. On October 13, 2025, Montes filed a motion for reconsideration in which he formally requested the prosecution’s jury selection notes and argued for their production. The court denied the request without providing reasoning. II. ANALYSIS Section 1054.9 governs a defendant’s request for postconviction discovery before a court has issued an order to show cause on a habeas petition. (People v. Superior Court (2021) 12 Cal.5th 348, 361 (Jones).) The statute provides that upon a showing that good faith efforts to obtain discovery materials from trial counsel were unsuccessful, a court shall order that a defendant be provided “reasonable access” to defined “discovery materials” in the prosecution’s possession. (§ 1054.9, subds. (a), (c).) After an order to show cause issues, the scope of discovery generally is not resolved by section 1054.9 but by the necessities of a case. (Jones, supra, 12 Cal.5th at p. 361, fn. 8.) Effective January 1, 2026, Assembly Bill No. 1036 amended section 1054.9 to expand postconviction discovery. (Legis. Counsel’s Dig., Assem. Bill No. 1036 (2025- 2026 Reg. Sess.).) The law now applies to all incarcerated felons rather than only those serving sentences of at least 15 years for serious or violent crimes. (§ 1054.9, subd. (a).) 5 The discovery materials are no longer limited to those the defendant would have been entitled to at trial; they instead include those “that tend to negate guilt, mitigate the offense, mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.” (§ 1054.9, subd. (c)(1).) The defendant is entitled to material as if he were “tried today” rather than limited to what was discoverable at the “original trial.” (§ 1054.9, subd. (c)(1).) The amended law expands the “prosecution” that may possess the materials to include not only “the prosecuting agency,” but also “counsel for the respondent to a habeas corpus petition.” (§ 1054.9, subd. (c)(2).) And the statute now imposes new requirements on defendants’ trial counsel to preserve their client’s files. (§ 1054.9, subd. (g).) We address only one change here: the amended law’s treatment of jury selection notes. Now, under the statute, “ ‘[d]iscovery materials’ includes the prosecution’s jury selection notes.” (§ 1054.9, subd. (c)(1).) New provisions in section 1054.9, subdivision (c)(4) place the burden on the prosecution to show good cause for shielding or redacting those notes: “(A) If the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would bear on their case strategy. “(B) If the court finds good cause, the court shall conduct an in camera review and order necessary redactions. 6 “(C) The prosecution’s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes pursuant to this section.” These provisions codified Jones’ primary holding that jury selection notes may be ordered in postconviction discovery under the then-existing language of section 1054.9. (Jones, supra, 12 Cal.5th at p. 361, fn. 9.) The Supreme Court rejected the argument that “work product protection categorically bars disclosure of jury selection notes in postconviction discovery.” (Id. at p. 366.) Jones, though, found an implied waiver of work product protection under the facts of that case but did not otherwise define the protection’s contours. (Id. at p. 362.) After Jones, the Court of Appeal accordingly held in Box, supra, 87 Cal.App.5th at p. 67, that jury selection notes could be produced in response to a section 1054.9 motion. Beyond Jones, Box placed the burden on the People to demonstrate work product protection applied in the case. To this extent, Box, like Jones, remains good law after Assembly Bill No. 1036, which reinforces their holdings. But Box also applied a proposition of law that has now been abrogated. Box stated that the prosecution’s jury selection notes are discoverable under section 1054.9 only “[w]here a defendant makes a prima facie case under Batson/Wheeler.” (Box, supra, 87 Cal.App.5th at p. 82.) Box’s assumption reflected People v. Superior Court (Jones) (2019) 34 Cal.App.5th 75, 79-80, which, in determining whether to grant a section 1054.9 request for jury selection notes, analyzed whether the defendant had made a prima facie showing under Batson/Wheeler at the time of trial. 7 After Assembly Bill No. 1036, section 1054.9 no longer requires a defendant to make a prima facie Batson/Wheeler showing to obtain the prosecution’s jury selection notes postconviction. This is apparent from section 1054.9, subd. (c)(4). If the defendant’s trial involved no peremptory challenges, the statute still shifts the burden to the prosecution to show good cause. To be sure, the prosecution can readily discharge that burden: “The prosecution’s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes pursuant to this section.” (§ 1054.9, subd. (c)(4)(C).) But the statute imposes no prima facie case requirement before shifting the burden to the prosecution to show good cause for withholding jury selection notes. The requirement of a prima facie case articulated in Box, supra, 87 Cal.App.5th at p. 82 and People v. Superior Court (Jones), supra, 34 Cal.App.5th 75, 79-80, no longer applies. Under section 1054.9 as it now applies, Montes’s request for the prosecution’s jury selection notes shifted the burden to the People to show “good cause to shield jury selection notes from disclosure.” (§ 1054.9, subd. (c)(4)(A).) Assembly Bill No. 1036 was signed by the Governor during the pendency of Montes’s motion, though it was not yet effective. We commend the prosecutor for nevertheless informing the trial court of the new legislation and offering to brief the matter and provide the jury selection notes for in camera review. Nevertheless, the prosecutor tentatively suggested to the trial court that to obtain the notes “the defense essentially has to make a prima facie showing. . . .” The People then submitted a bench brief on the matter arguing that Montes needs a 8 “prima facie case of a Batson/Wheeler violation” to be entitled to jury selection notes, citing Box, supra, 87 Cal.App.5th 60. These assertions were correct when the trial court decided Montes’s motion. But the prosecution implicitly agreed that the court could decide the matter under the then-imminent Assembly Bill No. 1036 amendments, which became effective during this writ proceeding. We therefore grant the petition and issue this opinion clarifying current law. Again to their credit, the People do not strongly oppose applying Assembly Bill No. 1036 here. In the Return, they assert in a single sentence that we “need not reach that issue” because Montes might obtain the notes through a Racial Justice Act motion. But then they state that if we are “inclined to reach the issue of AB 1036” we should remand the case “to litigate issues under Penal Code section 1054.9, subdivision (c)(4).” That is the subdivision that allows the prosecution to show good cause for redacting the notes. Under that provision, the burden has shifted to the prosecution. The People acknowledge the “significant changes” enacted by Assembly Bill No. 1036, including the designation of jury selection notes as discovery materials and the “new procedure” for the prosecution to assert good cause to redact the notes. The People describe this as a “new rebuttable presumption of entitlement by convicted defendants to their prosecutor’s jury selection notes.” We address Assembly Bill No. 1036 now, both because we do not know how the Racial Justice Act motion will be resolved and because doing so will clarify this new procedure. Denying the petition could leave unclear whether the trial court’s ruling as to 9 the notes, which was arguably correct when made but does not comport with current law, precludes Montes from renewing his section 1054.9 request for the jury selection notes. On the other hand, Montes argues that we should not only address section 1054.9 now, but also “direct” the trial court to “order the jury selection notes disclosed.” Instead, we are directing only that trial court to follow the procedures in section 1054.9 now that it is in effect and the matter is cleanly presented. When this case returns to the trial court, the People must either produce the jury selection notes or “make a foundational proffer describing how information in their file would bear on their case strategy.” (§ 1054.9, subd. (c)(4)(A).) The court must consider that proffer and “[i]f the court finds good cause, the court shall conduct an in camera review and order necessary redactions” to the jury selection notes. (§ 1054.9, subd. (c)(4)(B).) This is the process for any case with a postconviction request for jury selection notes in which the prosecution exercised peremptory challenges at trial. Section 1054.9, subdivision (c) defines good cause in terms of the prosecution’s “case strategy.” This permits redactions of portions of jury selection notes about the prosecution’s views of the case that are unrelated to any impermissible motivation for striking a juror. (See Sen. Com. on Pub. Safety, on Assem. Bill No. 1036 (2025 -2026 Reg. Sess.) July 1, 2025, p. 7 [referring to “impressions, conclusions, opinions, or legal research and theories about case strategy independent of conclusions or impressions about prospective jurors”].) Of course, the prosecution may prefer to leave unredacted information indicating a legitimate strategic reason for striking a juror, rather than an 10 impermissible one. Any evidence that might show a discriminatory purpose should not be redacted. The prosecution and court should use the Legislature’s articulation of the considerations that may apply in evaluating a Batson/Wheeler challenge as guidance in determining redactions. (See Code Civ. Proc. § 231.7, subds. (d), (e).) We reiterate that section 1054.9 identifies a situation where the prosecution can readily show good cause to withhold jury selection notes. The prosecution can do so by showing a “lack of exercised peremptory challenges during jury selection.” (§ 1054.9, subd. (c)(4)(C).) This is based on the obvious principle that without peremptory challenges, no Batson/Wheeler violation could have occurred, so there is no cause to produce the notes. Beyond that single situation, though, the statute does not require a showing that relates to the likelihood of a successful Batson/Wheeler claim in the case. Rather, it simply requires the existence of prosecutorial peremptory challenges to shift the burden to the prosecution. This legislative choice, while favoring broad discovery, is consistent with interests that Batson/Wheeler protects: the equal protection right under the Fourteenth Amendment to the U.S. Constitution and the right to a jury drawn from a representative cross-section of the community under article I, section 16 of the state constitution. (People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.) These rights can be violated if “any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (Id. at p. 1158.) “Exclusion of even one prospective juror for reasons impermissible under Batson 11 and Wheeler constitutes structural error, requiring reversal.” (Ibid.) The Legislature’s choice here also is generally consistent with its 2022 enactment of Code of Civil Procedure section 231.7, eliminating the requirement of a prima facie showing at trial and requiring a prosecutorial explanation once the defendant has asserted a Batson/Wheeler objection to a challenge. The Legislature is entitled to make postconviction discovery broader than what would be constitutionally required to establish a Batson/Wheeler violation. The Legislature, through Assembly Bill No. 1036, has determined that broad postconviction discovery of jury selection notes is warranted, so long as the prosecution has exercised peremptory challenges. The People may still seek court-approved redactions to their notes. We return this case for that process. III. DISPOSITION The petition for writ of mandate is granted. We order the trial court to adjudicate Montes’s request for the People’s jury notes in a manner consistent with this opinion. CERTIFIED FOR PUBLICATION RAPHAEL ______________________________________________________________________________________________________________________________________________________________________ J. We concur: FIELDS ______________________________________________________________________________________________________________________________________________________________________ Acting P. J. LEE ______________________________________________________________________________________________________________________________________________________________________ J. 12