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.
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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).)
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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
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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
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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).)
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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.
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“(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.
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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
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“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
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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
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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
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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.
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