Kling

Gregory D. Totten, District Attorney, Michael D. Schwartz, Special Assistant District Attorney, and Cheryl M. Temple, Deputy District Attorney, for Real Party in Interest.

Penal Code section 1326 requires that documents produced in response to a defendant's subpoena duces tecum in a criminal action be delivered to the clerk of the court. [1] The court may order an in camera hearing to determine whether the defendant is entitled to receive the documents subpoenaed. (§ 1326, subd. (c).)

In People v. Superior Court ( Humberto S. ) (2008) 43 Cal.4th 737 [ 76 Cal.Rptr.3d 276 , 182 P.3d 600 ] ( Humberto S. ), our Supreme Court held that the prosecution must receive notice of the hearing, but left unanswered the question to what extent the prosecution may participate in the hearing. Here we answer the question.

We conclude the prosecution has a limited role. Absent exceptional circumstances, the prosecution may not know who the defense has subpoenaed or what documents were subpoenaed unless the defense decides to use them at trial. The prosecution is then entitled to discovery pursuant to the reciprocal discovery provisions of section 1054.3. At section 1326 hearings,…