JAVIER VALLE IZAZAGA, Petitioner, v. THE SUPERIOR COURT OF TULARE COUNTY, Respondent; THE PEOPLE, Real Party in Interest, 54 Cal. 3d 356

Opinion LUCAS, C. J. In this case we resolve several issues presented by the adoption on June 5,1990, of an initiative measure designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act.” Petitioner raises various challenges under the federal and state Constitutions to the provisions of the measure authorizing reciprocal discovery in criminal cases. (See also Raven v. Deukmejian (1990) 52 Cal.3d 336 [276 Cal.Rptr. 326, 801 P.2d 1077] [Raven; single-subject and revision challenges to Prop. 115]; Tapia v.

Superior Court (1991) 53 Cal.3d 282 [279 Cal.Rptr. 592, 807 P.2d 434] [challenge to retroactive application of Prop. 115].) We conclude that, properly construed and applied, the discovery provisions of Proposition 115 are valid under the state and federal Constitutions, and that Proposition 115 effectively reopened the two-way street of reciprocal discovery in criminal cases in California. I. Facts Petitioner was charged with two counts of forcible rape (Pen. Code, former § 261, subd. (2)), one count of kidnapping (Pen. Code, § 207), and numerous enhancement allegations.

The acts were alleged to have occurred on June 18, 1990. The People served on petitioner an informal request for discovery pursuant to newly adopted Penal Code

section 1054.5, subdivision (b) (section 1054.5(b)). After petitioner refused the informal discovery request, the People filed a formal motion for discovery in superior court, to which petitioner filed an opposition. Following a hearing, the court granted the motion and issued an order requiring discovery. The Court of Appeal summarily denied petitioner’s application for a writ of mandate or prohibition. We stayed the discovery order and issued an alternative writ of mandate to consider the important constitutional and interpretive questions presented.

Petitioner raises several arguments regarding tiie constitutionality of the discovery provisions added by Proposition 115. Before we consider these contentions, we first review these new discovery provisions. II. Constitutional and Statutory Provisions Proposition 115 added both constitutional and statutory language authorizing reciprocal discovery in criminal cases.

Section 30, subdivision (c), added to

article I of the California Constitution (article I,

section 30(c)) by Proposition 115, declares discovery to be “reciprocal” in criminal cases. (“In order to provide for fair and speedy trials, discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the People through the initiative process.”) Proposition 115 also added a new Penal Code

chapter on discovery. (Pen. Code, § 1054 et seq. [hereafter, the new discovery chapter].) The new Penal Code sections relevant to the issues that arise in this case are

section 1054 (providing for

interpretation of the

chapter to give effect to certain specified purposes),

section 1054.1 (providing for defense discovery),

section 1054.3 (providing for prosecutorial discovery),

section 1054.5 (providing mechanism for compelled discovery),

section 1054.6 (providing that discovery shall not be required of work product or otherwise privileged information and material), and

section 1054.7 (requiring disclosure at least 30 days prior to trial, placing a continuing duty to disclose on both prosecution and defense, and providing for denial of disclosure on a showing of “good cause”). Proposition 115 also repealed several discovery provisions, including Penal Code former

section 1102.5 (previously declared unconstitutional in In re Misener (1985) 38 Cal.3d 543 [213 Cal.Rptr. 569, 698 P.2d 637] [Misener], discussed below), and Penal Code former

section 1430 (requiring prosecutor to furnish defendant with police and arrest reports). Furthermore, Proposition 115 repealed the provisions in Penal Code

section 859 requiring prosecutors to furnish defendants with police and arrest reports. III. Discussion A. Privilege Against Self-incrimination Petitioner asserts application of the discovery provisions enacted by Proposition 115 would violate his state and federal constitutional privileges against compelled self- incrimination. We disagree. 1. Federal Constitutional Challenge. The Fifth Amendment of the United States Constitution recites in pertinent part: “No person . . . shall be compelled in any criminal case to be a witness against himself . . . .” Petitioner asserts that the new discovery

chapter enacted by Proposition 115 compels a criminal defendant to be a witness against oneself in violation of the foregoing self-incrimination clause. First, petitioner argues that the requirement under

section 1054.3 that the defense must disclose to the prosecution the names and addresses of all witnesses it intends to call at trial, rather than merely its alibi witnesses, violates the self-incrimination clause. Decisions of the Supreme Court compel a contrary conclusion. In Williams v.

Florida (1970) 399 U.S. 78 [26 L.Ed.2d 446, 90 S.Ct. 1893] (Williams), the high court upheld against a self-incrimination clause challenge Florida’s “notice-of-alibi” rule, which required a criminal defendant intending to rely on an alibi defense to notify the prosecution of the place where the defendant claimed to be at the time in question, and of the names and addresses of the witnesses the defendant intended to call in support of the alibi. Petitioner, noting that

section 1054.3 is not limited to situations involving an alibi defense, attempts to distinguish Williams and argues that the self-incrimination clause prohibits the compelled discovery of defense witnesses in the absence of an alibi defense and the special problems it presents. As support for this argument petitioner cites the language in Williams that, “Given the ease with which an alibi can be fabricated, the State’s interest in protecting itself against an eleventh-hour defense is both obvious and legitimate.” (Id. at p. 81 [26 L.Ed.2d at p. 450].) Petitioner’s argument is misguided.

The language in Williams on which he relies relates to the due process and fair trial issues addressed in that case, and is not relevant to the Fifth Amendment analysis. Moreover, petitioner’s argument misinterprets the scope of the self-incrimination clause, which “protects a person only against being incriminated by his own compelled testimonial communications.” (Fisher v.

United States (1976) 425 U.S. 391, 409 [48 L.Ed.2d 39, 55, 96 S.Ct. 1569], italics added.) Under cases of the Supreme Court, there are four requirements that together trigger this privilege: the information sought must be (i) “incriminating”; (ii) “personal to the defendant”; (iii) obtained by “compulsion”; and (iv) “testimonial or communicative in nature.” (See United States v. Nobles (1975) 422 U.S. 225 [45 L.Ed.2d 141, 95 S.Ct. 2160] [Nobles]; Schmerber v. California (1966) 384 U.S. 757, 761 [16 L.Ed.2d 908, 914, 86 S.Ct. 1826]; Doe v.

United States (1988) 487 U.S. 201, 207 [101 L.Ed.2d 184, 194-195, 108 S.Ct. 2341].) Statutorily mandated discovery of evidence that meets these four requirements is prohibited. Conversely, discovery of evidence that does not meet each of these requirements is not barred by the self-incrimination clause. (See Schmerber v. California, supra, 384 U.S. 757, 761 [16 L.Ed.2d 908, 914].) This is so even in the absence of special state interests such as protection against easily fabricated “eleventh hour” defenses.

The absence of particular state interests in disclosure affects none of these four requirements, and thus cannot itself trigger the self-incrimination clause. (See New Jersey v.

Portash (1979) 440 U.S. 450, 459 [59 L.Ed.2d 501, 510, 99 S.Ct. 1292].) In Williams, supra, 399 U.S. 78, the high court held that discovery of the names and addresses of a defendant’s alibi witnesses is not “compelled” self-incrimination, and therefore does not violate the Fifth Amendment. (Id. at p. 85 [26 L.Ed.2d at p. 452].) The court reasoned, “At most, the rule only compelled [defendant] to accelerate the timing of his disclosure, by forcing him to divulge at an earlier date information that the [defendant] from the beginning planned to divulge at trial." (Ibid. [26 L.Ed.2d at p. 452], italics added.) Thus, discovery of the names and addresses of the witnesses that the defense intends to call at trial, whether or not in support of an alibi defense, merely forces the defendant “to divulge at an earlier date information that the [defendant] from the beginning planned to divulge at trial.” (Ibid. [26 L.Ed.2d at p. 452].) Under the rationale of Williams, such discovery does not constitute compelled self-incrimination, and therefore does not implicate the privilege.

We thus address petitioner’s second contention, that insofar as

section 1054.3 requires the defense to disclose before trial any statements of the witnesses it intends to call at trial, that

section violates the self-incrimination clause. Once again, decisions of the Supreme Court compel a contrary conclusion. Compelled disclosure of the statements of defense witnesses does not meet all of the requirements necessary to implicate the self-incrimination clause.

We agree with petitioner that the acceleration doctrine of Williams discussed above is not dispositive here, for it is not a matter of merely forcing the defendant “to divulge at an earlier date information that the [defendant] from the beginning planned to divulge at trial.” (Williams, supra, 399 U.S. 78, 85 [26 L.Ed.2d 446, 452].) Some statements of witnesses the defense intends to call might never be offered at trial by the defense. Thus, to the extent that the statements are incriminating, such incrimination is indeed compelled.

And clearly such statements are “testimonial or communicative in nature.” (See Schmerber v. California, supra, 384 U.S. 757, 761 [16 L.Ed.2d 908, 914].) Such statements are not, however, “personal to the defendant.” As the high court stated in Nobles, supra, 422 U.S. 225, the privilege against self-incrimination “ ‘is a personal privilege: it adheres basically to the person, not to information that may incriminate him.’ ” (Id. at p. 233 [45 L.Ed.2d at pp. 150-151], quoting Couch v.

United States (1973) 409 U.S. 322, 327 [34 L.Ed.2d 548, 553-554, 93 S.Ct. 611], italics in original.) In Nobles, the court rejected a self-incrimination challenge to atrial court order requiring the defense to disclose its investigator’s report of statements made by prosecutorial witnesses once the defense called its investigator as a trial witness. In Nobles the high court reasoned: “The fact that these statements of third parties were elicited by a defense investigator on [defendant’s] behalf does not convert them into [defendant’s] personal communications.

Requiring their production from the investigator therefore would not in any sense compel [defendant] to be a witness against himself or extort communications from him.” (Nobles, supra, 422 U.S. 225, 234 [45 L.Ed.2d 141, 151].) The court concluded, “the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial.” (Ibid. [45 L.Ed.2d 141, 151].) The high court’s reasoning in Nobles is controlling here.

Section 1054.3 requires disclosure by the defense of statements, and reports of statements, of “persons, other than defendant,” that the defense intends to call as witnesses at trial. Thus, the compelled statements are those of “third parties” within the meaning of Nobles and are therefore outside of the scope of the self-incrimination clause. (Nobles, supra, 422 U.S. 225, 234 [45 L.Ed.2d 141, 151].) Petitioner attempts to distinguish Nobles, noting that the Supreme Court has never upheld disclosure of statements of defense witnesses before trial.

He further observes that the Federal Rules of Criminal Procedure provide for disclosure of statements of defense witnesses only after they testify at trial, citing rule 26 of the Federal Rules of Criminal Procedure (18 U.S.C.). Here again petitioner’s argument misinterprets the scope of the self-incrimination clause. The timing of the disclosure, whether before or during trial, does not affect any of the four requirements that together trigger the privilege against self-incrimination, and therefore cannot implicate the privilege. The acceleration doctrine of Williams, supra, 399 U.S. 78, compels this conclusion.

We conclude that statements of the witnesses that the defense intends to call at trial are not personal to the defendant, and therefore compelled discovery of such statements does not implicate the self-incrimination clause. Having concluded that application of the discovery provisions enacted by Proposition 115 does not violate petitioner’s Fifth Amendment privilege against self-incrimination, we turn now to the privilege under the state Constitution. 2. State Constitutional Challenge.

Section 15 of

article I of the California Constitution (hereafter

article I,

section 15) guarantees the defendant in a criminal case certain procedural rights, including the right not to be compelled to testify against oneself. This court relied on that provision in Misener, supra, 38 Cal.3d 543, to invalidate former Penal Code

section 1102.5, which permitted the prosecution to discover from the defendant, following testimony on direct examination of defense witnesses other than the defendant, prior statements made by those witnesses. Petitioner asserts the new discovery

chapter is unconstitutional under our decisions in Misener and other cases interpreting the state constitutional privilege against self-incrimination. Misener, supra, 38 Cal.3d 543, was preceded by a long line of decisions of this court on the subject of prosecutorial discovery, beginning with Jones v. Superior Court (1962) 58 Cal.2d 56 [22 Cal.Rptr. 879, 372 P.2d 919, 96 A.L.R.2d 1213] (Jones; holding that pretrial discovery by prosecution of identities and written reports of expert witnesses defendant intends to call at trial does not violate state self-incrimination clause or attorney-client privilege).

It is appropriate that our analysis of the state Constitution begin with the observation of then-Justice Traynor in Jones that “absent the privilege against self-incrimination or other privileges provided by law, the defendant in a criminal case has no valid interest in denying the prosecution access to evidence that can throw light on issues in the case.” (Jones, supra, 58 Cal.2d at p. 59.) In Jones the court concluded that discovery, functioning so as to promote “the orderly ascertainment of truth,” “should not be a one-way street.” (Id. at p. 60.) The two-way street envisioned by then-Justice Traynor in Jones was short lived as the road to prosecutorial discovery was effectively closed in Prudhomme v.

Superior Court (1970) 2 Cal.3d 320 [85 Cal.Rptr. 129, 466 P.2d 673] (Prudhomme). In Prudhomme, we reasoned that “certain significant developments in the law since Jones,” including a decision of the Supreme Court applying the Fifth Amendment privilege against self-incrimination to the states (Malloy v.

Hogan (1964) 378 U.S. 1 [12 L.Ed.2d 653, 84 S.Ct. 1489]), and the high court’s “increasing emphasis upon the role played by” that privilege, were cause to reexamine the policies underlying prosecutorial discovery. (Prudhomme, supra, 2 Cal.3d at p. 323.) Prudhomme, essentially limiting Jones to its facts, reasoned that the focus must be whether the compelled discovery “conceivably might lighten the prosecution’s burden of proving its case in chief” and held that the privilege “forbids compelled disclosures which could serve as a ‘link in a chain’ of evidence tending to establish guilt of a criminal offense.” (Id. at p. 326.) Accordingly, Prudhomme annulled a discovery order that would have required the defendant to disclose to the prosecution the names, addresses and expected testimony of all witnesses he intended to call at trial. (Id. at p. 328.) The federal trend that we perceived in Prudhomme, supra, 2 Cal.3d 320, was abruptly terminated two months later by the high court’s decision in Williams, supra, 399 U.S. 78, upholding Florida’s notice-of-alibi rule against a Fifth Amendment self-incrimination challenge.

Thereafter, in a case addressing the validity of a nonstatutory discovery order requiring the defense to disclose to the prosecution the names and addresses of the witnesses it would call, we retained the Prudhomme rule, resting it on the privilege against self-incrimination contained in the California Constitution. (Reynolds v.

Superior Court (1974) 12 Cal.3d 834 [117 Cal.Rptr. 437, 528 P.2d 45] [Reynolds].) We stated in Reynolds, “it cannot be gainsaid that Prudhomme put this court on record as being considerably more solicitous of the privilege against self-incrimination than federal law currently requires.” (Id. at p. 843; see also Allen v.

Superior Court (1976) 18 Cal.3d 520, 524-526 [134 Cal.Rptr. 774, 557 P.2d 65] [invalidating court order requiring disclosure by defendant of prospective witnesses, so jurors could ascertain whether they were acquainted with them, as violative of state privilege against self-incrimination in absence of finding that such disclosure could not possibly tend to incriminate defendant or lessen prosecution’s burden of proof].) Any possibility that the state privilege against self-incrimination would nonetheless permit some form of prosecutorial discovery was eliminated in Misener, supra, 38 Cal.3d 543, in which we struck down the Legislature’s attempt to fashion a reciprocal discovery statute, reasoning that to the extent a compelled disclosure is useful to the prosecution’s case, it violates the defendant’s state constitutional privilege against self-incrimination.

The foregoing cases represented the state of the law facing the voters in June 1990 when they voted to amend the California Constitution. As discussed above, Proposition 115 added

article I,

section 30(

c) to the California Constitution, providing that “discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the people through the initiative process.” The concept of “reciprocal” discovery mandated by

article I,

section 30(

c) is inherently inconsistent with the roadblock to prosecutorial discovery created by our earlier

interpretations of the state constitutional privilege against self-incrimination as developed in the Prudhomme line of cases. Thus, in resolving this inconsistency we must apply principles of constitutional

interpretation. Rudimentary principles of construction dictate that when constitutional provisions can reasonably be construed so as to avoid conflict, such a construction should be adopted. (Serrano v. Priest (1971) 5 Cal.3d 584, 596 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]; see also Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal.Rptr. 115, 755 P.2d 299].) As a means of avoiding conflict, a recent, specific provision is deemed to carve out an exception to and thereby limit an older, general provision. (See, e.g., People v.

Valentine (1986) 42 Cal.3d 170, 181 [228 Cal.Rptr. 25, 720 P.2d 913]; Serrano v. Priest, supra, 5 Cal.3d at p. 596; People v. Western Airlines, Inc. (1954) 42 Cal.2d 621, 637 [268 P.2d 723].) Therefore, to the extent that the Prudhomme line of cases impeded reciprocal discovery,

article I,

section 30(

c) must be seen as abrogating those cases, and limiting the scope of the state constitutional privilege against self-incrimination as it relates to reciprocal discovery. (See People v. Valentine, supra, 42 Cal.3d at p. 181.)

Article I,

section 30(

c) constitutes a specific exception to the broad privilege against self-incrimination set forth in

article I,

section 15 of the California Constitution. (Ibid.) Such an

interpretation gives effect to the intent of the voters in passing Proposition 115. The manifest intent behind the measure was to reopen the two-way street of reciprocal discovery. The

preamble to Proposition 115 states that “comprehensive reforms are needed to restore balance and fairness to our criminal justice system.” (Prop. 115, § 1(a), italics added.) In order to accomplish this goal, the voters intended to remove the roadblock to prosecutorial discovery created by our

interpretations of the state constitutional privilege against self-incrimination as developed in the Prudhomme line of cases. The

preamble further states, “In order to address these concerns and to accomplish these goals, we the people further find that it is necessary to reform the law as developed in numerous California Supreme Court decisions . . . .” (Prop. 115, § 1(b).) We note the California Constitution continues to afford criminal defendants an independent source of protection from infringement of certain rights, including the privilege against self-incrimination. (See Raven, supra, 52 Cal.3d 336 [invalidating Prop. 115 to extent it would have required

interpretation of state constitutional privilege against self-incrimination, and other rights of criminal defendants, consistently with analogous rights in federal Constitution].) These general rights of criminal defendants, however, are necessarily limited to the extent they are inconsistent with

article I,

section 30(c), pertaining to reciprocal discovery. (See People v. Valentine, supra, 42 Cal.3d at p. 181.) Thus, petitioner’s reliance on the state constitutional privilege against self-incrimination as a restriction on reciprocal discovery is unavailing. B. Right to Due Process of Law Petitioner asserts the new discovery

chapter violates his right to due process of the law under the Fourteenth Amendment of the United States Constitution. We disagree. The Fourteenth Amendment recites in pertinent part: “No state shall . . . deprive any person of life, liberty, or property, without due process of law . . . .” 1. Reciprocity Challenge. The foregoing due process clause has little to say about the amount of discovery which must be afforded the parties in a criminal prosecution. (Wardius v. Oregon, supra, 412 U.S. 470, 474 [37 L.Ed.2d 82, 87] [Wardius]; but cf. Brady v.

Maryland (1963) 373 U.S. 83 [10 L.Ed.2d 215, 83 S.Ct. 1194] [Brady; prosecutor has obligation to disclose exculpatory evidence].) The due process clause, however, “does speak to the balance of forces between the accused and his accuser.” (Wardius, supra, at p. 474 [37 L.Ed.2d at p. 87], italics added.) That is, when the prosecution is allowed discovery of the defense, that discovery must be reciprocal. (Ibid. [37 L.Ed.2d at p. 87.].) In Wardius the Supreme Court held that under the due process clause, a criminal defendant cannot be compelled by discovery procedures to reveal his alibi defense in the absence of fair notice that he would have the opportunity to discover the prosecution’s rebuttal witnesses.

Petitioner asserts the new discovery

chapter fails on its face to provide for reciprocal discovery as required by the due process clause. Properly construed, we conclude that the new discovery

chapter affords defendants sufficient rights of reciprocal discovery to meet the requirements of the due process clause. At the outset we note that, for two reasons, our

interpretation of the statutory scheme should favor an implicit requirement of reciprocity. First,

article I,

section 30(c), the new constitutional provision enacted contemporaneously with the new discovery chapter, expressly provides that “discovery in criminal cases shall be reciprocal in nature, as prescribed by the Legislature or by the People through the initiative process.” It follows that the voters, in requiring that any initiative prescribing that discovery in criminal cases be “reciprocal in nature,” would naturally intend that their contemporaneous enactment of a discovery scheme for criminal cases would in fact provide for such reciprocity. Second, turning to the statutory enactment itself, Penal Code

section 1054 (section 1054) expressly provides that the entire new discovery

chapter “shall be interpreted to give effect to all of the following purposes,” including the provision that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.” (§ 1054, subd. (e), italics added.) Given that the due process clause mandates reciprocity when the prosecution obtains discovery materials from the defense (Wardius, supra, 412 U.S. 470), and given that the new discovery

chapter provides for prosecutorial discovery of defense evidence (see Pen. Code, § 1054.1 [section 1054.1]), it follows that the new discovery

chapter should, if possible, be interpreted as providing such reciprocity. With this in mind, we review the new discovery

chapter to determine whether, explicitly or implicitly, it meets the requirement of reciprocity under the due process clause. Comparing the obligations of the defense under

section 1054.3 (see, ante, p. 365, fn. 3) with those of the prosecutor under

section 1054.1 (see, ante, p. 373, fn. 10), it is clear that the two provisions closely track each other, with any imbalance favoring the defendant as required by reciprocity under the due process clause. (See Wardius, supra, 412 U.S. 470, 475, fn. 9 [37 L.Ed.2d 82, 88] [“If there is to be any imbalance in discovery rights, it should work in the defendant’s favor.”].) Both the prosecution and the defense must disclose the identities and addresses of all persons they intend to call as witnesses at trial, although the defense need not disclose whether the defendant will testify.

Any relevant written or recorded statements of such witnesses, or reports of the statements of such witnesses, must also be disclosed. And while the prosecution must disclose all “relevant real evidence seized or obtained as part of the investigation,” the defense need disclose only that real evidence it intends to offer at trial. Moreover, the provisions relating to the timing of disclosure and the mechanics of enforcement apply evenhandedly to both the prosecution and the defense.

In reviewing these new provisions, it is clear that the scheme is “carefully hedged with reciprocal duties requiring state disclosure to the defendant.” (Williams, supra, 399 U.S. 78, 81 [26 L.Ed.2d 446, 450].) Petitioner nonetheless makes several arguments asserting insufficiency or lack of reciprocity in the new discovery chapter, which we address in turn. First, petitioner claims the new discovery

chapter is inadequate because under it, following a compelled disclosure by the defense, the prosecution is not compelled to reciprocate; rather, discovery of the prosecution is required only “upon demand” by the defendant. Petitioner appears to argue that once a discovery of the defense is compelled, discovery of the prosecution should be automatic. We disagree.

Section 1054.5(

b) provides that before either party may seek court enforcement of any disclosure required by the new discovery scheme, the party must first make an informal request to the other party for the information. Given that the prosecution must also obtain discovery of the defense through the mechanism of

section 1054.5(b), the due process clause is not violated by requiring the defendant to use the same mechanism to effectuate his or her reciprocal discovery rights. The scheme is reciprocal in that the same enforcement mechanism is used by both the prosecution and the defense. The high court in Wardius, supra, 412 U.S. 470, held that the due process clause requires “notice that [the defendant] would have an opportunity to discover the State’s rebuttal witnesses.” (Id. at p. 479 [37 L.Ed.2d at p. 90].)

Section 1054.5(

b) provides a defendant with notice of such an opportunity. Second, petitioner asserts the new discovery

chapter is insufficient because following a compelled disclosure of a defendant’s witnesses, there is no duty on the part of the prosecutor to disclose to the defense the prosecution’s rebuttal witnesses, as required by Wardius, supra, 412 U.S. 470. Petitioner notes that the prosecutor must disclose only those witnesses he or she “intends” to call at trial, and argues that prosecutors can take the position that disclosure of rebuttal witnesses is not required because their intent to call any such witnesses is dependent on whom the defense calls and the testimony of the defense witnesses.

We find no constitutional infirmity. The due process clause requires notice that the defendant will have the opportunity to discover the prosecutor’s rebuttal witnesses. (Wardius, supra, 412 U.S. 470, 479 [37 L.Ed.2d 82, 90].) Before addressing petitioner’s argument, we note that the enumeration of a criminal defendant’s discovery rights under

section 1054.1 does hot specify that rebuttal witnesses are included. However, the only reasonable

interpretation of the requirement that the prosecution disclose “[t]he names and addresses of persons the prosecutor intends to call as witnesses at trial” is that this

section includes both witnesses in the prosecution’s case-in-chief and rebuttal witnesses that the prosecution intends to call. The phrase “at trial” means exactly that—at the trial, not merely during the prosecution’s case-in-chief. A like provision of Ohio’s discovery scheme was similarly interpreted by the Ohio Supreme Court, which held the requirement that the prosecution disclose the witnesses it “intends to call at trial” includes “all witnesses it reasonably anticipates it is likely to call, whether in its case-in-chief or in rebuttal.” (State v.

Howard (1978) 56 Ohio St.2d 328 [100 Ohio Op.3d 448, 383 N.E.2d 912, 915], italics added.) Addressing petitioner’s argument, we begin with the observation that the prosecution’s right to discover defendant’s witnesses under

section 1054.3 is triggered by the intent of the defense to call that witness. Thus, the disclosure by the defense of its witnesses under

section 1054.3 signals to the prosecution that the defense “intends” to call those witnesses at trial. It follows that the prosecution must necessarily “intend” to call any of its witnesses who will be used in refutation of the defense witnesses if called. A prosecutor cannot “sandbag” the defense by compelling disclosure of witnesses the defense intends to call, and then in effect redefining the meaning of “intends” when it comes time to disclose rebuttal witnesses. The same definition applies to both the prosecution and the defense and thereby assures reciprocity. A disclosure of witnesses under

section 1054.3 thus triggers a defendant’s right to discover rebuttal witnesses under

section 1054.1, fulfilling the requirement of reciprocity under Wardius, supra, 412 U.S. 470. Third, petitioner claims that reciprocity under the due process clause requires that the prosecution disclose not only its rebuttal witnesses (and their recorded statements or reports of their statements), but also all other evidence it intends to use to refute the evidence disclosed by the defense, and that the new discovery

chapter fails to require such reciprocity. We agree with petitioner that under the new discovery

chapter the prosecutor need not disclose any evidence not otherwise discoverable by the defense under

section 1054.1. We conclude, however, that the due process clause does not require such disclosure.

In Williams, supra, 399 U.S. 78, the high court held a discovery rule under which the prosecution is not required to disclose its evidence in refutation of the alibi evidence disclosed by the defense (other than its rebuttal witnesses and their statements) does not violate the due process requirement of reciprocity (Id. at pp. 81-82 [26 L.Ed.2d at pp. 449-450].) The high court concluded that Florida’s rule, requiring the prosecution to disclose the witnesses it proposes to offer to rebut the alibi defense in exchange for the defendant’s disclosure of alibi witnesses, met the due process requirement of reciprocity. (Ibid. [26 L.Ed.2d at p. 450].) We recognize that general language in the Wardius opinion gives some support to petitioner’s argument: “It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to a hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” (Wardius, supra, 412 U.S. 470, 476 [37 L.Ed.2d 82, 88].) Although this language could be read to require disclosure of all evidence in the possession of the prosecutor that will be used to refute the defendant’s alibi, this is an incorrect

interpretation of the Wardius opinion and the due process clause.

We stated in Reynolds, supra, 12 Cal.3d 834, that under Wardius the federal constitutional requirement of reciprocity requires disclosure only of rebuttal witnesses in response to a defendant’s disclosure of an alibi defense and alibi witnesses: “Two passages in Wardius indicate that discovery to the defendant of the identities of the witnesses by which the prosecution will seek to rebut or refute an alibi defense is the sine qua non of the reciprocity constitutionally required of notice-of-alibi procedures.” (Id. at p. 844, fn. 13, italics added.) We then quoted the two sections of Wardius that make this point clear.

Reciprocity under the due process clause requires notice that the defendant will have the opportunity to discover the prosecutor’s rebuttal witnesses (and their statements) following discovery of defense witnesses by the prosecutor. (Wardius, supra, 412 U.S. 470, 479 [37 L.Ed.2d 82, 90].) Reciprocity requires a fair trade, defense witnesses for prosecution witnesses, and nothing more. We glean nothing from the Supreme Court’s

interpretations of the due process clause to lead us to conclude that reciprocity requires the prosecutor to disclose other evidence gathered in response to a compelled defense disclosure that may be used to refute the defendant’s case, when the defense is not required to do the same following discovery of the prosecution’s witnesses. In

summary, we conclude that the new discovery

chapter enacted by Proposition 115 creates a nearly symmetrical scheme of discovery in criminal cases, with any imbalance favoring the defendant as required by reciprocity under the due process clause. (See Wardius, supra, 412 U.S. 470, 475, fn. 9 [37 L.Ed.2d 82, 88].) 2. “Brady” Evidence Challenge. Petitioner asserts the new discovery

chapter violates the due process clause by failing to require the prosecutor to disclose all exculpatory evidence as mandated by the high court in Brady, supra, 373 U.S. 83, and its progeny. (See, e.g., United States v. Bagley (1985) 473 U.S. 667 [87 L.Ed.2d 481, 105 S.Ct. 3375]; California v. Trombetta (1984) 467 U.S. 479 [81 L.Ed.2d 413, 104 S.Ct. 2528]; United States v. Agurs (1976) 427 U.S. 97 [49 L.Ed.2d 342, 96 S.Ct. 2392]; Giglio v.

United States (1972) 405 U.S. 150 [31 L.Ed.2d 104, 92 S.Ct. 763].) In order that a defendant may secure a fair trial as required by the due process clause, “the prosecution has a duty to disclose all substantial material evidence favorable to an accused. [Citations.] That duty exists regardless of whether there has been a request for such evidence [citation], and irrespective of whether the suppression was intentional or inadvertent.” (.People v. Morris (1988) 46 Cal.3d 1, 29-30 [249 Cal.Rptr. 119, 756 P.2d 843].) Petitioner asserts the prosecutor’s obligation under new

section 1054.1, subdivision (

e) to disclose “any exculpatory evidence” to the defendant is more narrowly defined than the prosecutor’s duty of disclosure under the due process clause. Petitioner’s argument is misplaced. The prosecutor’s duties of disclosure under the due process clause are wholly independent of any statutory scheme of reciprocal discovery. The due process requirements are self-executing and need no statutory support to be effective. Such obligations exist whether or not the state has adopted a reciprocal discovery statute.

Furthermore, if a statutory discovery scheme exists, these due process requirements operate outside such a scheme. The prosecutor is obligated to disclose such evidence voluntarily, whether or not the defendant makes a request for discovery. No statute can limit the foregoing due process rights of criminal defendants, and the new discovery

chapter does not attempt to do so. On the contrary, the new discovery

chapter contemplates disclosure outside the statutory scheme pursuant to constitutional requirements as enunciated in Brady, supra, 373 U.S. 83, and its progeny.

Section 1054 expressly provides that the new discovery

chapter shall be interpreted to give effect to the provision that “no discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States.” (§ 1054, subd. (e), italics added.) We conclude there is no due process violation because the new discovery

chapter does not affect the defendant’s constitutional right to disclosure of all exculpatory evidence in the hands of the prosecution as mandated by the high court in Brady, supra, 373 U.S. 83, and its progeny. C. Right to Effective Assistance of Counsel Petitioner asserts the new discovery

chapter violates his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution. We disagree. The Sixth Amendment recites in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense.” 1. Assistance of Counsel Challenge. Petitioner asserts prosecutorial discovery of the statements of defense witnesses violates the foregoing right to counsel clause by chilling defense counsel’s trial preparation.

In petitioner’s view, such discovery penalizes the defendant whose attorney is most vigilant in preparing the defense. We perceive no Sixth Amendment violation. We first note that the Supreme Court has never struck down a discovery scheme as violative of the right to effective assistance of counsel. Furthermore, under the new discovery chapter, a criminal defendant need disclose only those witnesses (and their statements) the defendant intends to call at trial. It is logical to assume that only those witnesses defense counsel deems helpful to the defense will appear on a defendant’s witness list.

The identity of damaging witnesses that the defense does not intend to call at trial need not be disclosed. Thus, there is nothing in the new discovery

chapter that would penalize exhaustive investigation or otherwise chill trial preparation of defense counsel such that criminal defendants would be denied the right to effective assistance of counsel under the Sixth Amendment.

Our conclusion is in line with that of the high court in Nobles, which rejected an argument that the court order violated the Sixth Amendment by requiring the defense, once it called its investigator as a trial witness, to disclose the investigator’s report of statements made by prosecutorial witnesses. (Nobles, supra, 422 U.S. 225, 240, fn. 15 [45 L.Ed.2d 141, 154-155].) In Nobles the court stated, “The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth.” (Id. at p. 241 [45 L.Ed.2d at p. 155].) Prosecutorial discovery of the statements of intended defense witnesses is a “legitimate demand” of the criminal justice system aimed at avoiding testimonial “half-truths” by promoting what then-Justice Traynor referred to as “the orderly ascertainment of the truth.” (Jones, supra, 58 Cal.2d 56, 60.) Petitioner attempts to distinguish Nobles, arguing that its rejection of the right to counsel challenge was based on a theory of waiver, i.e., the defend- ant waived his Sixth Amendment claim by his “voluntary election to make testimonial use of [the defense] investigator’s report.” (Nobles, supra, 422 U.S. 225, 240, fn. 15 [45 L.Ed.2d 141, 154-155].) The high court, however, expressly stated that waiver was not the sole basis for rejecting the right to counsel challenge.

As the court stated, “Moreover, apart from this waiver, we think that the concern voiced by [defendant] fails to recognize the limited and conditional nature of the court’s order.” (Ibid. [45 L.Ed.2d 141, 155], italics added.) Under the new discovery chapter, discovery is limited to relevant statements and reports of statements of defense witnesses and conditioned upon the defendant’s intent to call the witnesses at trial. (See Nobles, supra, 422 U.S. 225, 240, fn. 15 [45 L.Ed.2d 141, 154-155].) The new discovery provisions do not give the prosecution free rein over all defense files.

Petitioner also attempts to distinguish Nobles as involving disclosure during trial, whereas the new discovery

chapter contemplates discovery before trial. We discern no credible argument that would lead us to conclude the fact that discovery occurs before, rather than during, trial renders such discovery violative of the Sixth Amendment. The limited and conditional discovery authorized by the new discovery

chapter is constitutionally acceptable under the reasoning of Nobles, supra, 422 U.S. 225, regardless of the timing of the discovery. 2. Attorney Work Product Challenge. Petitioner contends the provision of the new discovery

chapter requiring pretrial disclosure of statements of defense witnesses implicates the Sixth Amendment by violating the work product doctrine enunciated by the high court in Hickman v. Taylor (1947) 329 U.S. 495 [91 L.Ed. 451, 67 S.Ct. 385] (Hickman). Petitioner misreads Hickman, supra, 329 U.S. 495. The doctrine developed in Hickman, and applied in the context of discovery in criminal cases in Nobles, supra, 422 U.S. 225, is not based on the right to counsel clause; rather, it is “a form of federally created privilege” based on federal supervisory policy and federal statute. (Greyhound Corp. v.

Superior Court (1961) 56 Cal.2d 355, 399-401 [15 Cal.Rptr. 90, 364 P.2d 266] [Greyhound; Hickman work product privilege did not exist in California].) There is no privilege for attorney work product in the California Constitution. Because the work product doctrine is not constitutionally founded, there is no basis for a facial challenge to the constitutionality of the new discovery

chapter on work product grounds. Moreover, we note the new discovery

chapter expressly provides that attorney work product is nondiscoverable. Because there is no constitutional basis for a work product privilege, any protection in California of the work product of an attorney must be based on state common or statutory law.

Section 2018 (formerly § 2016) of the Code of Civil Procedure codified the work product doctrine that developed in the common law as to civil cases subsequent to our decision in Greyhound, supra, 56 Cal.2d 355. (See People v. Collie, supra, 30 Cal.3d 43, 59.) Under that section, the work product of an attorney is nondiscoverable unless the court determines that the denial of discovery will unfairly prejudice the party seeking discovery or will result in an injustice. (Code Civ.

Proc., § 2018, subd. (b).) Furthermore, any writing that reflects “an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.’’'’ (Code Civ. Proc., § 2018, subd. (c), italics added.) Prior to the enactment of Proposition 115, we held that the work product doctrine also applies to criminal cases. (People v. Collie, supra, 30 Cal.3d 43, 59.) The new discovery

chapter recognizes this. Penal Code

section 1054.6 (section 1054.6) of the new discovery

chapter provides, “Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which are work product as defined in subdivision (

c) of

Section 2018 of the Code of Civil Procedure . . . This

section thus expressly provides that attorney work product is nondiscoverable. D. Other Issues Beyond the facial challenge to the constitutionality of the new discovery chapter, petitioner speculates that disclosure of defense information will in certain circumstances violate the United States Constitution. However,

section 1054.6 provides, “Neither the defendant nor the prosecuting attorney is required to disclose any materials or information which . . . are privileged as provided by the Constitution of the United States.” Thus, the new discovery

chapter appears to provide adequate limitations on the discovery requirements to protect a defendant’s rights under the federal Constitution. Petitioner also argues that the new discovery

chapter contains no procedural means for a defendant to raise potential constitutional issues that might bear on whether or not certain requested materials are discoverable. Petitioner correctly notes that Penal Code

section 1054.7, which provides the mechanism for denial of discovery on a showing of “good cause,” and which contemplates the possibility of in camera review, does not apply to a defendant’s assertion that his constitutional rights would be violated by discovery. Constitutional rights of criminal defendants are self-executing and need no statutory enforcement mechanism. Just as in other areas of criminal prosecutions, a defendant may file opposition to the prosecution’s (§ 1054.5(b)) motion for formal discovery and have the motion calendared for hearing before the trial court.

The normal avenues of opposition to prosecutorial motions are available to defendants claiming infringement of constitutional rights. (See City of Alhambra v. Superior Court (1988) 205 Cal.App.3d 1118, 1130-1131 [252 Cal.Rptr. 789].) These procedural safeguards are adequate to protect the constitutional rights of criminal defendants. Moreover,

section 1054.5(

b) empowers the trial court to “make any order necessary to enforce the provisions of this

chapter . . . .” Among those provisions is

section 1054.6, which states unequivocally that defendants are not required “to disclose any materials or information which are . . . privileged as provided by the Constitution of the United States.” Thus, under the new discovery

chapter the trial court may, in its discretion, order briefing and argument on a contested issue of privilege, and conduct an in camera hearing where necessary. The procedural history in petitioner’s case belies his argument to the contrary. After petitioner filed opposition papers raising constitutional claims, the motion was heard by the trial court prior to its decision on the discovery order. Last, petitioner contends

section 3 of Proposition 115, which purports to require that

interpretation of certain state constitutional rights of criminal defendants, including the rights to due process and a speedy and public trial, be consistent with analogous rights in the federal Constitution, denies him equal protection of the law because the

interpretation of the People’s new constitutional rights to due process and a speedy and public trial (Cal. Const., art. I, § 29) are not so limited by federal law. Our recent decision in Raven, supra, 52 Cal.3d 336, striking and severing

section 3 of Proposition 115, and thus acknowledging the continued independent vitality of these enumerated state constitutional rights, renders this claim moot. IV. Disposition Because we conclude that, properly construed, the new discovery

chapter enacted by Proposition 115 is, on its face, constitutionally valid under the federal and state Constitutions, the alternative writ of mandate issued by this court on February 22,1991, is discharged, and the peremptory writ is denied. The order of the Court of Appeal is affirmed. Panelli, J., Arabian, J., and Baxter, J., concurred. The court’s order required that petitioner disclose to the People the following: “

(1) The names and addresses of persons, other than the Defendant, counsel or Defendant intends to call at trial. [1]

(2) Any relevant written or recorded statements of the persons in #1 above and/or reports of the statements of such persons. [1]

(3) Any reports or statements of experts made in connection with this case, including, but not limited to, the results of physical or mental examinations, scientific tests, experiments, or comparisons which the Defendant or counsel intend to offer as evidence at the trial of this case. [1]

(4) Any ‘real,’ i.e. tangible or physical, evidence which the Defendant or counsel intend to offer in evidence at trial." This order required that petitioner disclose all the information that he could be compelled to disclose pursuant to new Penal Code

section 1054.3 (section 1054.3). (See, post, p. 365, fn. 3.) Tbe new discovery

chapter of the Penal Code also includes

section 1054.2 (prohibiting disclosure to defendant, but not to defense counsel, of address and telephone number of victims and prosecution witnesses) and

section 1054.4 (providing that the

chapter does not limit law enforcement from lawfully gathering nontestimonial evidence).

Section 1054.3 provides that “The defendant and his or her attorney shall disclose to the prosecuting attorney: [f] (

a) The names and addresses of persons, other than the defendant, he or she intends to call as witnesses at trial, together with any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial. [J] (

b) Any real evidence which the defendant intends to offer in evidence at the trial.” These four requirements emanate directly from the wording of the self-incrimination clause: “No person . . . shall be compelled in any criminal case to be a witness against himself. . . .” (Italics added.) In rejecting our analysis here, Justice Broussard’s dissent relies on Brooks v. Tennessee (1972) 406 U.S. 605 [32 L.Ed.2d 358, 92 S.Ct. 1891] [Brooks; holding rule requiring defendant to testify before other defense witnesses, or not at all, violative of accused’s constitutional right to remain silent], and Griffin v.

California (1965) 380 U.S. 609 [14 L.Ed.2d 106, 85 S.Ct. 1229] [Griffin; holding prosecutorial comment on defendant’s failure to testify a violation of defendant’s rights under Fifth Amendment], for the proposition that the “accelerated disclosure” under

section 1054.3 violates the self-incrimination clause. (See dis. opn. by Broussard, J., post, pp. 403-404.) These cases, dealing with the special component of the Fifth Amendment protecting an accused’s choice of whether or not to testify, are inapposite to the situation we face here. The new discovery

chapter does not affect, directly or indirectly, defendant’s decision to take the stand.

Section 1054.3 applies only to witnesses “other than the defendant.” Justice Broussard’s reliance on Brooks and Griffin is therefore misplaced. We also note that the language Justice Broussard quotes from Estelle v.

Smith (1981) 451 U.S. 454, 462 [68 L.Ed.2d 359, 368, 101 S.Ct. 1866], eloquently supports our analysis: “The essence of this basic constitutional principle is ‘the requirement that the State which proposes to convict and punish an individual produce the evidence against him by the independent labor of its officers, not by the simple, cruel expedient of forcing it from his own lips.’ ” (See dis. opn. by Broussard, J., post, p. 405, italics omitted and added.) We note that the high court’s holding in Nobles that statements of such third persons are outside the scope of the self-incrimination clause is no less applicable to the statements of defense witnesses than it is to the statements of prosecution witnesses in the hands of the defense, as was the situation in Nobles.

In either case, such statements are of “third parties [to be] called as witnesses at trial,” rather than defendant’s “personal communications.” (Nobles, supra, 422 U.S. 225, 234 [45 L.Ed.2d 141, 151].) As support for his reading of Nobles, petitioner cites Middleton v. United States (D.C. 1979) 401 A.2d 109; United States v. Felt (D.D.C. 1980) 502 F.Supp. 71; and United States v. Layton (N.D.Cal. 1981) 90 F.R.D. 520. Petitioner misreads these cases, none of which interprets the self-incrimination clause analysis of Nobles.

In determining whether the compelled discovery of statements of defense witnesses implicates the self-incrimination clause, we have thus far focused on the materials actually disclosed. We also note, however, that the act of handing over the statements of defense witnesses to the prosecutor does not implicate the privilege. This act is not “testimonial or communicative in nature" because the act itself does not “reveal, directly or indirectly, [defendant’s] knowledge of facts relating him to the offense or . . . [require defendant] to share his thoughts and beliefs with the Government.” (Doe v.

United States, supra, 487 U.S. 201, 213 [101 L.Ed.2d 184, 199], italics added.) In dissent, Justice Mosk incorrectly argues our

interpretation of

article I,

section 30(

c) as removing the Prudhomme roadblock renders

article I,

section 30(

c) redundant to

section 3 of Proposition 115 (“[T]he rights of a defendant... to due process of law . . . [and] to not be compelled to be a witness against himself or herself . . . shall be construed by the courts of this state in a manner consistent with the Constitution of the United States. . . .”), invalidated by our decision in Raven, supra, 52 Cal.3d 336. (See dis. opn. by Mosk, J., post, p. 399.) Although overlapping to some extent, the two provisions are by no means entirely redundant.

Section 3 of Proposition 115 clearly was written much more broadly than the narrowly tailored amendment of the state Constitution effected by the addition of

article I,

section 30(c). More important,

article I,

section 30(

c) does what

section 3 of Proposition 115 never intended to do: it provides the people of the state of California with a right to reciprocal discovery in criminal cases to parallel the federal constitutional right of criminal defendants under Wardius v. Oregon (1973) 412 U.S. 470 [37 L.Ed.2d 82, 93 S.Ct. 2208].

Section 1054.1 provides, “The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies: [|] (

a) The names and addresses of persons the prosecutor intends to call as witnesses at trial, [f] (

b) Statements of all defendants. [1] (

c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged. H] (

d) The existence of a felony conviction of any material witness whose credibility is likely to be critical to the outcome of the trial. H] (

e) Any exculpatory evidence. [1] (

f) Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at the trial, including any reports or statements of experts made in conjunction with the case, including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the prosecutor intends to offer in evidence at the trial." The Ohio Supreme Court defined the requirement that the prosecution disclose the witnesses it “intends to call at trial” as including “all witnesses it reasonably anticipates it is likely to call. . . .” (State v.

Howard, supra, 383 N.E.2d 912, 915.) We adopt this definition for purposes of interpreting the requirements of the new discovery chapter.

We note that on both his informal and formal motions for discovery, the district attorney included a provision stating it would voluntarily furnish defendant with “All evidence possessed or obtained by the prosecution that impeaches or corroborates defense materials . . . .” Such a voluntary promise, however, is apart from the obligations created by the new discovery chapter, and is therefore not relevant to a facial challenge of the constitutionality of the provisions enacted by Proposition 115. The relevant passages in Wardius read: “Oregon grants no discovery rights to criminal defendants ....

More significantly, Oregon, unlike Florida, has no provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense . . . . [W]hile conceding that Oregon law fails to provide for reciprocal discovery on its face, the State contends that if petitioner had given notice of his alibi defense, the state courts might have read the Oregon statute as requiring the State to give the petitioner the names and addresses of state witnesses used to refute the alibi defense.” (412 U.S. at pp. 475-476 [37 L.Ed.2d at pp. 87-88], italics added.) We note the near mirror-image symmetry under California’s new discovery chapter.

Following disclosure of the prosecution’s witnesses, on demand the defense must disclose only the witnesses (and their statements) it intends to call in refutation of the prosecution’s case, rather than all the evidence developed by the defense in refutation. (See §§ 1054.1, 1054.3.) Thus, the defense is not required to disclose any statements it obtains from prosecution witnesses that it may use to refute the prosecution’s case during cross-examination. Were this otherwise, we would be presented with a significant issue of reciprocity. Petitioner also asserts the new discovery

chapter violates the due process clause by requiring disclosure of only that favorable evidence in the possession of the prosecutor, or known by the prosecutor to be in the possession of the investigating agencies, rather than all favorable evidence “within the control of law enforcement.” (United States v. Hsieh Hui Mei Chen (9th Cir. 1985) 754 F.2d 817, 824.) This argument merely goes to the scope of the Brady duties of prosecutors and, as such, is also both outside, and independent of, any statutory discovery scheme. In support of his reading of Nobles, petitioner cites Middleton v.

United States, supra, 401 A.2d 109. We are unpersuaded by Middleton as it makes no mention of the high court’s statement that waiver was not the sole basis for rejecting the Sixth Amendment challenge. Petitioner also cites two federal cases, United States v. Felt, supra, 502 F.Supp. 71, and United States v. Layton, supra, 90 F.R.D. 520, for the same proposition. Petitioner misreads the federal cases.

Neither stands for the proposition that Nobles was based solely on a theory of waiver or that compelled disclosure of statements of defense witnesses prior to trial denies a defendant the effective assistance of counsel guaranteed by the Sixth Amendment. Petitioner also cites dictum in People v.

Collie (1981) 30 Cal.3d 43,55 [177 Cal.Rptr. 458, 634 P.2d 534, 23 A.L.R.4th 776], that if discovery of a defense investigator’s report of interviews of defense witnesses is allowed, “defendant’s constitutional right to assistance of counsel is potentially threatened.” (Italics added.) After being squarely presented with the issue, we find no threat to the effective assistance of counsel.

In dissent, Justice Broussard attempts to distinguish Nobles by pointing out that there the trial court’s discovery order was “limited” in that it only reached “the relevant portion of the investigator’s report. . . .” (See dis. opn. by Broussard, J., post, p. 408, italics in original.) The distinction fails;

section 1054.3 similarly limits discovery to only the “relevant written or recorded statements” of witnesses. (Italics added.) Justice Kennard asserts in her concurring opinion that we “leap” to this conclusion. (See cone. opn. by Kennard, J., post, p. 384.) To the contrary, our analysis follows our conclusion in Greyhound, supra, 56 Cal.2d. 355, that the Hickman work product doctrine is not rooted in the federal Constitution.

Justice Kennard’s assertion that the prosecution may use evidence gained through discovery only in rebuttal is premised on her view that in criminal cases the work product doctrine is grounded in the right to counsel clause. (See conc. opn. by Kennard, J., post, p. 384.) However, the only authority for this novel proposition is the assertion that the high court “strongly hinted” to this effect in Nobles, supra, 422 U.S. 225. If there is any such hint, it must not be so strong for we cannot find it.

Moreover, we find untenable the proposition that the work product doctrine, created by the Supreme Court in a civil case, is in actuality founded in the right to counsel clause applicable only to criminal defendants. We note, however, that

section 1054.6 expressly limits the definition of “work product” in criminal cases to “core” work product, that is, any writing reflecting “an attorney’s impressions, conclusions, opinions, or legal research or theories.” Thus, the qualified protection of certain materials under Code of Civil Procedure

section 2018, subdivision (b), applicable in civil cases, is no longer available in criminal cases. The more recent statute limiting the definition of work product in criminal cases carves out an exception to the older work product rule applicable to civil and criminal cases alike. (See Estate of Kramme (1978) 20 Cal.3d 567 [143 Cal.Rptr. 542, 573 P.2d 1369].) Penal Code

section 1054.7 limits “good cause” to “threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.” We note that petitioner requested an ex parte in camera hearing on the basis that the self-incrimination clause would be violated by disclosing the name and address of a witness whose identity the defense learned directly from petitioner. The trial court properly rejected petitioner’s request.

The court has inherent discretion to conduct in camera hearings to determine objections to disclosure based on asserted privileges. (City of Alhambra v. Superior Court, supra, 205 Cal.App.3d 1118,1130-1131.) The trial court properly reasoned that even if petitioner could make a showing in camera to this effect, the self-incrimination clause would not bar compelled discovery of the identity of the witness, given that petitioner intended to call that witness later at trial. (Williams, supra, 399 U.S. 78, 81-82 [26 L.Ed.2d 446, 449-450].)