I dissent.
Despite its disclaimer, the majority sanctions the disclosure of defense strategies and Ayala’s attorneys’ work product to the prosecution. The prosecution has served notice that it intends to seek the death penalty against Ayala and further intends to use Ayala’s alleged murder of John Joe Casas as an aggravating circumstance supporting the death penalty. The only way that Ayala’s counsel can reasonably investigate and defend against this allegation is to subpoena records in the possession of the California Department of Corrections (CDC). To establish good cause for the subpoena Ayala’s counsel must set forth with specificity the importance of the records to the defense. The majority believes the attorneys’ work product can be adequately protected by deleting specific statements from counsel’s declaration. I disagree. The fact Ayala has subpoenaed these specific records reveals the defense’s thought process. The prosecution will obtain the records themselves as a result of the defense’s efforts.
The majority expresses concern that the nondisclosure order allows the defense to prevent a third party from voluntarily providing records that he would have otherwise turned over to the prosecution. There is nothing in the record to indicate the CDC had any intention of providing the subpoenaed records to the prosecution absent request. It is only the defense request for the documents that has triggered the CDC’s and the Attorney General’s interest in providing the records to the prosecution. Moreover, although I might be reluctant to prohibit a nongovernmental third party from voluntarily disclosing defense subpoenaed records to the prosecution, the special relationship between this third party and the prosecution gives rise to the need for special caution. The fact the District Attorney’s Office, the Attorney General’s Office, and the CDC are all government agencies, and in particular are associated with law enforcement, makes it clear the CDC and the Attorney General’s Oifice will serve as a conduit to the prosecution absent court protection. Ayala’s counsel are therefore placed in the intolerable position where they must either forego seeking records necessary to adequately investigate the prosecution’s allegations and to prepare Ayala’s defense or they must throw their investigation open to prosecutorial scrutiny.
A trial court has wide latitude in fashioning discovery orders that will protect the interests of the parties involved and further the administration of justice. (See, e.g., Millaud v. Superior Court (1986) 182 Cal.App.3d 471, *1099475-476 [227 Cal.Rptr. 222].) Its orders should be vacated only upon a showing of abuse of discretion. (See Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 321 [204 Cal.Rptr. 165, 682 P.2d 360].) The nondisclosure order does not prevent the prosecution from actively pursuing its own discovery and obtaining exactly the same records from the CDC that are sought by the defense. What it does prevent is prosecutorial access to the defense discovery. The order is well-reasoned and protects the interests of both parties. It does not constitute an abuse of discretion. I would deny the petition.