Filed 8/19/21 Harrison v. Superior Court CA4/1

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME 

COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DAVID SCOTT HARRISON,

Petitioner,

v.

THE SUPERIOR COURT OF

SAN DIEGO COUNTY,

Respondent;

 D077854

 (San Diego County

 Super. Ct. No. CRN16848)

THE PEOPLE,

Real Party in Interest.

ORIGINAL PROCEEDINGS in mandate. Harry M. Elias, Judge. 

Relief granted.

Barbara A. Smith, under appointment by the Court of Appeal, for 

Petitioner.
2

Summer Stephan, District Attorney, Mark A. Amador, Deputy District 

Attorney Chief, Linh Lam, Deputy District Attorney Asst. Chief, and 

Kimberly M. Roth, Deputy District Attorney, for Real Party in Interest.

I.

INTRODUCTION

Petitioner David Scott Harrison filed a petition for writ of mandate in 

this court in August 2020 seeking a writ of mandate directing the superior 

court to grant a motion that he filed pursuant to Penal Code section 1054.9 

(section 1054.9) in which he set forth 78 requests for discovery materials in 

anticipation of filing a habeas corpus petition. Section 1054.9 governs 

postconviction discovery with respect to habeas corpus proceedings and 

motions to vacate a judgment where a defendant has been convicted of a 

serious felony or a violent felony resulting in a sentence of 15 years or more. 

(§ 1054.9, subd. (a).) The statute requires that, upon a showing of good faith 

but unsuccessful efforts to obtain discovery materials from trial counsel, a 

defendant “be provided reasonable access to any of the materials described in 

subdivision (c)” of section 1054.9. Subdivision (c) defines “ ‘discovery 

materials’ ” as “materials in the possession of the prosecution and law 

enforcement authorities to which the same defendant would have been 

entitled at time of trial.” (§ 1054.9, subds. (a), (c).)

Harrison, who was convicted of murdering his former wife in 1990 and 

is currently serving a sentence of more than 25 years to life for that 

conviction, filed the section 1054.9 motion seeking postconviction discovery in 

May 2020. The trial court denied Harrison’s motion in full without 

addressing the individual requests.

After receiving Harrison’s petition for writ of mandate, this court 

initially summarily denied it in September 2020. Harrison then filed a 
3

petition for writ of mandate in the Supreme Court. On December 16, 2020, 

the Supreme Court granted Harrison’s petition and transferred the matter to 

this court “with directions to vacate [our] order denying the petition for writ 

of mandate and to issue an alternative writ directing the San Diego County 

Superior Court to reconsider petitioner’s motion for post-conviction discovery 

under Penal Code section 1054.9 and to grant any requests contained therein 

seeking materials to which he is entitled under the statute, or else to show 

cause before the Court of Appeal why it has not done so.”

After the Supreme Court transferred the matter to this court, we 

vacated our summary denial order of September 2, 2020, and ordered the 

respondent, the San Diego County Superior Court, to reconsider Harrison’s 

section 1054.9 motion and grant any requests for materials to which he is 

entitled under the statute, or to show cause before our court as to why it has 

not done so. We ordered the San Diego County Superior Court to notify our 

court within 30 days of the date of our order if it chose to comply with the 

first alternative. We did not hear from the Superior Court within 30 days of 

our order. We therefore issued an order to show cause (OSC) and specified a 

briefing schedule for the return and reply.

After receiving a return to the OSC from real party in interest, the 

People, as well as a reply filed by Harrison’s appointed counsel, we now 

consider whether the trial court should be directed to reconsider Harrison’s 

motion for postconviction discovery under Penal Code section 1054.9 and to 

grant requests for materials to which Harrison is entitled.

We conclude that a peremptory writ of mandate shall issue, directing 

the trial court to vacate the order denying petitioner’s motion for 

postconviction discovery under section 1054.9 as to certain of Harrison’s 78 

requests for materials, which we identify by number in our discussion 
4

section. As we explain, certain of the requests lack sufficient specificity, and 

the trial court need not reconsider those requests. However, pursuant to our 

peremptory writ of mandate, the trial court is to reconsider the remainder of 

the discovery requests, and is to order disclosure of those materials, if any, to 

which Harrison demonstrates he is entitled under section 1054.9.

II.

BACKGROUND

Harrison was found guilty of first degree murder for killing his former 

wife after a bench trial in March of 1990. The trial court also found true the 

allegation that Harrison personally used a knife in the commission of the 

crime. The following May, the court sentenced Harrison to a term of 25 years 

to life, with a consecutive one-year enhancement for his personal use of a 

knife. According to Harrison’s petition, his trial attorney “died not long after 

Harrison’s 1990 conviction.”

Harrison directly appealed from the judgment of conviction. He alleged 

insufficiency of the evidence, ineffective assistance of counsel, and prejudicial 

pre-indictment delay. This court affirmed the judgment of conviction on 

June 30, 1992. (People v. Harrison (June 30, 1992, D012506) [nonpub. opn.].)

In the intervening years, Harrison has filed six petitions for writ of 

habeas corpus based on various grounds, including claims that newly 

discovered evidence established his innocence. Four of the petitions were 

filed in California state courts and the other two were filed in federal courts. 

None of the petitions has been found to have merit. Harrison filed his most 

recent petition for writ of habeas corpus in the United States District Court 

for the Southern District of California, which denied that petition on April 13, 

2020, based on the gatekeeper provision; Harrison had failed to obtain proper 
5

authorization from the Court of Appeals to file a successive petition after the 

2001 denial of his prior petition on the merits.

Prior to January 1, 2019, section 1054.9’s provisions applied only to 

inmates with sentences of death or life imprisonment without the possibility 

of parole. (See Stats. 2002, ch. 1105, § 1, enacting Sen. Bill No. 1391 (2001-

2002 Reg. Sess.) As of January 1, 2019, section 1054.9 was amended to 

permit inmates who have been sentenced to 15 years or more for a serious or 

violent felony to seek postconviction discovery. Harrison filed a motion in the 

San Diego County Superior Court on May 28, 2020, seeking postconviction 

discovery pursuant to section 1054.9. Harrison listed 78 requests for 

materials. His requests cover a broad range of topics and materials relating 

to various persons involved in the investigation of his ex-wife’s murder, 

persons involved in the trial, and even persons who were not involved in the 

investigation or trial.1 The People filed a written opposition to Harrison’s 

1 We provide a random sampling of some of the 78 different discovery 

requests that Harrison set forth in his motion, with formatting in the 

original, to illustrate the breadth and variety of the requests at issue:

“1. discovery orders and discovery minute order issued by trial judge 

David B. Moon (‘Moon’)[.]”

“5. personnel files on Larry A. Burns (both state and federal) and 

investigative officers, and law enforcement persons, that in any way suggest 

the suppression, tampering, creation, fabrication, concealment or alteration 

of evidence, or the coercion of persons, suspect, non-suspects, who might have 

been expected to testify in any legal proceeding[.]”

“6. Coroner-Medical Examiner autopsy reports[.]”

“10. that Harrison was prosecuted for the murder as an ‘expedient[.]”

“14. of law enforcement efforts to connect Harrison directly in the 

suicide of David Johnson[.]”

“20. of fingerprints collected from the scene of the murder[.]”
6

motion. The trial court issued an order denying Harrison’s motion, in full, on 

July 6, 2020. The court did not address the individual requests in its order.

On August 27, 2020, Harrison filed his petition for writ of mandate in 

this court, seeking an order directing the trial court to grant his motion for 

postconviction discovery. Among other contentions in his petition, Harrison 

“24. of comparisons conducted between the footprints collected from 

the scene of the murder to the footprints of Harrison[.]”

“26. Bill of Particulars of how exactly the murder was committed[.]”

“35. that David Johnson could not have committed the murder[.]”

“39. of including, but not limited to, letters, agreements, questions, test 

results, opinions, graphs, and the entire file and records, of the polygraph test 

taken by Harrison concerning the murder[.]”

“43. lists and inventories of evidence collected from the crime scene 

that maybe [s]ubjected to DNA testing[.]”

“44. test results from all DNA testing of evidence collected from the 

crime scene, the victim and victim’s clothing[.]”

“50. of the understanding of every witness that testified for the 

prosecution at the murder trial of Harrison, that no criminal charges would 

be brought against the witness in exchange for testimony[.]”

“62. of pre-and post-conviction evidence that is exculpatory to 

Harrison, materials within the meaning of Brady v. Maryland, 373 U.S. 83 

(1963) and its progeny, any favorable evidence, evidence wither favorable or 

material to guilty or punishment[.]”

“66. of [i]nducements, payments, compensation, considerations, etc. 

provided to each witness who testified for the prosecution at the murder trial 

against Harrison[.]”

“68. investigative and interview reports of Dee Dupree[.]”

“74. of false statements made to law enforcement by Gary Jenkins[.]”

“78. that would assist Harrison to present a prima facie case for 

habeas relief.”
7

asserted that he was unable to contact his trial attorney for assistance in 

obtaining his file “due to [trial counsel’s] passing decades ago.” Harrison 

stated that he had sought help from the San Diego Innocence Project to try to 

obtain some discovery before filing his motion pursuant to section 1054.9.2 

As indicated, this court summarily denied the petition, and Harrison filed a 

petition for writ of mandate in the Supreme Court. The Supreme Court 

granted Harrison’s petition and transferred the matter to this court with 

directions to vacate our order denying Harrison’s petition for writ of mandate. 

We did so and provided the trial court with the previously-noted options as to 

how it should proceed: the court could reconsider Harrison’s section 1054.9 

motion and grant any requests for materials to which he is entitled under the 

statute, and notify this court of this choice, or show cause before our court as 

to why it has not done so. The trial court did not notify this court that it was 

choosing the former option. We therefore issued an OSC as to why Harrison’s 

petition for writ of mandate should not be granted, and we appointed counsel 

to represent Harrison in this writ proceeding.

The People filed a return to the OSC, and Harrison filed a reply.

III.

DISCUSSION

Prior to January 1, 2019, section 1054.9 provided a limited statutory 

right to postconviction discovery for defendants sentenced to death or to life 

in prison without the possibility of parole. (Barnett v. Superior Court (2010) 

50 Cal.4th 890, 897 (Barnett); Stats. 2002, ch. 1105, § 1, enacting Sen. Bill 

No. 1391 (2001-2002 Reg. Sess.).) As noted, as of January 1, 2019, section 

1054.9 was amended to permit additional defendants, including those 

2 It is not clear why Harrison believed the California Innocence Project 

could assist him in obtaining the records from his case.
8

sentenced to a term of 15 years or more, to seek postconviction discovery. 

Section 1054.9 currently provides:

“(a) In a case in which a defendant is or has ever been 

convicted of a serious felony or a violent felony resulting in 

a sentence of 15 years or more, upon the prosecution of a 

postconviction writ of habeas corpus or a motion to vacate a 

judgment, or in preparation to file that writ or motion, and 

on a showing that good faith efforts to obtain discovery 

materials from trial counsel were made and were 

unsuccessful, the court shall, except as provided in 

subdivision (b) or (d), order that the defendant be provided 

reasonable access to any of the materials described in 

subdivision (c).

“(b) Notwithstanding subdivision (a), in a case in which a 

sentence other than death or life in prison without the 

possibility of parole is or has ever been imposed, if a court 

has entered a previous order granting discovery pursuant 

to this section, a subsequent order granting discovery 

pursuant to subdivision (a) may be made in the court’s 

discretion. A request for discovery subject to this 

subdivision shall include a statement by the person 

requesting discovery as to whether that person has 

previously been granted an order for discovery pursuant to 

this section.

“(c) For purposes of this section, ‘discovery materials’

means materials in the possession of the prosecution and 

law enforcement authorities to which the same defendant 

would have been entitled at time of trial.

“(d) In response to a writ or motion satisfying the 

conditions in subdivision (a), the court may order that the 

defendant be provided access to physical evidence for the 

purpose of examination, including, but not limited to, any 

physical evidence relating to the investigation, arrest, and 

prosecution of the defendant only upon a showing that 

there is good cause to believe that access to physical 

evidence is reasonably necessary to the defendant’s effort to 

obtain relief. The procedures for obtaining access to 
9

physical evidence for purposes of postconviction DNA 

testing are provided in Section 1405, and this section does 

not provide an alternative means of access to physical 

evidence for those purposes.

“(e) The actual costs of examination or copying pursuant to 

this section shall be borne or reimbursed by the defendant.

“(f) This section does not require the retention of any 

discovery materials not otherwise required by law or court 

order.

“(g) In criminal matters involving a conviction for a serious 

or a violent felony resulting in a sentence of 15 years or 

more, trial counsel shall retain a copy of a former client’s 

files for the term of that client’s imprisonment. An 

electronic copy is sufficient only if every item in the file is 

digitally copied and preserved.

“(h) As used in this section, a ‘serious felony’ is a conviction 

of a felony enumerated in subdivision (c) of Section 1192.7.

“(i) As used in this section, a ‘violent felony’ is a conviction 

of a felony enumerated in subdivision (c) of Section 667.5.

“(j) Subdivision (g) only applies prospectively, commencing 

January 1, 2019.”

In interpreting section 1054.9, the Supreme Court has clarified that the 

statute requires a trial court to order the production of materials that the 

defendant can demonstrate fall into one of four categories: “[W]e interpret 

section 1054.9 to require the trial court, on a proper showing of a good faith 

effort to obtain the materials from trial counsel, to order discovery of specific

materials currently in the possession of the prosecution or law enforcement 

authorities involved in the investigation or prosecution of the case that the 

defendant can show either (1) the prosecution did provide at time of trial but 

have since become lost to the defendant; (2) the prosecution should have 
10

provided at time of trial because they came within the scope of a discovery 

order the trial court actually issued at that time, a statutory duty to provide 

discovery, or the constitutional duty to disclose exculpatory evidence; (3) the 

prosecution should have provided at time of trial because the defense 

specifically requested them at that time and was entitled to receive them; or 

(4) the prosecution had no obligation to provide at time of trial absent a 

specific defense request, but to which the defendant would have been entitled 

at time of trial had the defendant specifically requested them.” (In re Steele

(2004) 32 Cal.4th 682, 697 (Steele).)

As Steele makes clear, section 1054.9 is not merely a “ ‘file

reconstruction statute.’ ” (Steele, supra, 32 Cal.4th at p. 693.) However, it 

provides for “only limited discovery” and “does not allow ‘free-floating’ 

discovery asking for virtually anything the prosecution possesses.” (Id. at

p. 695; see Barnett, supra, 50 Cal.4th at p. 899.) The People are under no 

obligation to “search for or obtain materials not currently possessed.” (Steele, 

at p. 695.)

Moreover, “[t]he discovery obligation . . . does not extend to all law 

enforcement authorities everywhere in the world but . . . only to law 

enforcement authorities who were involved in the investigation or 

prosecution of the case.” (Steele, supra, 32 Cal.4th at p. 696.) In other words, 

Penal Code “[s]ection 1054.9, subdivision (b), should not be read as creating a 

broader postconviction discovery right” than was operative at the time of 

trial. (Steele, at p. 696.)

A. Harrison has stated a prima facie case that he is seeking the discovery 

as an aid in preparing a petition for habeas corpus

The People initially contend that Harrison is not entitled to a writ of 

mandate from this court because he has not sufficiently demonstrated that he 
11

is seeking the discovery to assist in preparing a petition for habeas corpus. 

In his motion in the trial court, Harrison asserted that the discovery 

materials that he is requesting “are necessary to facilitate the preparation of 

a post-conviction writ of habeas corpus; to expose constitutional violations 

including, but not limited to, bias by the trial judge against Harrison and in 

favor of law enforcement, withholding of material evidence favorable to 

Harrison or evidence to impeach witnesses for law enforcement, covert 

questioning of Harrison while he was represented by counsel, of Harrison’s 

innocence, of admissions by law enforcement to any person that Harrison was 

prosecuted as an ‘expedient’ and it was ‘always believed’ Harrison was 

innocent of the murder, of contacts with personnel of the California Western 

School of Law, California Innocence Project, including but not limited to, 

Alissa Bjerkhoel and Daniel DeSaegher in any way related to Harrison or his 

case, prosecution, conviction and guilt or innocence, that Harrison hired any 

perpetrator(s) of the murder, or that he in any way conspired with any other 

person(s) in committing the murder, forensic evidence of Harrison’s innocence 

or the guilt of another, law enforcement’s corruption of the defense 

investigator, rewards, benefits, promises or inducements made to actual or 

potential witnesses for law enforcement, warnings, coercion or threats made 

to any actual or potential witnesses for law enforcement or for the defense 

either to compel testimony or not to testify . . . to name just a few of the 

constitutional issues to be raised in Harrison’ post-conviction writ of habeas 

corpus.”

The People argue that Harrison’s assertion “fail[s] to adequately 

establish facts justifying a seventh habeas petition,” and characterize it as 

“simply a conclusory statement.” The People argue that Harrison must 

“articulate a cogent theory that would entitle [him] to some form of 
12

postconviction relief” in order to be entitled to discovery under section 1054.9, 

because any petition that he would file at this point would be a successive 

habeas petition.

There is nothing in section 1054.9 that indicates that when a defendant 

seeks postconviction discovery in preparation for filing a successive habeas 

petition, as opposed to an initial habeas petition, the defendant must make a 

particularized showing, beyond that he seeks the discovery in preparation for 

a habeas petition. (See Steele, supra, 32 Cal.4th at p. 691 [an otherwise 

eligible defendant “is entitled to seek discovery [under section 1054.9] if he or 

she is preparing to file the petition,” and not simply at the time of filing a 

petition or after a petition has already been filed].) Nor does the statute 

suggest that the defendant must demonstrate to the trial court that the 

anticipated habeas petition will not be rejected on procedural grounds, such 

as that it is a successive petition that merely repeats prior contentions, or 

that it is untimely.

The People also contend that Harrison should be prevented from 

obtaining any of the postconviction discovery that he is seeking because he 

could have sought that discovery as of January 1, 2019, rather than

January 1, 2020, which is the date on which Harrison incorrectly asserts he 

became eligible to request postconviction discovery. The People imply that 

because Harrison filed “three of his six habeas petitions after January 1, 

2019,” he could have made his request for discovery with respect to those 

previous habeas petitions, and his motion is therefore untimely. In Catlin v. 

Superior Court (2011) 51 Cal.4th 300, 307 (Catlin) the Supreme Court 

rejected the contention that a trial court may deny a section 1054.9 discovery 

request as untimely. The Catlin court noted that “the text of section 1054.9 

does not contain a timeliness requirement,” and it identified “[a]t least two 
13

possible reasons . . . why the Legislature chose not to allow a trial court to 

deny as untimely a section 1054.9 postconviction discovery motion.” (Ibid.) 

The Catlin court explained: “First, a petitioner who files an untimely habeas 

corpus petition may nonetheless be entitled to relief upon a showing ‘that a 

fundamental miscarriage of justice occurred as a result of the proceedings 

leading to conviction and/or sentence.’ (In re Clark [(1993)] 5 Cal.4th 

[750,] 797.) Thus, as long as the habeas corpus petitioner satisfies this test, 

an unreasonable delay in seeking section 1054.9 postconviction discovery will 

not bar relief. The possibility of such postconviction relief may have 

persuaded the Legislature that the consequences of an unreasonably delayed 

postconviction discovery motion should be determined as part of a court’s 

evaluation of the petitioner’s habeas corpus petition, and that a 

postconviction discovery motion (which seeks information that, the defendant 

hopes, will show that the defendant is entitled to habeas corpus relief) should 

not be denied as untimely. Second, the Legislature may have seen it as a 

waste of time and resources to have the motion’s timeliness litigated twice: 

once when the discovery motion itself is made, and again when the habeas 

corpus petition is adjudicated.” (Catlin, at p. 307.)

Given the fact that section 1054.9 imposes no timeliness requirement, 

we reject the People’s implied suggestion that the trial court need not engage 

in particularized consideration of Harrison’s discovery requests on their 

merits because Harrison waited too long after becoming eligible to file his 

motion and/or because he has filed previous habeas petitions after having 

become eligible, without seeking discovery in connection with those 

petitions.3 As the Catlin court noted, the trial court may consider the 

3 Our rejection of the People’s timeliness argument may raise a concern 

about the possibility of a flood of repeated or successive postconviction 
14

timeliness of any new habeas petition that Harrison files when that petition 

is adjudicated.

We conclude that neither of the People’s procedural arguments, i.e., 

that Harrison has not sufficiently demonstrated that he is seeking the 

discovery in preparation for the filing of a habeas petition or that his 

discovery motion under section 1054.9 is untimely, provides a basis for the 

trial court to decline to consider each of Harrison’s requests on their merits 

and determine whether he has established his entitlement to any of the 

requested materials.

B. The trial court may not deny all of Harrison’s requests on the ground that 

some of the requests seek discovery beyond file reconstruction and that 

Harrison has not made a sufficient showing that there is a reasonable 

basis to believe the requested materials actually exist

The People also argue that the trial court need not consider any of 

Harrison’s requests for postconviction discovery because he “failed to show a 

reasonable basis to believe the requested materials actually existed, as 

required by Barnett v. Superior Court, supra, 50 Cal.4th at p. 899.” The 

People assert that in Barnett, “the California Supreme Court held that 

discovery requests. The Catlin court considered the concern expressed by the 

appellate court majority in that case that “precluding a trial court’s denial of 

a postconviction discovery motion as untimely ‘would result in mischief,’ 

because ‘a defendant could file numerous section 1054.9 motions over a 

period of years and the trial court would be without power to deny the 

motions on the grounds that he or she had waited too long.’ ” (Catlin, supra, 

51 Cal.4th at pp. 307–308.) The Catlin court indicated that “a fear that 

petitioners will bombard the courts with successive or repeated discovery 

motions . . . is not a reason to deny such motions as untimely,” but left open 

the possibility that a trial court could “deny multiple discovery motions as 

successive.” (Id. at p. 308.) The postconviction discovery requests at issue in 

this case are Harrison’s first attempt to obtain discovery pursuant to section 

1054.9. Catlin thus counsels against rejecting his motion as untimely out of 

fear that it may not be his last.
15

‘section 1054.9 requires defendants who seek discovery beyond file 

reconstruction to show a reasonable basis to believe that other specific

materials actually exist.’ (Barnett, supra, 50 Cal.4th at p. 899.)” According to 

the People, Harrison “did not request file reconstruction at all” with respect 

to any of his 78 requests for discovery; as a result, they posit, he was required 

to show a reasonable basis for his belief that the materials that he requests 

actually exist, but did not do so.

In Barnett, the Supreme Court concluded that “[r]equiring defendants 

to show they have reason to believe specific materials actually exist does not 

place an onerous burden on them” because they “have access to the trial 

record and to the discovery materials the prosecution provided to the defense 

before trial,” or they “may obtain those materials either from trial counsel or 

through file reconstruction.” A defendant “could use these resources ‘to make 

the necessary showing.’ ” (Barnett, supra, 50 Cal.4th at p. 900.) An example

of such a showing would be “ ‘if a witness testifies about a particular report 

that the petitioner does not possess, the petitioner would have sufficient 

evidence to justify a request for that report under section 1054.9’ ” and a 

petitioner could also “ ‘seek access to a report he or she does not possess that 

is cross-referenced in a police report possessed by the petitioner,’ ” or, “ ‘if 

evidence in the record indicates that a particular witness was interviewed 

three times and the petitioner has reports documenting only two interviews, 

that petitioner could make the necessary showing, based on the record, that a 

third report likely exists.’ ” (Barnett, at p. 900.) The Barnett court 

summarized the rule as follows: “[T]o be entitled to receive discovery beyond 

merely recovering items that the prosecutor had provided to defense counsel 

before trial, defendants must show they have a reasonable basis to believe 

that the specific materials they seek actually exist,” and that “a reasonable 
16

basis to believe that the prosecution had possessed the materials in the past 

would also provide a reasonable basis to believe the prosecution still 

possesses the materials.” (Id. at p. 901.)

The People do not identify which of Harrison’s 78 requests they believe 

go beyond a request for file reconstruction. Instead, the People appear to 

suggest that none of Harrison’s 78 requests seeks to reconstruct defense 

counsel’s file. However, our review of Harrison’s requests demonstrates that 

some of the requests appear, at least on their face, to be requests for 

materials that would permit Harrison to reconstruct his counsel’s trial file, 

or, if they were not in the trial file, they are materials that Harrison would 

have a reasonable basis to believe exist. For example, Harrison requests 

items such as “Coroner-Medical Examiner autopsy reports,” and discovery 

documenting “fingerprints collected from the scene of the murder.” These 

requests appear to seek materials that were likely to have been produced to 

Harrison’s defense attorney as discovery prior to trial. One could therefore 

reasonably expect that such materials would be found in trial counsel’s file,

or, if not, they are nevertheless the type of materials that are likely to exist 

and to be in the possession of the prosecution.4 To the extent that the People 

have not demonstrated that all of Harrison’s requests seek discovery 

materials that go beyond file reconstruction, and because they have not 

identified which of the 78 items they believe do not reasonably constitute 

requests that seek to reconstruct trial counsel’s file, we reject this ground as 

4 We do not point out these two requests to suggest that they are the only 

requests that may seek materials that were in the defense files or for which 

there appears to be a basis for believing they exist. Rather, we cite these 

requests to demonstrate that the People’s contention that none of Harrison’s 

requests can be viewed as file reconstruction requests appears to be 

inaccurate.
17

a basis for the trial court to deny Harrison’s motion in its entirety, without 

consideration of each individual request. On remand, the People may object 

to the disclosure of certain materials on the ground that a particular 

discovery request seeks materials that go beyond file reconstruction, and that 

with respect to those materials, Harrison has failed “to show [he has] reason 

to believe [these] specific materials actually exist” (Barnett, supra, 50 Cal.4th 

at p. 900). Such objections must be addressed to the particular discovery 

request at issue; a blanket objection on this ground is insufficient to support 

the denial of Harrison’s motion under section 1054.9.

C. The trial court need not reconsider requests that are overbroad, vague, 

or that clearly do not pertain to discovery obtainable pursuant to 

section 1054.9

Finally, we consider the People’s contention that the trial court 

properly declined to order disclosure of the materials that Harrison has 

requested because his requests fail to identify the materials that he is 

seeking with sufficient particularity. Specifically, the People argue that 

discovery requests 7–9, 12, 16–19, 27–37, 40–41, 45–54, 56–58, 62–66, and 

71–78 “lack[ ] specificity and [a]re overbroad,” and constitute what is, in 

effect, a fishing expedition. As the People note, section 1054.9 “does not allow 

‘free-floating’ discovery asking for virtually anything the prosecution 

possesses.” (Steele, supra, 32 Cal.4th at p. 695.) Rather, the statute, 

“provides only for specific discovery and not the proverbial ‘fishing expedition’ 

for anything that might exist.” (Barnett, supra, 50 Cal.4th at p. 894, italics 

added.)

In response, Harrison’s appointed counsel appears to concede that the 

requests that the People identify as being insufficiently specific do indeed 

lack specificity and cannot reasonably be addressed; rather than disputing 

the lack of specificity of the identified requests, Harrison’s attorney suggests 
18

that because the People did not list all 78 requests as lacking sufficient 

specificity, the People tacitly acknowledge that the remainder are sufficiently 

specific.5 We have reviewed the discovery requests itemized by the People, 

and we agree that they are vague and often overbroad; we therefore accept 

Harrison’s implied concession that the enumerated requests are insufficiently 

specific to require that the People produce materials in response to them. On 

remand, the trial court need not reconsider requests 7–9, 12, 16–19, 27–37, 

40–41, 45–54, 56–58, 62–66, and 71–78. The trial court shall reconsider 

whether Harrison is entitled to obtain discovery materials pursuant to 

requests 1–6, 10–11, 13–15, 20–26, 38–39, 42–44, 55, 59–61, and 67–70.6

In returning this matter to the trial court for further consideration of 

this narrowed set of discovery requests, we do not intend to instruct the trial 

court as to what kind of discovery order to make. Consistent with the 

Supreme Court’s instruction, we merely direct the trial court to reconsider

Harrison’s discovery requests that do not, as a matter of law, lack sufficient 

specificity.

5 In Harrison’s Reply to the People’s Return, appointed counsel does not 

dispute the lack of specificity of the items identified by the People, but 

instead states, “The District Attorney’s list indicates even the prosecutor 

could not deny some requests were sufficiently specific, i.e., Items 1-6, 10-11, 

13-15, 20-26, 38-39, 42-44, 55, 59-61, and 67-70, which constitute over a third 

of the requested items.” The items referenced by Harrison’s attorney are 

those items not mentioned by the People as lacking sufficient specificity.

6 We do not intend to suggest that the trial court may not find, upon 

further consideration of these requests, that one or more of the remaining 

requests are also impermissibly vague or overbroad. We simply require the 

trial court to make a particularized finding, as to each request, whether 

Harrison has demonstrated his entitlement to the requested discovery 

materials under section 1054.9.
19

IV.

DISPOSITION

Let a peremptory writ of mandate issue, directing the Superior Court of 

San Diego County to vacate the order denying in full Harrison’s request for 

postconviction discovery under section 1054.9. The court is directed to 

reconsider Harrison’s discovery requests 1–6, 10–11, 13–15, 20–26, 38–39, 

42–44, 55, 59–61, and 67–70, and to order disclosure of those materials to 

which Harrison has demonstrated he is entitled pursuant to section 1054.9. 

To the extent that the trial court orders disclosure and the parties are unable 

to reach an informal agreement on a reimbursement plan for any copying 

costs that may be incurred, the trial court is authorized to make an order on 

that issue, as well.

AARON, Acting P. J.

WE CONCUR:

IRION, J.

DO, J.