Filed 2/14/17 (unmodified opn. attached) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ANTHONY McGINNIS, Petitioner,

v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. A149006

(Alameda County Super. Ct. No. 127033)

ORDER MODIFYING OPINION; NO CHANGE IN JUDGMENT

THE COURT:

The opinion filed herein on January 27, 2017, is modified as follows:

On page 3, footnote 2, in the last sentence after the word “counsel,” add the words “absent an order to show cause,” and after the Government Code citation add “ In re Clark (1993) 5 Cal.4th 750, 780” so that the sentence reads:

Any right to habeas counsel , absent an order to show cause, is purely statutory and, in California, the right extends only to indigen t prisoners sentenced to death. (Gov. Code, § 68662; In re Clark (1993) 5 Cal.4th 750, 780.)

There is no change in the judgment.

Date: __________________________ Acting P.J.Trial court: Alameda County Superior Court

Trial judge: Honorable Larry Goodman

Counsel for petitioner: L. Richard Braucher, under appointment by the Court of Appeal.

Counsel for respondent: No appearance.

Counsel for real party in interest: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, and Alisha M. Carlile, Deputy Attorney General.

A1490061

Filed 1/27/17 (unmodified version) CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

ANTHONY McGINNIS, Petitioner,

v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; THE PEOPLE, Real Party in Interest. A149006

(Alameda County Super. Ct. No. 127033)

Penal Code 1 section 1054.9 authorizes postconviction discovery of prosecutorial

documents in order to prepare a writ of habeas corpus for an inmate sentenced to death or life imprisonment

, but requ ires the cost of copying those documents to be “borne or reimbursed by the defendant.” Pursuant to a directive from the California Supreme Court,

we here determine whether a motion for postconviction discovery may be denied solely

due to a defendant‟s inab ility to pay in advance for copies of the discovery materials

. As we shall explain, such discovery may not be denied on that basis . Where, as here, a moving party demonstrates entitlement to postconviction discovery but asserts he is unable to pay copy ing costs, the court must determine if defendant is indigent as claimed
and, if so, fashion a reimbursement plan or other means to permit the discovery to proceed

.

1 All further statutory references are to the Penal Code except as noted.2 Statement of Facts and Procedural Background
In 1998, petitioner was convicted of two counts of first degree murder with a finding of multiple

- murder special circumstance. ( § § 187, 190.2, subd. (a)(3).) The trial court sentenced petitioner to life in prison without possibility of parole (LWOP). This court affirmed his conviction ( People v. McGinnis (Dec. 15, 2000, A084197) [nonpub. opn.]) and denied a subsequent petition for a writ of habeas corpus ( In re McGinnis (Jan. 11, 2007, A116321) )

. At issue here are petitioner‟s efforts to obtain information and documents in support of another habeas petiti on. O n February 25, 2015, he filed in the Alameda County S uperior Court a motion for post conviction production of “discovery materials ”

in possession of the Alameda County District Attorney , including investigative reports on the analysis of physical evide nce, witness interviews, and photographs introduced in

evidence at trial . (§ 1054.9.) Defendant stated that he tried to obtain the documents from his trial counsel but received no reply to his inquiries. On May 6, 2015, t he court denied

the motion without prejudice upon finding that defendant had not made good faith efforts

to obtain the documents without court intervention . The court determined that petitioner‟s

trial counsel was deceased but ruled that petitioner should have ask ed his appellate
attorney o r the district a ttorney for the documents before filing the motion

. O n August 21, 2015, petitioner filed another discovery motion to which he attached a letter from appellate counsel saying she did not have the materials he sought

and a letter to the dist rict a ttorney requesting the documents

. On August 28, 2015 , with the motion pending, the district a ttorney wrote to petitioner agreeing to address his request and stating that he would be required to pay for the cost of copying any responsive documents. On September 30, 2015, petitioner filed a motion for appointment of counsel and waiver of copying costs for postconviction discovery. Petitioner filed a declaration attesting that he is “ indigent, ” “without the financial resou r ces to retain private counsel” or “the financial ability to pay for copies of the production of post

conviction discovery as requested” of the district a ttorney. Petitioner averred: “I currently3

have a prison job and make approximately seven doll ars ($7.00) a month after court

imposed r estitution is deducted from my pay.” On October 7, 2015, the court denied petitioner‟s disco very motion because the

district a ttorney agreed to produce responsive documents

. The court stated that defendant could renew the motion should it be necessary aft er he receives the documents. By separate order, the court denied petitioner‟s request for appointment of counsel and waiver of copy costs. 2 As to costs, the court found that the statute governing postconviction discovery requires copying costs be “borne o r reimbursed” by petitioner.
(§ 1054.9.) “There is no provision for a waiver of these fees, which are not copy fees to
the court, but to the district a ttorney.”

The district a ttorney wrote to petitioner on October 23, 2015 offering to produce the requeste d discovery and stating the copying costs to be $ 122.80. 3 Petitioner asked the

district a ttorney to waive costs and she declined in a letter dated December 10, 2015

. On March 17, 2016, petitioner moved ex parte for production of postconviction discovery

, stating his inability to pay for copies of the requested discovery

. T he court denied the motion on April 1, 2016. 4 Petitioner contends that he filed a renewed motion for discovery dated April 5, 2016, although the certified case file does not contain the

2 The petition before us does not contest the court‟s order denying appointed counsel, and challenges only its order
on costs. T he United States C onstitution does not require appointment of counsel for the indigent in state habeas proceedings

. ( Pennsylvania v. Finley (1987) 481 U.S. 551, 559.) “[T] he right to appointed counsel extends to the first appeal of right, and no further. ” ( Ibid. ) Any right to habeas counsel is purely statutory and, in California, the right extends only to indigent prisoners sentenced to death. (Gov. Code, § 68662.)

3 The costs were itemized as follows: $13.40 for 130 pages of documents, $4.40 for copies of 44 photos, and $1 05 for witness interviews copied onto seven cassette tapes. The district a ttorney offered to produce the interviews on CDs at a cost of $210 rather than cassette tapes for $105, which would raise the total cost from $122.80 to $227.80.

4 The motion does no t appear in the record, only the order. The superior court clerk attests that the March 17, 2016 motion is not in the court file.4

m otion or an order relating to it

. 5 The renewed motion, a copy of which is attached to his petition for writ of mandate, states he is indigent and that conditioning postconviction discovery on advance payment of costs denies him due process and equal protec tion of

the law. Petitioner noted that the discovery statute allows for “reimbursement” of costs and proposed placing a lien on his prison trust account for incremental collection of 20 percent of money deposited in the account until all copying fees a re p aid to the district

a ttorney. (§ 1054.9.) P etitioner asserts the renewed motion was denied. Petitioner filed a petition for writ of mandate in this court, which we summarily

denied

. P etitioner then filed a petition for writ of mandate in the California Su preme Court seeking an order directing the superior court to provide postconviction discovery without advance payment of costs. T he high court refiled the petition as a petition for writ

of certiorari , gra n t ed it, and transferred it to this court with dire ctions to issue a writ of review to the superior court and to decide the following questions upon return of the writ: “(1) May a motion for postconviction discovery pursuant to Penal Code section 1054.9 be denied solely due to a defendant‟s inability to pa y? (2) May such a motion be summarily denied on that ground without a hearing? ” Pursuant to this directive , we issued a writ of review to the superior court directing it to certify the entire record of proceedings on petitioner‟s request for postconviction discovery and we appointed counsel to represent petitioner on the writ of review. This court has now received the superior court case file

,
t he return on the petition and petitioner‟s traverse.
Discussion Common law principles provide that a person seeki ng habeas corpus relief is not

entitled to court

- ordered discovery unless and until the court issue s an order to show

cause and thus determine s that the petition state s a prima facie case for relief. ( People v.
Gonzalez (1990) 51 Cal.3d 1179, 1255

- 1261 .) T hat rule was changed by statute , effective
2003, for persons sentenced to death or LWOP . ( In re Steele (2004) 32 Cal.4th 682, 690.)

5 The Attorney General does not address this discrepancy in the record. We shall presume that the renewed motion was filed in the superior court and denied , as petitioner alleges

.5

Section 1054.9, subdivision (a) provides: “Upon the prosecution of a postconviction writ of habeas corpus or a motion to va cate a judgment in a case in which a sentence of death or of life in prison without the possibility of parole has been imposed, and on a showing that good faith efforts to obtain discovery materials from trial counsel
were made and were unsuccessful, the c ourt shall, except as provided in subdivision (c) [which relates to physical evidence], order that the defendant be provided reasonable access to any of the materials described in subdivision (b).” Subdivision (b) provides: “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.” Pertinent here is subdivision (d), which provides: “ The

actual costs of examin ation or copying pursuant to this section shall be borne or reimbursed by the defendant. ” Petitioner argues that the superior court misinterpreted the statute to require payment of copy costs before discovery production rather than allowing him to reimbur se costs after receiving responsive documents. In his traverse, petitioner states h e “does not oppose reimbursement” and renews his offer to allow a lien against his prison trust fund to pay copy costs. The Attorney General is in agreement. She contends th at a criminal defendant must pay postconviction discovery costs but an indigent defendant may pay
those costs over time. The parties‟ positions are in accord with Davis v. Superior Court (2016) 1 Cal.App.5th 881. In Davis
, a LWOP inmate asserted that “ for cing him to pay for copies of postconviction discovery violates his right to equal protection under the law because it places him on different footing from wealthier inmates who can afford to pay for the discovery they request. ” ( Id. at p. 888.) The appell ate court, “ mindful that „ a court, when faced with an ambiguous statute that raises serious constitutional questions, should

endeavor to construe the statute in a manner which avoids any doubt concerning its validity ‟ ” ( ibid .), found no need to address co nstitutional concerns because section 1054.9, fairly read, “ does not require an inmate seeking postconviction discovery to pay in advance for copies of discovery ” ( i d. at p. 889 )

. The statute requires the costs of6

copying to be “ borne or reimbursed by the defendant. ” (§ 1054.9, subd. (d), italics added.) The court held that, pursuant to th e terms of the statute itself, one “ may not completely prohibit petitioner from receiving postconviction discovery without first paying for copies of what he receives. ” ( I d. at p. 889.) The court decline d to “ instruct the trial court as to exactly how to address the payment of costs by petitioner, as there are many ways in which an inmate may receive postconviction discovery without payi ng the copying costs in advance” and left to the trial court‟s discretion a manner of payment appropriate to the circumstances. ( Ibid. ) One possibility noted by the appellate court was

that “ the parties might agree that petitioner can pay costs over time using his prison wages or other funds to which he has access .” ( I bid .) Here, the parties are agreed that petitioner may receive the postconviction discovery he requested and reimburse copying costs over time from his prison wages. The trial court may, given the parties‟ stipulation, issue an order garnishing a portion of petitioner‟ s prison funds an d remitting the payment to the district a ttorney. 6
In summary, the Supreme Court asked: “ May a motion for postconviction discovery pursuant to Penal Code section 1054.9 be denied solely due to a de fendant‟s inability to pay? ” The answer is no. Section 1054.9 requires the costs of copying to be

“ borne or reimbursed by the defendant. ” (§ 1054.9, subd. (d), italics added.) A superior

court “ may not completely prohibit petitioner from receiving postconv iction discovery without first paying for copies of what he receives ” but should fashion a method for petitioner to reimburse the d istrict a ttorney over time or otherwise gain access to the

materials

. ( Davis v. Superior Court, supra, 1 Cal. App. 5th at p. 88 9.) The second question posed by our high court is: “ May [ a motion under section
1054.9] be summarily denied [due to a defendant‟s inability to pay] without a hearing? ”

6 The Attorney General suggests that the superior court pay the copying costs, add those costs to court fees , and recover the costs under Government Code section 68635, which allows garnishment of priso n wages to collect court fees

. But postconviction discovery costs are not “court filing fees and costs” encompassed by the garnishment
statute

. Although district attorneys undoubtedly have limited resources

, the superior courts have not been appropriated f

unds to advance these copying costs.7

The short answer is no , but a hearing should rarely be necessary

. A defendant‟s inabi lity to pay discovery costs before receiving responsive documents is not a basis for denying discovery. Where, as here, a moving party demonstrates entitlement to postconviction discovery but asserts he is unable to pay copy costs, the court should determi ne if defendant is indigent as claimed and, if so, order reimbursement. In most cases the court will be able to make this determination based on the documentation submitted in support of the application. In the unlikely event that the defendant makes the n ecessary showing of indigency and the district attorney submits evidence to the contrary or there is reason to question the defendant‟s showing, a hearing will be required to determine the issue. However, as indicated, such instances should not be frequent

. Disposition

The order of t he Superior Court of Alameda County denying petitioner‟s request for postconviction discovery under section 1054.9 is reversed and the matter is remanded for further proceedings. The superior court shall determine if defendant is unable to pay in advance for the costs of copying documents responsive to his discovery request and, if
so, issue an order for reimbursement to the district a ttorney consistent with the parties‟ agreement. If the parties fail to agree on a reimbursement plan for copying costs, the

court is authorized to enter a n order consistent with this opinion.8 _________________________ Pollak, Acting P.J.

We concur:

_________________________ Siggins, J.

_________________________ Jenkins, J.9

A14900610

Trial court: Alameda County Superior Court

Trial judge: Honorable Larry Goodman

Counsel for petitioner: L. Richard Braucher, under appointment by the Court of Appeal.

Counsel for respondent: No appearance.

Counsel for rea l party in interest: Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Eric D. Share, Supervising Deputy Attorney General, and Alisha M. Carlile, Deputy Attorney General.

A149006