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,                                    A149006

v.                                                     (Alameda County
THE SUPERIOR COURT OF                                  Super. Ct. No. 127033)
ALAMEDA COUNTY,
                                                       ORDER MODIFYING OPINION;
        Respondent;                                    NO CHANGE IN JUDGMENT
THE PEOPLE,
        Real Party in Interest.


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 indigent 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.




A149006
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.                                                                     A149006
THE SUPERIOR COURT OF
ALAMEDA COUNTY,                                                        (Alameda County
                                                                       Super. Ct. No. 127033)
           Respondent;
THE PEOPLE,
           Real Party in Interest.


           Penal Code1 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 requires 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 inability 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 copying 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.



                                                             1
                    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 petition. On February 25, 2015, he filed in the Alameda
County Superior Court a motion for postconviction production of “discovery materials”
in possession of the Alameda County District Attorney, including investigative reports on
the analysis of physical evidence, 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, the 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 asked his appellate
attorney or the district attorney for the documents before filing the motion.
       On 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 district attorney requesting the documents. On August 28, 2015, with
the motion pending, the district attorney 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 resources to retain
private counsel” or “the financial ability to pay for copies of the production of post-
conviction discovery as requested” of the district attorney. Petitioner averred: “I currently



                                              2
have a prison job and make approximately seven dollars ($7.00) a month after court-
imposed restitution is deducted from my pay.”
         On October 7, 2015, the court denied petitioner‟s discovery motion because the
district attorney agreed to produce responsive documents. The court stated that defendant
could renew the motion should it be necessary after 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 or 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 attorney.”
         The district attorney wrote to petitioner on October 23, 2015 offering to produce
the requested discovery and stating the copying costs to be $122.80.3 Petitioner asked the
district attorney 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. The 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. The United States Constitution 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 $105
for witness interviews copied onto seven cassette tapes. The district attorney 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 not appear in the record, only the order. The superior court clerk attests that the March 17, 2016
motion is not in the court file.



                                                           3
    motion 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 protection 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 are paid to the district
attorney. (§ 1054.9.) Petitioner asserts the renewed motion was denied.
          Petitioner filed a petition for writ of mandate in this court, which we summarily
denied. Petitioner then filed a petition for writ of mandate in the California Supreme
Court seeking an order directing the superior court to provide postconviction discovery
without advance payment of costs. The high court refiled the petition as a petition for writ
of certiorari, granted it, and transferred it to this court with directions 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 pay? (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,
the return on the petition and petitioner‟s traverse.
                                                 Discussion
          Common law principles provide that a person seeking habeas corpus relief is not
entitled to court-ordered discovery unless and until the court issues an order to show
cause and thus determines that the petition states a prima facie case for relief. (People v.
Gonzalez (1990) 51 Cal.3d 1179, 1255-1261.) That 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.


                                                       4
       Section 1054.9, subdivision (a) provides: “Upon the prosecution of a
postconviction writ of habeas corpus or a motion to vacate 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 court 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 examination 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 reimburse
costs after receiving responsive documents. In his traverse, petitioner states he “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 that 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 “forcing 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 appellate 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 constitutional concerns because section
1054.9, fairly read, “does not require an inmate seeking postconviction discovery to pay
in advance for copies of discovery” (id. at p. 889). The statute requires the costs of


                                              5
copying to be “borne or reimbursed by the defendant.” (§ 1054.9, subd. (d), italics
added.) The court held that, pursuant to the terms of the statute itself, one “may not
completely prohibit petitioner from receiving postconviction discovery without first
paying for copies of what he receives.” (Id. at p. 889.) The court declined 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 paying 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.” (Ibid.)
        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 and remitting the payment to the district attorney.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 defendant‟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 postconviction discovery
without first paying for copies of what he receives” but should fashion a method for
petitioner to reimburse the district attorney over time or otherwise gain access to the
materials. (Davis v. Superior Court, supra, 1 Cal.App.5th at p. 889.)
        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 prison 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 funds to advance these copying costs.




                                                        6
The short answer is no, but a hearing should rarely be necessary. A defendant‟s inability
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 determine 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 necessary 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 the 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 attorney consistent with the parties‟
agreement. If the parties fail to agree on a reimbursement plan for copying costs, the
court is authorized to enter an order consistent with this opinion.




                                              7
                                _________________________
                                Pollak, Acting P.J.

We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




                            8
A149006




          9
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.




A149006



                                        10
