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Bill Expanding Defendants’ Discovery Rights in Post-Conviction Proceedings Is Signed
By a MetNews Staff Writer
Gov. Gavin Newsom has signed legislation expanding a criminal defendant’s right to discovery in post-conviction proceedings relating to the filing of a petition for a writ of habeas corpus or a motion to vacate a judgment, removing provisions limiting the entitlement to cases involving strike offenses with significant sentences and defining the discoverable materials to include a prosecutor’s jury selection notes.
On Tuesday, the governor signed Assembly Bill 1036 which amends Penal Code §1054.9. Assembly member Nick Schultz, D-Burbank, authored the legislation which replaces language limiting the section to only “serious…or violent felon[ies] resulting in a sentence of 15 years or more” with provisions indicating that the law applies to any felony so long as the defendant is sentenced to at least one year of incarceration.
The bill also eliminates a requirement that a defendant make good faith efforts to obtain discovery materials from the attorney who represented the accused at trial before seeking a court order compelling disclosure from prosecutors and others.
Under the bill’s amendments, §1054.9 provides:
“In a case in which a defendant is or has ever been convicted of a felony resulting in a sentence of one year of incarceration 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, the court shall, except…when a protective order prohibits disclosure, order that the defendant be provided reasonable access to any of the discovery materials….”
Assembly Bill 1036 expands the definition of “discovery materials” to include not only evidence “ in the possession of the prosecution and law enforcement authorities that the same defendant would have been entitled at time of trial” but also any information “that tend[s] to negate guilt, mitigate the offense, mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.”
Also added to §1054.9 is language specifying that the discoverable data includes “all materials that the convicted person would be entitled to if they were being tried today, irrespective of whether the materials were discoverable at the time of the convicted person’s original trial” and “the prosecutor’s jury selection notes.”
California case law provides that the disclosure of such notes may be compelled if a prima facie case of racial bias in the use of a peremptory challenge has been made. However, prosecutors may seek redaction to protect any legal conclusions that are independent of the impressions about potential panelists based on an assertion of the work-product privilege.
Yesterday’s signing appears to make the notes discoverable even in the absence of any implication of racial bias or other improper motivations and without any recognition of how the privilege may come into play.
The legislation further imposes increased obligations on defense attorneys, who were once only required to retain client files for offenders who were ordered to serve 15 years or more in prison on a strike offense. Under Assembly Bill 1036, lawyers are compelled to keep information relating to any felony case that involved a sentence of one or more years of incarceration beginning on July 1, 2026.
Digital files are permitted in lieu of physical ones only if color copies are preserved.
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