McGinnis v. Superior Court of Alameda County

Filed 1/27/17 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