Indigent defendant is not required to pay in advance for costs of postconviction discovery. In 1998 a jury convicted Davis of three counts of first degree murder with enhancements. He was given multiple LWOP terms. In 2011, he sought postconviction discovery (Pen. Code, § 1054.9). The trial court ordered Davis and the real party in interest (the People) to agree on which items he would receive and informed Davis he would be required to pay in advance for the material. In 2015, Davis wrote the court identifying the items requested and objecting to the requirement he pay for the material in advance. The court denied the request. Davis petitioned for writ of mandate. Held: Writ issued. Defendants facing death or LWOP sentences and who are prosecuting a petition for writ of habeas corpus or motion to vacate judgment may demand production of postconviction discovery (Pen. Code, § 1054.9, subd. (a)). If the inmate makes a showing that good faith, but unsuccessful, efforts were made to obtain the material from trial counsel, the trial court “shall” order that the “discovery materials” be made available to the defendant. “Discovery materials” means items in the possession of the prosecution and law enforcement authorities to which defendant would have been entitled at the time of trial. The defendant need not prove the materiality of the items before being able to receive them, unless he seeks physical evidence. He only needs to make a threshold showing that the documents exist. Section 1054.9 does not require Davis to pay in advance for copies of discovery, only that an inmate either bear or reimburse these costs. On remand the trial court may consider to which items Davis is entitled and address his payment of costs.

To the extent defendant seeks DNA testing, he is required to comply with the requirements set forth in Penal Code section 1405. One item defendant sought was “all DNA collected.” Penal Code section 1054.9 bars him from obtaining new DNA testing without complying with section 1405. Section 1405, subdivision (b), requires that he explain how the DNA testing is relevant to his assertion of innocence. Further, defendant is only entitled to access physical evidence if he shows good cause to believe that it is “reasonably necessary to [his] effort to obtain relief.” (Pen. Code, § 1054.9, subd. (c).)

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/E063943.PDF