Motion for postconviction discovery may not be denied solely due to defendant’s inability to pay in advance for copies of materials. Petitioner McGinnis was convicted of first degree murder and sentenced to life without the possibility of parole. In connection with his second petition for writ of habeas corpus, McGinnis, who is indigent, sought production of postconviction discovery materials under Penal Code section 1054.9. The trial court denied his motions and cost waiver application. McGinnis sought review of the court’s order, and the California Supreme Court transferred the case to the Court of Appeal to determine whether a motion for postconviction discovery can be denied solely due to a defendant’s inability to pay. Held: Order denying discovery reversed. Penal Code 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. Subdivision (d) requires the cost of copying those documents to be “borne or reimbursed by the defendant.” (Pen. Code, § 1054.9, subd. (d).) Because nothing in the statute requires copying costs to be paid in advance, and because the statute specifically references “reimbursement,” postconviction discovery may not be denied based solely on a defendant’s inability to pay for copies in advance. (See Davis v. Superior Court (2016) 1 Cal.App.5th 881.) Rather, where “a moving party demonstrates entitlement to post-conviction 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.” The matter was remanded to the trial court for a determination of McGinnis’ ability to pay and, if necessary, an order addressing reimbursement of costs.

Where a defendant’s inability to pay copy costs is disputed, a section 1054.9 motion may not be summarily denied without a hearing to address defendant’s ability to pay. If a defendant makes the necessary showing of indigency in connection with a postconviction discovery motion under section 1054.9, but there is reason to question the defendant’s showing, the court must hold a hearing to determine defendant’s ability to pay. In most cases, the court will be able to determine a defendant’s ability to pay based on the submitted documentation alone.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A149006.PDF