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Name: Rubio v. Superior Court
Case #: B264635
Court: CA Court of Appeal
District 2 DCA
Division: 3
Opinion Date: 01/28/2016

The “actual costs” of complying with a defendant’s postconviction discovery request for paper or electronic documents under Penal Code section 1054.9 do not include costs related to examination and preparation of documents for production. Rubio was convicted of first degree murder with special circumstances and sentenced to death. He moved for postconviction discovery in the trial court pursuant to section 1054.9, which permits such discovery in cases where the defendant is sentenced to death or life without the possibility of parole. The District Attorney complied with Rubio’s request, but sought reimbursement ($2,560.53) for the 44.5 hours a paralegal spent reviewing 17,000 pages of documents and duplicating portions for Rubio. After the trial court ordered Rubio to reimburse the District Attorney, Rubio filed a petition for writ of mandate. Held: Petition granted. Section 1054.9, subdivision (b) provides that “[t]he actual costs of examination or copying pursuant to this section shall be borne or reimbursed by the defendant.” The People argued that “actual costs” includes duplication costs and staff time spent locating, retrieving, examining, preparing, and copying the materials. Rubio argued that “actual costs” includes only the costs of duplication. After analyzing the plain language of the statute, the legislative history, and policy considerations, the court concluded that “the actual costs of copying do not encompass costs related to examining, redacting, and preparing documents for production in response to a 1054.9 request.” But it does “include the labor cost of the employee who actually copies items or transfers them to electronic media, as well as a proportional share of equipment costs and the cost of the ‘product’ itself—for example, the ink, paper, or compact disc.” The trial court was directed to recalculate the amount of reimbursement.

The full opinion is available on the court’s website here: