Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of incarceration in the Department of Corrections and Rehabilitation. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense. The bill would clarify the definition of the prosecution to include the prosecuting agency and counsel for the respondent to a habeas corpus petition. The bill would require the prosecutor, in order to shield jury selection notes from disclosure, to make a foundational proffer describing how information in their file would bear on their case strategy. The bill would require the court, upon a showing of good cause by the prosecutor, to conduct an in camera review and order necessary redactions. The bill would clarify that good cause to shield jury selection notes from disclosure is shown when the prosecution did not exercise any peremptory challenges during jury selection.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026, that result in a sentence of incarceration in the Department of Corrections and Rehabilitation to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of incarceration in the Department of Corrections and Rehabilitation. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense. The bill would clarify the definition of the prosecution to include the prosecuting agency and counsel for the respondent to a habeas corpus petition. The bill would require the prosecutor, in order to shield jury selection notes from disclosure, to make a foundational proffer describing how information in their file would bear on their case strategy. The bill would require the court, upon a showing of good cause by the prosecutor, to conduct an in camera review and order necessary redactions. The bill would clarify that good cause to shield jury selection notes from disclosure is shown when the prosecution did not exercise any peremptory challenges during jury selection.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026, that result in a sentence of incarceration in the Department of Corrections and Rehabilitation to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of incarceration in the Department of Corrections and Rehabilitation or county jail, as specified. Rehabilitation. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense. The bill would clarify the definition of the prosecution to include the prosecuting agency and counsel for the respondent to a habeas corpus petition. The bill would require the prosecutor, in order to shield jury selection notes from disclosure, to make a foundational proffer describing how information in their file would bear on their case strategy. The bill would require the court, upon a showing of good cause by the prosecutor, to conduct an in camera review and order necessary redactions. The bill would clarify that good cause to shield jury selection notes from disclosure is shown when the prosecution did not exercise any peremptory challenges during jury selection.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026, that result in a sentence of incarceration, as specified, incarceration in the Department of Corrections and Rehabilitation to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of incarceration in the Department of Corrections and Rehabilitation or county jail, as specified. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense. The bill would clarify the definition of the prosecution to include the prosecuting agency and counsel for the respondent to a habeas corpus petition. The bill would require the prosecutor, in order to shield jury selection notes from disclosure, to make a foundational proffer describing how information in their file would inhibit bear on their case strategy. The bill would require the court, upon a showing of good cause by the prosecutor, to conduct an in camera review and order necessary redactions. The bill would clarify that good cause to shield jury selection notes from disclosure is shown when the prosecution did not exercise any peremptory challenges during jury selection.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026, that result in a sentence of incarceration, as specified, to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of one year of incarceration or more, and would no longer require a showing that efforts to obtain discovery from trial counsel were unsuccessful. of incarceration in the Department of Corrections and Rehabilitation or county jail, as specified. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense. The bill would clarify the definition of the prosecution to include the prosecuting agency and counsel for the respondent to a habeas corpus petition. The bill would require the prosecutor, in order to shield jury selection notes from disclosure, to make a foundational proffer describing how information in their file would inhibit their case strategy. The bill would require the court, upon a showing of good cause by the prosecutor, to conduct an in camera review and order necessary redactions. The bill would clarify that good cause to shield jury selection notes from disclosure is shown when the prosecution did not exercise any peremptory challenges during jury selection.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026 2026, that result in a sentence of one year of incarceration or more, incarceration, as specified, to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

Existing law requires the court, in a case involving a conviction of a serious or violent felony resulting in a sentence of 15 years or more, to order that the defendant be provided reasonable access to discovery materials upon the prosecution of a postconviction writ of habeas corpus or a motion to vacate judgment and a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful. Existing law defines discovery materials as materials in the possession of the prosecution and law enforcement authorities that the defendant would have been entitled to at the time of trial.

Existing law requires trial counsel to retain copies of files for criminal convictions of serious or violent felonies resulting in a sentence greater than 15 years for the duration of the clients imprisonment. Existing law authorizes trial counsel to retain those copies digitally, if every item is preserved.

This bill would authorize reasonable access, except as specified, to discovery materials for felonies resulting in a sentence of one year of incarceration or more, and would no longer require a showing that efforts to obtain discovery from trial counsel were unsuccessful. The bill would broaden the definition of discovery materials to include, among other things, materials from any prosecutor who tried or worked on the case that tend to negate guilt, or mitigate the sentence or offense.

The bill would additionally require trial counsel, for all criminal convictions on or after July 1, 2026 that result in a sentence of one year of incarceration or more, to retain digital color copies of every item in the file. By increasing the duties of public defenders, this bill would create a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1036

Author:(Schultz)

As Amended Ver:August 29, 2025

Majority vote

SUMMARY

Authorizes reasonable access, except as specified, to post-conviction discovery materials for felonies resulting in a sentence of incarceration in state prison.

Senate Amendments

1. Limits reasonable access to post-conviction discovery materials for felonies resulting in a state prison sentence, but not a county jail sentence.

2) Makes other technical, non-substantive change.

COMMENTS

As passed by the Assembly: This bill authorized reasonable access, except as specified, to post-conviction discovery materials for felonies resulting in a sentence of incarceration in state prison or county jail.

Major Provisions

1. Expanded the definition of "discovery materials" to include materials that tend to negate guilt, the offense, the sentence, or otherwise are favorable or exculpatory to the defendants.
2. Specified "discovery materials" also 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 jury selection notes, as specified.
3. Mandated the following regarding the production of jury selection notes:
   1. If the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would bear on their case strategy.
   2. If a court finds good cause to believe the jury selection notes would bear on the prosecution's case strategy, it must conduct an in camera review and order necessary redactions.
   3. The prosecution's lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes.
4. Clarified that a defendant's trial counsel maintain a copy of a former client's case file for any felony for which the defendant was sentenced to state prison or county jail.
5. Provided that reasonable access to post-conviction discovery materials is authorized after a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful.
6. Defined "the prosecution" as a prosecuting agency, as well as counsel for the respondent in a habeas petition.
7. Stated access to post-conviction discovery materials, as specified, does not impose an additional obligation to investigate the existence of new discovery materials or prohibit a court from ordering the prosecution or law enforcement to investigate the existence of new discovery materials when appropriate.
8. Stated, beginning January 1, 2026, the electronic copies are sufficient only if every item in the file is digitally copied in color and preserved.

According to the Author

"California's current post-conviction discovery laws create unnecessary barriers for incarcerated individuals seeking access to critical evidence that could prove their innocence or reduce their sentences. Under existing law, only those convicted of serious or violent felonies with sentences of 15 years or more can request discovery materials, and only after first attempting to obtain them from their trial counsel. This restrictive process often leaves wrongfully convicted individuals without the evidence needed to challenge their convictions, disproportionately impacting marginalized communities and undermining trust in our justice system.

"AB 1036 seeks to address these inequities by expanding access to post-conviction discovery to all individuals convicted of felonies with sentences of one year or more. It eliminates the burdensome requirement of first seeking discovery from trial counsel and broadens the definition of "discovery materials" to include exculpatory and mitigating evidence and jury selection notes. Additionally, this bill ensures transparency and accountability by requiring trial counsel to maintain digital color copies of case files, preventing the loss of crucial records.

"By modernizing California's post-conviction discovery laws, AB 1036 enhances fairness in our criminal legal system and helps correct wrongful convictions more efficiently. Providing broader access to evidence will not only prevent innocent individuals from remaining incarcerated but will also strengthen public confidence in the integrity of our legal system. AB 1036 ensures that truth and fairness remain at the core of our system, making California safer and more just for all."

Arguments in Support

According to Californians for Safety of Justice, "This bill ensures greater fairness in the post-conviction process by allowing individuals convicted of felonies with sentences of one year or more to obtain crucial discovery materials from prosecutors and law enforcement. AB 1036 removes the requirement to seek discovery from trial counsel first and expands the definition of "discovery materials" to include exculpatory, mitigating evidence, and jury selection notes. These changes will modernize and enhance California's post-conviction statutes, ensuring a more efficient and fair justice system, while addressing wrongful convictions.

"In California, the current law presents significant barriers to justice by limiting access to discovery materials that could prove a person's innocence. Many wrongfully convicted individuals are unable to access critical evidence that could lead to their exoneration or help mitigate their sentence. The existing requirement for petitioners to prove they attempted to obtain materials from trial counsel before petitioning the court often proves burdensome and inequitable. This system makes it unnecessarily difficult for individuals to access the evidence that could demonstrate their innocence, leaving many incarcerated without the ability to seek justice.

"AB 1036 seeks to address this injustice by expanding access to discovery materials in a way that removes these barriers, giving all individuals convicted of felonies resulting in a sentence of one year or more the opportunity to obtain the evidence they need to challenge their conviction or reduce their sentence. By eliminating the requirement to first seek discovery from trial counsel, this bill opens access to the full range of materials that could potentially exonerate a person, including critical exculpatory evidence, newly discovered mitigating information, and even jury selection notes. These materials are often pivotal to revealing the truth in cases of wrongful conviction, and their availability is crucial for a just and fair process. The expansion of this access would ensure that individuals who were wrongfully convicted have a fair chance to challenge their convictions considering new evidence that could prove their innocence."

Arguments in Opposition

According to the California District Attorneys Association, "Current law provides several ways in which a person pursuing a postconviction writ of habeas corpus may request discovery. For example, any time a court has issued an order to show cause and thus has recognized that if the person's claims are true, they may be entitled to relief, that same court may order discovery. This is true of any petition for writ of habeas corpus brought by any person, regardless of what they were convicted of or how much time they were ordered to serve.

"In addition, Penal Code section 1054.9 currently provides enhanced postconviction discovery rights to individuals convicted of a serious or violent felony and sentenced to 15 years or more. These individuals may obtain discovery when pursuing a postconviction writ of habeas corpus or a motion to vacate judgment. Though many discovery requests brought under section 1054.9 are made after a petition for writ of habeas is filed, the requests may be made before filing. AB 1036 would broaden these enhanced discovery rights to any person convicted of a felony who received a sentence of at least a year of incarceration.

"Section 1054.9 currently includes safeguards to protect against unnecessarily burdensome requests. For example, the law currently requires a showing that good faith efforts to obtain the materials from trial counsel have been made and were unsuccessful. Moreover, since 2019, defense counsel has been required to maintain discovery materials for this purpose for the duration of the client's imprisonment. AB 1036 would eliminate the requirement that convicted individuals first seek copies of discovery that their defense lawyers have retained specifically for this purpose, and allow them to instead seek the discovery directly from the prosecution.

"Further, the bill broadens the definition of "discovery materials" in two ways. First, it requires discovery of materials that "tend to negate guilt, mitigate the offense, or mitigate the sentence, or otherwise are favorable or exculpatory to the defendant." This attempt to codify existing decisional authority is unnecessary. Prosecutors are already subject to an ongoing obligation upon prosecutors under Brady v. Maryland to supply convicted persons with material favorable evidence. In addition, Rule 3.8 of the California Rules of Professional Conduct requires prosecutors to disclose new, credible and material evidence that creates a reasonable likelihood the convicted person did not commit crime. CDAA believes that these standards do not require codification

"The second way in which AB 1036 expands the definition of discovery is by including as discovery the prosecutor's jury selection notes regardless of whether a colorable – or any claim – of misconduct in jury selection is made. Under current law a convicted person may receive the prosecutor's jury selection notes if they can demonstrate a prima facie case of racial bias in jury selection. This standard recognizes that much of what is contained in a prosecutor's jury selection notes may reflect upon trial strategy or contain other information that qualifies as core work product, and that disclosure of jury selection notes should not be ordered without good cause and judicial review.

"CDAA strongly objects to any amendment that would mandate disclosure of jury notes in all cases regardless of whether there is any evidence of bias or misconduct in jury selection. CDAA is deeply concerned that by expanding the pool of convicted persons who may seek pre-filing habeas discovery, by eliminating the requirement that a convicted person first seek copies from defense counsel, and by expanding the definition of discovery materials far beyond current discovery obligations, AB 1036 lacks sufficient safeguards to prevent misuse of discovery requests and may create opportunities for frivolous or abusive litigation that could overwhelm courts and prosecutors' offices."

FISCAL COMMENTS

According to the Senate Appropriations Committee:

1. Unknown costs to the state funded trial courts (Trial Court Trust Fund, General Fund) for the additional hearings need to resolve discovery disputes in these postconviction proceedings. The actual costs depend on the expected population of defendants who might seek post-conviction discovery as authorized by AB 1036 and have their requests come before the court for resolution. Beginning in fiscal year 2024-25, the trial courts have absorbed an ongoing $55 million reduction to their operational funding, which impacts their ability to provide core services. Absent an appropriation, this bill will result in new, unfunded workload for the trial courts, putting further pressure on their limited resources.
2. Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to post-conviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
3. Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill's record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill's new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

VOTES:

ASM PUBLIC SAFETY: 7-0-2

YES: Schultz, Mark González, Haney, Harabedian, Nguyen, Ramos, Sharp-Collins

ABS, ABST OR NV: Alanis, Lackey

ASM APPROPRIATIONS: 12-2-1

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Pellerin, Solache, Ta

NO: Dixon, Tangipa

ABS, ABST OR NV: Sanchez

ASSEMBLY FLOOR: 53-13-13

YES: Addis, Aguiar-Curry, Ahrens, Alvarez, Arambula, Ávila Farías, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Caloza, Carrillo, Connolly, Elhawary, Fong, Gabriel, Garcia, Gipson, Mark González, Haney, Harabedian, Hart, Irwin, Jackson, Kalra, Lee, Lowenthal, McKinnor, Nguyen, Ortega, Papan, Patel, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Ransom, Celeste Rodriguez, Rogers, Schiavo, Schultz, Sharp-Collins, Ta, Valencia, Ward, Wicks, Wilson, Zbur, Rivas

NO: Davies, DeMaio, Dixon, Ellis, Gallagher, Jeff Gonzalez, Hadwick, Hoover, Macedo, Patterson, Sanchez, Tangipa, Wallis

ABS, ABST OR NV: Alanis, Castillo, Chen, Flora, Krell, Lackey, Muratsuchi, Pacheco, Michelle Rodriguez, Blanca Rubio, Solache, Soria, Stefani

UPDATED

VERSION: August 29, 2025

CONSULTANT: Kimberly Horiuchi / PUB. S. / (916) 319-3744 FN: 0002113

 THIRD READING  

Bill No: AB 1036

Author: Schultz (D)

Amended: 8/29/25 in Senate

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 5-1, 7/1/25

AYES: Arreguín, Caballero, Gonzalez, Pérez, Wiener

NOES: Seyarto

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/29/25

AYES: Caballero, Cabaldon, Grayson, Richardson, Wahab

NOES: Seyarto, Dahle

ASSEMBLY FLOOR: 53-13, 6/2/25 - See last page for vote

SUBJECT: Criminal procedure: postconviction discovery

SOURCE: California Innocence Coalition

DIGEST:

This bill increases access to postconviction discovery for felony defendants who were sentenced to state prison.

ANALYSIS:

Existing law:

1. Provides that in a case in which a defendant is or has ever been convicted of a serious felony or a violent felony resulting in a sentence of 15 years 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, and on a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful, the court shall, except as provided, order that the defendant be provided reasonable access to any of the materials, as defined. (Penal Code (Pen. Code), § 1054.9, subd. (a).)
2. Provides that in a case in which a sentence other than death or life in prison without the possibility of parole is or has ever been imposed, if a court has entered a previous order granting discovery, a subsequent order granting discovery may be made in the court’s discretion. (Pen. Code, § 1054.9, subd. (b).)
3. Defines “discovery materials” in this context as “materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.” (Pen. Code, § 1054.9, subd. (c).)
4. Provides that in response to a writ or motion, the court may order that the defendant be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant only upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Pen. Code, § 1054.9, subd. (d).)
5. States the retention of discovery materials is not required unless otherwise required by law or court order. (Pen. Code, § 1054.9, subd. (f).)
6. Provides that in criminal matters involving a conviction for a serious or violent felony resulting in a sentence of 15 years or more, trial counsel shall retain a copy of a former client’s files for the term of imprisonment. An electronic copy is sufficient only if every item in the file is digitally copies and preserved. (Pen. Code, § 1054.9, subd. (g).)
7. Provides that specified changes to the postconviction discovery laws are intended to only apply prospectively. (Pen. Code, § 1054.9, subd. (j).)
8. Requires the prosecution to disclose the following evidence to the defendant or their attorney before trial, if it is possessed by the prosecution or the prosecutor knows it is possessed by the investigating agencies:
   1. Names and addresses of persons the prosecutor intends to call as witnesses at trial;
   2. Statements made by all defendants;
   3. All relevant real evidence obtained as part of the investigation of the charged offenses;
   4. The existence of felony convictions of material witnesses whose credibility is likely to be critical to the outcome of the trial;
   5. Any exculpatory evidence; and,
   6. Relevant written or recorded statements of witnesses or reports of the statements of witnesses whom the prosecutor intends to call at trial. (Pen. Code, § 1054.1.)

This bill:

1. Extends post-conviction discovery to include cases in which a defendant is or has ever been convicted of a felony resulting in incarceration in state prison, instead of those convicted of a serious or violent felony resulting in a sentence of 15 years of more.
2. Excepts from post-conviction discovery cases in which a protective order prohibits the disclosure.
3. Expands the definition of post-conviction "discovery materials" to include materials that tend to negate guilt, mitigate the offense, mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.
4. Specifies post-conviction "discovery materials" also 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 prosecution's jury selection notes.
5. Requires the following regarding the production of jury selection notes:
   1. If the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would bear on their case strategy;
   2. If a court finds good cause to believe the jury selection notes would bear on the prosecution’s case strategy, it must conduct an in camera review and order necessary redactions; and,
   3. The prosecution’s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes.
6. Defines "the prosecution" as a prosecuting agency, as well as counsel for the respondent in a habeas petition.
7. States that access to post-conviction discovery materials, as specified, does not impose an additional obligation to investigate the existence of new discovery materials or prohibit a court from ordering the prosecution or law enforcement to investigate the existence of new discovery materials when appropriate.
8. Clarifies that a defendant’s trial counsel shall maintain a copy of a former client’s case file for any felony conviction resulting in incarceration in state prison. Digital copies must be preserved in color.
9. Provides that to the extent this imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions resulting in incarceration in state prison on or after July 1, 2026.

Comments

Post-Conviction Discovery Generally. Existing law generally allows for limited discovery in post-conviction proceedings like petitions for habeas corpus or motions to vacate. Penal Code section 1054.9 allows for reasonable access to any discovery available to the defendant at the time of trial, but only in cases where the defendant was sentenced to 15 years or more on a serious or violent felony. However, the defendant must demonstrate that efforts to obtain the trial attorney’s file were unsuccessful. Defense attorneys must retain client files when the person was incarcerated for more than 15 years on a serious or violent felony for the period of the person’s confinement. (Pen. Code, § 1054.9, subd. (a).)

Penal Code section 1054.9, subdivision (c) only allows discovery of materials to which the defendant would have been entitled at time of trial. This includes discovery of materials to which the defendant was entitled at trial but did not receive. (Barnett v. Superior Court (2010) 50 Cal.4th 890, 898.)

This bill allows for post-conviction discovery in any felony case resulting in incarceration in state prison – not just serious and violent felonies for which the defendant is sentenced to 15 years or more – and clarifies that discoverable materials includes any evidence that may be available to the defendant today, regardless of whether it would have been available at the time of trial. This bill provides the following with respect to post-conviction discovery of the prosecution’s jury notes:

• If the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would bear on their case strategy;
• If a court finds good cause to believe the jury selection notes would bear the prosecution′s case strategy, it must conduct an in camera review and order necessary redactions; and,

Moreover, the prosecution′s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes. Finally, this bill requires criminal defense attorneys to retain records for any felony resulting in a sentence of a year or more for the term of the defendant’s incarceration.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

Fiscal Impact:

• Unknown costs to the state funded trial courts (Trial Court Trust Fund, General Fund) for the additional hearings need to resolve discovery disputes in these postconviction proceedings. The actual costs depend on the expected population of defendants who might seek post-conviction discovery as authorized by AB 1036 and have their requests come before the court for resolution. Beginning in fiscal year 2024-25, the trial courts have absorbed an ongoing $55 million reduction to their operational funding, which impacts their ability to provide core services. Absent an appropriation, this bill will result in new, unfunded workload for the trial courts, putting further pressure on their limited resources.
• Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to postconviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
• Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

SUPPORT: (Verified 8/29/25)

ACLU California Action

California Public Defenders Association

Catalyst California

Communities United for Restorative Youth Justice

Courage California

Death Penalty Focus

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Initiate Justice

Initiate Justice Action

Justice2jobs Coalition

LA Defensa

San Francisco Public Defender

Silicon Valley De-bug

Smart Justice California, a Project of Tides Advocacy

The W. Haywood Burns Institute

University of San Francisco School of Law | Racial Justice Clinic

OPPOSITION: (Verified 8/29/25)

California District Attorneys Association

One Private Individual

ARGUMENTS IN SUPPORT:

According to the California Public Defenders Association:

It is a sad truth that our system of justice is far from perfect, and that far too often innocent people are convicted for crimes they have not committed. (See, e.g., https://www.nbclosangeles.com/news/local/california-man-exonerated-released-prison-1998-whittier-shooting-miguel-solorio/3274941/ [Californian man recently exonerated after spending 25 years in prison]; https://www.eastbaytimes.com/2024/07/26/i-loved-her-temecula-man-exonerated-for-mistress-murder-says/ [California man recently exonerated after spending 20 years in prison]; https://www.dailynews.com/2024/05/07/la-county-approves-24-million-for-exonerated-men-after-their-years-in-prison/https://www.dailynews.com/2024/05/07/la-county-approves-24-million-for-exonerated-men-after-their-years-in-prison/ [Two Californian men recently exonerated after spending 23 years in prison].)

Under current law, however, wrongfully convicted men and women are prevented from accessing the evidence necessary to prove their innocence, either because that evidence was not preserved, or because the state refuses to give them access.

Assembly Bill 1036 addresses this issue, in part, by requiring defense counsel to preserve trial records, and by requiring the state to give post-conviction defendants access to relevant evidence, including evidence that tends to negate guilt, mitigate the offense, or prove that the conviction was wrongfully obtained.

Because a justice system that is unwilling to acknowledge its own errors is never just, AB 1036’s push for transparency and fairness in the post-conviction context is a vital step in the right direction.

ARGUMENTS IN OPPOSITION:

According to the California District Attorneys Association:

Current law provides several ways in which a person pursuing a postconviction writ of habeas corpus may request discovery. For example, any time a court has issued an order to show cause and thus has recognized that if the person’s claims are true, they may be entitled to relief, that same court may order discovery. This is true of any petition for writ of habeas corpus brought by any person, regardless of what they were convicted of or how much time they were ordered to serve.

In addition, Penal Code section 1054.9 currently provides enhanced postconviction discovery rights to individuals convicted of a serious or violent felony and sentenced to 15 years or more. These individuals may obtain discovery when pursuing a postconviction writ of habeas corpus or a motion to vacate judgment. Though many discovery requests brought under section 1054.9 are made after a petition for writ of habeas is filed, the requests may be made before filing. AB 1036 would broaden these enhanced discovery rights to any person convicted of a felony who received a sentence of at least a year of incarceration.

Section 1054.9 currently includes safeguards to protect against unnecessarily burdensome requests. For example, the law currently requires a showing that good faith efforts to obtain the materials from trial counsel have been made and were unsuccessful. Moreover, since 2019, defense counsel has been required to maintain discovery materials for this purpose for the duration of the client’s imprisonment. AB 1036 would eliminate the requirement that convicted individuals first seek copies of discovery that their defense lawyers have retained specifically for this purpose, and allow them to instead seek the discovery directly from the prosecution.

Further, the bill broadens the definition of “discovery materials” in two ways. First, it requires discovery of materials that “tend to negate guilt, mitigate the offense, or mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.” This attempt to codify existing decisional authority is unnecessary. Prosecutors are already subject to an ongoing obligation upon prosecutors under Brady v. Maryland to supply convicted persons with material favorable evidence. In addition, Rule 3.8 of the California Rules of Professional Conduct requires prosecutors to disclose new, credible and material evidence that creates a reasonable likelihood the convicted person did not commit crime. CDAA believes that these standards do not require codification.

The second way in which AB 1036 expands the definition of discovery is by including as discovery the prosecutor’s jury selection notes regardless of whether a colorable – or any claim – of misconduct in jury selection is made. Under current law a convicted person may receive the prosecutor’s jury selection notes if they can demonstrate a prima facie case of racial bias in jury selection. This standard recognizes that much of what is contained in a prosecutor’s jury selection notes may reflect upon trial strategy or contain other information that qualifies as core work product, and that disclosure of jury selection notes should not be ordered without good cause and judicial review. CDAA strongly objects to any amendment that would mandate disclosure of jury notes in all cases regardless of whether there is any evidence of bias or misconduct in jury selection.

CDAA is deeply concerned that by expanding the pool of convicted persons who may seek pre-filing habeas discovery, by eliminating the requirement that a convicted person first seek copies from defense counsel, and by expanding the definition of discovery materials far beyond current discovery obligations, AB 1036 lacks sufficient safeguards to prevent misuse of discovery requests and may create opportunities for frivolous or abusive litigation that could overwhelm courts and prosecutors’ offices.

We urge you to reconsider the language of AB 1036 and work with stakeholders, including prosecutors, to ensure that postconviction discovery processes remain fair for convicted persons without becoming unduly burdensome on prosecutors and without creating easy opportunities for abuse of process.

ASSEMBLY FLOOR: 53-13, 6/2/25

AYES: Addis, Aguiar-Curry, Ahrens, Alvarez, Arambula, Ávila Farías, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Caloza, Carrillo, Connolly, Elhawary, Fong, Gabriel, Garcia, Gipson, Mark González, Haney, Harabedian, Hart, Irwin, Jackson, Kalra, Lee, Lowenthal, McKinnor, Nguyen, Ortega, Papan, Patel, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Ransom, Celeste Rodriguez, Rogers, Schiavo, Schultz, Sharp-Collins, Ta, Valencia, Ward, Wicks, Wilson, Zbur, Rivas

NOES: Davies, DeMaio, Dixon, Ellis, Gallagher, Jeff Gonzalez, Hadwick, Hoover, Macedo, Patterson, Sanchez, Tangipa, Wallis

NO VOTE RECORDED: Alanis, Castillo, Chen, Flora, Krell, Lackey, Muratsuchi, Pacheco, Michelle Rodriguez, Blanca Rubio, Solache, Soria, Stefani

Prepared by: Cheryl Anderson / PUB. S. /

9/2/25 18:13:17

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2025 - 2026 Regular Session

AB 1036 (Schultz) - Criminal procedure: postconviction discovery

Bill Summary:

Increases access to post-conviction discovery for individuals convicted of felony offenses.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 29, 2025

Fiscal Impact:

• Unknown costs to the state funded trial courts (Trial Court Trust Fund, General Fund) for the additional hearings need to resolve discovery disputes in these postconviction proceedings. The actual costs depend on the expected population of defendants who might seek post-conviction discovery as authorized by AB 1036 and have their requests come before the court for resolution. Beginning in fiscal year 2024-25, the trial courts have absorbed an ongoing $55 million reduction to their operational funding, which impacts their ability to provide core services. Absent an appropriation, this bill will result in new, unfunded workload for the trial courts, putting further pressure on their limited resources.
• Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to post-conviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
• Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

Committee Amendments:

Narrow the scope of the bill to cases in which a defendant has been convicted of a felony resulting in incarceration in the Department of Corrections and Rehabilitation.

-- END --

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2025 - 2026 Regular Session

AB 1036 (Schultz) - Criminal procedure: postconviction discovery

Bill Summary:

AB 1036 increases access to post-conviction discovery for individuals convicted of felony offenses.

Fiscal Impact:

• The Judicial Council estimates an annual, ongoing cost of $800,000 to $4.3 million for AB 1036 for the additional hearings need to resolve discovery disputes in these postconviction proceedings. The estimate is based on the expected population of defendants who might seek post-conviction discovery as authorized by AB 1036 and have their requests come before the court for resolution and it should be noted that this estimate also includes the currently eligible population because the judicial branch does not have data on how often these post-conviction requests come to the court. The estimate includes hearing workload and judicial determination time to process and order releases of discovery that were withheld after the defendant’s request. Beginning in fiscal year 2024-25, the trial courts have absorbed an ongoing $55 million reduction to their operational funding, which impacts their ability to provide core services. Absent an appropriation, this bill will result in new, unfunded workload for the trial courts, putting further pressure on their limited resources.
  
• Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to post-conviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
• Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

Background:

Post-conviction discovery is the provision of materials and documents to a defendant after they have been convicted at trial and have exhausted their appeals. In recent years, the Legislature has enacted multiple bills to expand post-conviction resentencing, greatly increasing the pool of people who are entitled to petition the court to be resentenced or have their convictions vacated. The Penal Code governs the circumstances in which a court must order a prosecutor or law enforcement agency to provide specified discovery materials to a defendant pursuing post-conviction relief. With some exceptions, the court must generally issue such an order if: (a) the defendant was convicted of a serious or violent felony and sentenced to at least 15 years of incarceration; (b) the defendant has filed or is preparing to file a specified petition for post-conviction relief; and (c) the defendant shows a good faith but unsuccessful effort to obtain the discovery materials from the attorney who represented the defendant at trial.

Proposed Law:

• Expands reasonable access to post-conviction discovery materials to any case in which a defendant is or has ever been convicted of a felony resulting in incarceration in the Department of Corrections and Rehabilitation or in a county jail.
• Adds to the definition of, “discovery materials” materials that tend to negate guilt, mitigate the offense, mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.
  
• Clarifies that “Discovery materials” 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.
• 
  Provides that “Discovery materials” include the prosecution’s jury selection notes. 
• States that these provisions do not impose an additional obligation to investigate the existence of new discovery materials and does not prohibit a court from ordering the prosecution or law enforcement to investigate the existence of new discovery materials when appropriate.
• States that, if the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would bear on their case strategy. If the court finds good cause, the court shall conduct an in camera review and order necessary redactions.
  
• The prosecution’s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes.
  
• Requires, if the defendant’s trial counsel retains an electronic copy of a former client’s files, that the electronic copy be in color and preserved. To the extent this section imposes new requirements on trial counsel, trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions on or after July 1, 2026. 
  

Staff Comments: Over the past decade, the legislature has passed numerous measures that lowered standards, added claims, and made it more accessible to prepare and file a habeas petition. However, according to the Judicial Council report the amount of habeas petitions filed has decreased.^[1] Thus, it is uncertain whether expanding access to post-conviction discovery as proposed by this bill will lead to a substantial increase in habeas filings.

-- END --

1. Judicial Council, 2024 Court Statistics Report Statewide Caseload Trends 2013–14 through 2022–23, at p. 59. Available at: https://courts.ca.gov/sites/default/files/courts/default/2024-12/2024-court-statistics-report.pdf. ↑

ASSEMBLY THIRD READING

ATR Bill Id:AB 1036

Author:(Schultz)

As Amended Ver:May 23, 2025

Majority vote

SUMMARY

Authorizes reasonable access, except as specified, to post-conviction discovery materials for felonies resulting in a sentence of incarceration in state prison or county jail.

Major Provisions

1. Expands the definition of ″discovery materials″ to include materials that tend to negate guilt, the offense, the sentence, or otherwise are favorable or exculpatory to the defendants.
2. Specifies ″discovery materials″ also 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 jury selection notes, as specified.
3. Mandates the following regarding the production of jury selection notes:
   1. If the prosecution believes there is good cause to shield jury selection notes from disclosure, they shall make a foundational proffer describing how information in their file would inhibit their case strategy.
   2. If a court finds good cause to believe the jury selection notes would inhibit the prosecution′s case strategy, it must conduct an in camera review and order necessary redactions.
   3. The prosecution′s lack of exercised peremptory challenges during jury selection shall constitute good cause to withhold disclosure of jury selection notes.
4. Clarifies that a defendant′s trial counsel maintain a copy of a former client′s case file for any felony for which the defendant was sentenced to state prison or county jail.
5. Provides that reasonable access to post-conviction discovery materials is authorized after a showing that good faith efforts to obtain discovery materials from trial counsel were made and were unsuccessful.
6. Defines ″the prosecution″ as a prosecuting agency, as well as counsel for the respondent in a habeas petition.
7. States access to post-conviction discovery materials, as specified, does not impose an additional obligation to investigate the existence of new discovery materials or prohibit a court from ordering the prosecution or law enforcement to investigate the existence of new discovery materials when appropriate.
8. States, beginning January 1, 2026, the electronic copies are sufficient only if every item in the file is digitally copied in color and preserved.

COMMENTS

According to the Author

″California′s current post-conviction discovery laws create unnecessary barriers for incarcerated individuals seeking access to critical evidence that could prove their innocence or reduce their sentences. Under existing law, only those convicted of serious or violent felonies with sentences of 15 years or more can request discovery materials, and only after first attempting to obtain them from their trial counsel. This restrictive process often leaves wrongfully convicted individuals without the evidence needed to challenge their convictions, disproportionately impacting marginalized communities and undermining trust in our justice system.

″AB 1036 seeks to address these inequities by expanding access to post-conviction discovery to all individuals convicted of felonies with sentences of one year or more. It eliminates the burdensome requirement of first seeking discovery from trial counsel and broadens the definition of ″discovery materials″ to include exculpatory and mitigating evidence and jury selection notes. Additionally, this bill ensures transparency and accountability by requiring trial counsel to maintain digital color copies of case files, preventing the loss of crucial records.

″By modernizing California′s post-conviction discovery laws, AB 1036 enhances fairness in our criminal legal system and helps correct wrongful convictions more efficiently. Providing broader access to evidence will not only prevent innocent individuals from remaining incarcerated but will also strengthen public confidence in the integrity of our legal system. AB 1036 ensures that truth and fairness remain at the core of our system, making California safer and more just for all.″

Arguments in Support

According to Californians for Safety of Justice, ″This bill ensures greater fairness in the post-conviction process by allowing individuals convicted of felonies with sentences of one year or more to obtain crucial discovery materials from prosecutors and law enforcement. AB 1036 removes the requirement to seek discovery from trial counsel first and expands the definition of ″discovery materials″ to include exculpatory, mitigating evidence, and jury selection notes. These changes will modernize and enhance California′s post-conviction statutes, ensuring a more efficient and fair justice system, while addressing wrongful convictions.

″In California, the current law presents significant barriers to justice by limiting access to discovery materials that could prove a person′s innocence. Many wrongfully convicted individuals are unable to access critical evidence that could lead to their exoneration or help mitigate their sentence. The existing requirement for petitioners to prove they attempted to obtain materials from trial counsel before petitioning the court often proves burdensome and inequitable. This system makes it unnecessarily difficult for individuals to access the evidence that could demonstrate their innocence, leaving many incarcerated without the ability to seek justice.

″AB 1036 seeks to address this injustice by expanding access to discovery materials in a way that removes these barriers, giving all individuals convicted of felonies resulting in a sentence of one year or more the opportunity to obtain the evidence they need to challenge their conviction or reduce their sentence. By eliminating the requirement to first seek discovery from trial counsel, this bill opens access to the full range of materials that could potentially exonerate a person, including critical exculpatory evidence, newly discovered mitigating information, and even jury selection notes. These materials are often pivotal to revealing the truth in cases of wrongful conviction, and their availability is crucial for a just and fair process. The expansion of this access would ensure that individuals who were wrongfully convicted have a fair chance to challenge their convictions considering new evidence that could prove their innocence.″

Arguments in Opposition

According to the California District Attorneys Association, ″Current law provides several ways in which a person pursuing a postconviction writ of habeas corpus may request discovery. For example, any time a court has issued an order to show cause and thus has recognized that if the person′s claims are true, they may be entitled to relief, that same court may order discovery. This is true of any petition for writ of habeas corpus brought by any person, regardless of what they were convicted of or how much time they were ordered to serve.

″In addition, Penal Code section 1054.9 currently provides enhanced postconviction discovery rights to individuals convicted of a serious or violent felony and sentenced to 15 years or more. These individuals may obtain discovery when pursuing a postconviction writ of habeas corpus or a motion to vacate judgment. Though many discovery requests brought under section 1054.9 are made after a petition for writ of habeas is filed, the requests may be made before filing. AB 1036 would broaden these enhanced discovery rights to any person convicted of a felony who received a sentence of at least a year of incarceration.

″Section 1054.9 currently includes safeguards to protect against unnecessarily burdensome requests. For example, the law currently requires a showing that good faith efforts to obtain the materials from trial counsel have been made and were unsuccessful. Moreover, since 2019, defense counsel has been required to maintain discovery materials for this purpose for the duration of the client′s imprisonment. AB 1036 would eliminate the requirement that convicted individuals first seek copies of discovery that their defense lawyers have retained specifically for this purpose, and allow them to instead seek the discovery directly from the prosecution.

″Further, the bill broadens the definition of ″discovery materials″ in two ways. First, it requires discovery of materials that ″tend to negate guilt, mitigate the offense, or mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.″ This attempt to codify existing decisional authority is unnecessary. Prosecutors are already subject to an ongoing obligation upon prosecutors under Brady v. Maryland to supply convicted persons with material favorable evidence. In addition, Rule 3.8 of the California Rules of Professional Conduct requires prosecutors to disclose new, credible and material evidence that creates a reasonable likelihood the convicted person did not commit crime. CDAA believes that these standards do not require codification.

″The second way in which AB 1036 expands the definition of discovery is by including as discovery the prosecutor′s jury selection notes regardless of whether a colorable – or any claim – of misconduct in jury selection is made. Under current law a convicted person may receive the prosecutor′s jury selection notes if they can demonstrate a prima facie case of racial bias in jury selection. This standard recognizes that much of what is contained in a prosecutor′s jury selection notes may reflect upon trial strategy or contain other information that qualifies as core work product, and that disclosure of jury selection notes should not be ordered without good cause and judicial review.

″CDAA strongly objects to any amendment that would mandate disclosure of jury notes in all cases regardless of whether there is any evidence of bias or misconduct in jury selection. CDAA is deeply concerned that by expanding the pool of convicted persons who may seek pre-filing habeas discovery, by eliminating the requirement that a convicted person first seek copies from defense counsel, and by expanding the definition of discovery materials far beyond current discovery obligations, AB 1036 lacks sufficient safeguards to prevent misuse of discovery requests and may create opportunities for frivolous or abusive litigation that could overwhelm courts and prosecutors′ offices.″

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to post-conviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
2. Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill′s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill′s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

VOTES

ASM PUBLIC SAFETY: 7-0-2

YES: Schultz, Mark González, Haney, Harabedian, Nguyen, Ramos, Sharp-Collins

ABS, ABST OR NV: Alanis, Lackey

ASM APPROPRIATIONS: 12-2-1

YES: Wicks, Arambula, Calderon, Caloza, Elhawary, Fong, Mark González, Hart, Pacheco, Pellerin, Solache, Ta

NO: Dixon, Tangipa

ABS, ABST OR NV: Sanchez

UPDATED

VERSION: May 23, 2025

CONSULTANT: Kimberly Horiuchi / PUB. S. / (916) 319-3744 FN: 0000744

Date of Hearing: April 9, 2025

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 1036

Author:(Schultz) – As Introduced Ver:February 20, 2025

Urgency: No State Mandated Local Program: Yes Reimbursable: Yes

SUMMARY:

This bill increases access to post-conviction discovery for felony defendants.

Specifically, among other provisions, this bill:

1. Allows any defendant convicted of a felony and sentenced to at least one year of incarceration to petition the court for access to post-conviction discovery.
2. Expands the definition of “discovery materials” that must be provided to a defendant in post-conviction discovery ordered by a court.
3. Requires trial counsel to retain, for each defendant they represent who may be eligible for post-conviction discovery, a copy of the defendant’s files for the duration of their incarceration.

FISCAL EFFECT:

1. Costs (local funds, General Fund) of an unknown but potentially significant amount to district attorney offices and local law enforcement agencies to provide post-conviction discovery. This bill expands eligibility for post-conviction discovery to more defendants and requires production of more discovery materials to a defendant upon a court order. As a result, prosecutors and law enforcement agencies may experience higher workload to review, redact, and produce discovery materials. Actual costs will depend on the number of court orders granting access to post-conviction relief and the amount of workload needed to comply with each order, but total aggregate costs statewide may be in the hundreds of thousands to millions of dollars annually. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.
2. Costs (local funds, General Fund) of an unknown amount to public defender offices to comply with the bill’s record retention requirements. The bill permits attorneys to retain digital color copies of evidence rather than storing physical copies of files, so costs may be primarily for additional workload to scan the files for all clients who meet the bill’s new eligibility requirements. General Fund costs will depend on whether the duties imposed by this bill constitute a reimbursable state mandate, as determined by the Commission on State Mandates.

COMMENTS:

1. Purpose. According to the author:

California’s current post-conviction discovery laws create unnecessary barriers for incarcerated individuals seeking access to critical evidence that could prove their innocence or reduce their sentences…This restrictive process often leaves wrongfully convicted individuals without the evidence needed to challenge their convictions, disproportionately impacting marginalized communities and undermining trust in our justice system.

1. Background. Post-conviction discovery is the provision of materials and documents to a defendant after they have been convicted at trial and have exhausted their appeals. In recent years, the Legislature has enacted multiple bills to expand post-conviction resentencing, greatly increasing the pool of people who are entitled to petition the court to be resentenced or have their convictions vacated. The Penal Code governs the circumstances in which a court must order a prosecutor or law enforcement agency to provide specified discovery materials to a defendant pursuing post-conviction relief. With some exceptions, the court must generally issue such an order if: (a) the defendant was convicted of a serious or violent felony and sentenced to at least 15 years of incarceration; (b) the defendant has filed or is preparing to file a specified petition for post-conviction relief; and (c) the defendant shows a good faith but unsuccessful effort to obtain the discovery materials from the attorney who represented the defendant at trial.

This bill significantly expands access to postconviction discovery by allowing access for a defendant convicted of any felony resulting in at least one year of incarceration and eliminating the requirement that a defendant show they tried to obtain the materials from their trial attorney. The bill also expands the definition of discovery materials that must be provided to such a defendant, and requires trial counsel to retain copies of potentially disclosable files beginning in July 2026.

1. Related Legislation. AB 938 (Bonta) expands eligibility for vacatur relief for a person who committed a crime as the direct result of being a victim of human trafficking, intimate partner violence, or sexual violence. AB 938 is pending in this committee.

Analysis Prepared by: Annika Carlson / APPR. / (916) 319-2081

Date of Hearing:

Counsel: Kimberly Horiuchi

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Nick Schultz, Chair

ABPCA Bill Id:AB 1036

Author:(Schultz) – As Introduced Ver:February 20, 2025

SUMMARY:

Authorizes reasonable access, except as specified, to post-conviction discovery materials for felonies resulting in a sentence of one year of incarceration or more. Specifically, this bill:

1. Eliminates the requirement that a defendant demonstrate that efforts to obtain discovery from trial counsel were unsuccessful.
   
2. Expands the definition of “discovery materials” to include materials that tend to negate guilt, the office, the sentence, or otherwise are favorable or exculpatory to the defendants.
   
3. Specifies “discovery materials” also 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 jury selection notes.
   
4. Clarifies that a defendant’s trial counsel maintain a copy of a former client’s case file for any felony for which the defendant was sentenced for up to one year.
   
5. States, beginning January 1, 2026, the electronic copies are sufficient only if every item in the file is digitally copied in color and preserved.

EXISTING LAW:

1. Requires a court to order that discovery materials be produced to a defendant who has been convicted of a serious felony or a violent felony resulting in a sentence of 15 years 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, if the defendant has shown a good faith effort to obtain the materials from the criminal defense attorney who represented him or her at the time of the conviction. (Pen. Code, § 1054.9, subd. (a).)
   
2. Defines “discovery materials” in the post-conviction context as “materials in the possession of the prosecution and law enforcement authorities to which the defendant would have been entitled to at the time of trial.” (Pen. Code, § 1054.9, subd. (b).)
   
3. Provides that a court may allow the defendant access to physical evidence relating to the investigation, arrest, and prosecution of the defendant if he or she makes a showing of good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Pen. Code, § 1054.9, subd. (c).)
   
4. Provides that in response to a writ or motion, the court may order that the defendant be provided access to physical evidence for the purpose of examination, including, but not limited to, any physical evidence relating to the investigation, arrest, and prosecution of the defendant only upon a showing that there is good cause to believe that access to physical evidence is reasonably necessary to the defendant’s effort to obtain relief. (Pen. Code, § 1054.9, subd. (d).)
   
5. Provides that in criminal matters involving a conviction for a serious or violent felony resulting in a sentence of 15 years or more, trial counsel shall retain a copy of a former client’s files for the term of imprisonment. (Penal Code, § 1054.9 (g).)
   
6. Provides that specified changes to the postconviction discovery laws are intended to only apply prospectively. (Penal Code, § 1054.9 (j).)
   
7. Requires the prosecution to disclose the following evidence, if it is possessed by the prosecution or the prosecutor knows it is possessed by the investigating agencies:
   
8. Names and addresses of persons the prosecutor intends to call as witnesses at trial;
   
9. Statements made by all defendants;
   
10. All relevant real evidence obtained as part of the investigation of the charged offenses;
    
11. The existence of felony convictions of material witnesses whose credibility is likely to be critical to the outcome of the trial;
    
12. Any exculpatory evidence; and,
    
13. Relevant written or recorded statements. (Pen. Code, § 1054.1.)
    
14. States that before a party may seek court enforcement of any of the required disclosures, the party shall make an informal request of opposing counsel for desired materials and information. (Pen. Code, § 1054.5, subd. (b).)
    
15. States that if within 15 days of the informal request, opposing counsel fails to provide the materials and information requested, the party may seek a court order and upon a showing that the moving party complied with informal discovery, a court may make any order necessary to enforce compliance, including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure. (Pen. Code, § 1054.5, subd. (b).)
    
16. Provides that disclosure of the required materials and information shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure shall be denied, restricted or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. (Pen. Code, § 1054.7.)

FISCAL EFFECT:

Unknown

COMMENTS:

1. Author's Statement: According to the author, “California’s current post-conviction discovery laws create unnecessary barriers for incarcerated individuals seeking access to critical evidence that could prove their innocence or reduce their sentences. Under existing law, only those convicted of serious or violent felonies with sentences of 15 years or more can request discovery materials, and only after first attempting to obtain them from their trial counsel. This restrictive process often leaves wrongfully convicted individuals without the evidence needed to challenge their convictions, disproportionately impacting marginalized communities and undermining trust in our justice system.

“AB 1036 seeks to address these inequities by expanding access to post-conviction discovery to all individuals convicted of felonies with sentences of one year or more. It eliminates the burdensome requirement of first seeking discovery from trial counsel and broadens the definition of “discovery materials” to include exculpatory and mitigating evidence and jury selection notes. Additionally, this bill ensures transparency and accountability by requiring trial counsel to maintain digital color copies of case files, preventing the loss of crucial records.

“By modernizing California’s post-conviction discovery laws, AB 1036 enhances fairness in our criminal legal system and helps correct wrongful convictions more efficiently. Providing broader access to evidence will not only prevent innocent individuals from remaining incarcerated but will also strengthen public confidence in the integrity of our legal system. AB 1036 ensures that truth and fairness remain at the core of our system, making California safer and more just for all.

1. Discovery in Criminal Trials: In 1963, the U.S. Supreme Court held that the constitutional principle of due process requires prosecutors to ensure the defense receives all evidence that is both favorable to the accused and material to their guilt or punishment. (Brady v. Maryland (hereafter Brady) (1963) 373 U.S. 831 87-88; U.S. v. Bagley (hereafter Bagley) (1985) 473 U.S. 667, 674-675.) For evidence to be considered favorable, it must help the defendant or hurt the prosecution, such as by impeachment of the prosecutor’s witness. (In re Miranda (2008) 43 Cal.4th 541, 575.) For evidence to be material, there must be a reasonable probability that disclosure of the evidence would have led to a different outcome in a proceeding. (Turner v. U.S. (2007) 137 S. Ct. 1885, 1893.) This duty imposed upon the prosecutor applies whether or not a defendant requests the evidence, and whether or not the prosecutor intentionally or inadvertently did not disclose the evidence. (Brady, supra, 373 U.S. at 87-88.) Such evidence is generally referred to as Brady evidence and failure to turn it over will result in a verdict being overturned. (People v. Uribe (2008) 162 Cal.App.4th 1457, 1482-83.)
   
   In 1990, California voters approved Proposition 115 (hereafter Prop 115), which, among other things, established a statutory framework of reciprocal discovery whereby both the prosecution and defense are required to turn over specified information and materials such as the names and addresses of witnesses that will be called to testify at trial, any real evidence, and any exculpatory evidence. (Pen. Code, § 1054 et seq.) Generally, discovery must be given to opposing counsel as soon as possible but no later than 15 calendar days after they are requested. (Pen. Code, § 1054.5, sub. (b).) Additionally, regardless of a request, the law requires discovery to be given to opposing counsel at least 30 calendar days before trial, unless good cause is shown why disclosure should be denied, restricted or deferred. (Pen. Code, § 1054.7.) Failure to disclose evidence under Prop 115’s statutory framework can lead to court sanctions such as contempt proceedings, limiting the testimony of a witness, continuing a matter, and informing the jury of any failure or refusal to timely disclose. (Pen. Code, § 1054.5, subd. (b).) However, a court may only prohibit the testimony of a witness when all other sanctions have been exhausted, and a court can never dismiss a charge unless it is required to do so by the Constitution of the U.S. (Pen. Code, § 1054.5, subd. (c).)
   
2. Post-Conviction Discovery: Existing law generally allows for limited discovery in post-conviction proceedings like petitions for habeas corpus or motions to vacate. Penal Code section 1054.9 allows for reasonable access to any discovery available to the defendant at the time of trial, but only in cases where the defendant was sentenced to 15 years or more on a serious or violent felony. However, the defendant must demonstrate that efforts to obtain the trial attorney’s file were unsuccessful. Defense attorneys must retain client files when the person was incarcerated for more than 15 years on a serious or violent felony for the period of the person’s confinement. (Pen. Code, § 1054.9, subd. (a).) However, California’s criminal discovery statutes do not impose any overarching duty for the prosecutor to retain evidence for purposes of post-discovery disputes. (People v. Coles (2005) 134 Cal. App. 4th 1049, 1055–56.) Instead, the preservation duties imposed by prosecutors and law enforcement agencies exist in a patchwork of statutes.^[1]

In People v. Superior Court (Morales) (2017) 2 Cal.5th 523, 531–32, the California Supreme Court held that courts may issue orders requiring the preservation of items specifically discoverable by statute. (Ibid. acknowledging that Penal Code section 1054.9 carves out particular categories of material as subject to postconviction discovery, and nothing in its language or the legislative history suggests the legislature intended the statute to serve as a predicate for more wide-ranging postconviction discovery.].)

Additionally, Penal Code section 1054.9, subdivision (b) only allows discovery of materials to which the defendant would have been entitled at time of trial; specifically, the materials came within the prosecution’s constitutional or statutory duty to disclose. (See Kennedy v. Superior Court (Colusa County) (2006) 145 Cal. App. 4th 359; Barnett v. Superior Court (Butte County) (2007) ___Cal.App.4th___ 2007 Cal. App. LEXIS 1, at *5 [Petitioner, a death row inmate, was not entitled to the home addresses of law enforcement witnesses, as he would not have been entitled to such information at the time of trial.].)

This bill proposes to allow for post-conviction discovery in any felony case – not just serious and violent felonies for which the defendant is sentenced to 15 years or more – and clarifies that discoverable materials includes any evidence that may be available to the defendant today, regardless of whether it would have been available at the time of trial. Finally, this bill proposes to require criminal defense attorneys to retain records for any felony resulting in a sentence of a year or more for the term of the defendant’s incarceration. Over the past ten years, California has enacted several post-conviction remedies, including the opportunity for re-sentencing if a person is the defendant suffered racial bias during their case, suffered a sentence that is disproportionately harsh giving the facts, was under the age of 18 at the time of sentencing, where it is in the interests of justice, and re-sentencing in gang cases where there was insufficient evidence of gang involvement. (See Pen. Code, §§ 1109, 1172.1, 1385, and 1437.) Given the plethora of new opportunities for post-conviction relief, this bill requires an opportunity for post-conviction discovery beyond just Brady material at the time of trial. For instance, the Racial Justice Act (Pen. Code, § 1437) confronts the possibility that a defendant suffered racial bias in their charge, conviction, or sentence. Therefore, something more than just Brady material may be necessary to demonstrate the bias.

However, this bill specifically allows access to “jury selection notes” presumably prepared by the prosecuting attorney in determining which jurors to select and which to strike using a peremptory challenge. This information may be protected as attorney work product.

“Work produced by an attorney's agents and consultants, as well as the attorney's own work product, is protected by the attorney work-product doctrine. The attorney is the holder of this privilege. A party asserting the privilege must prove the preliminary facts to show that the privilege applies. When a party asserts the absolute privilege, the court cannot require the material to be produced for in camera review to evaluate the claim of privilege, but the court can require production for in camera review when the party asserts only the qualified privilege (Evid. Code, § 915).” Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, 891; Mitchell v. Superior Court (1984) 37 Cal.3d 591, 599 [holding the attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 400 years.].)

This information is protected for good reason. “Its fundamental purpose … is to safeguard the confidential relationship between clients and their attorneys so as to promote full and [frank] discussion of the facts and tactics surrounding individual legal matters. … the public policy fostered by the privilege seeks to insure the right of every person to freely and fully confer and confide in one having knowledge of the law, and skilled in its practice, in order that the former may have adequate advice and a proper defense.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 Cal.5^th 282, 292 (Los Angeles County).)

The author may wish to consider removing access to jury selection notes as it could be viewed as invading the attorney work product. If a party alleges such information is protected absolutely, not even in camera review would be appropriate.

1. Argument in Support: According to Californians for Safety of Justice: This bill ensures greater fairness in the post-conviction process by allowing individuals convicted of felonies with sentences of one year or more to obtain crucial discovery materials from prosecutors and law enforcement. AB 1036 removes the requirement to seek discovery from trial counsel first and expands the definition of "discovery materials" to include exculpatory, mitigating evidence, and jury selection notes. These changes will modernize and enhance California's post-conviction statutes, ensuring a more efficient and fair justice system, while addressing wrongful convictions.

In California, the current law presents significant barriers to justice by limiting access to discovery materials that could prove a person’s innocence. Many wrongfully convicted individuals are unable to access critical evidence that could lead to their exoneration or help mitigate their sentence. The existing requirement for petitioners to prove they attempted to obtain materials from trial counsel before petitioning the court often proves burdensome and inequitable. This system makes it unnecessarily difficult for individuals to access the evidence that could demonstrate their innocence, leaving many incarcerated without the ability to seek justice.

AB 1036 seeks to address this injustice by expanding access to discovery materials in a way that removes these barriers, giving all individuals convicted of felonies resulting in a sentence of one year or more the opportunity to obtain the evidence they need to challenge their conviction or reduce their sentence. By eliminating the requirement to first seek discovery from trial counsel, this bill opens access to the full range of materials that could potentially exonerate a person, including critical exculpatory evidence, newly discovered mitigating information, and even jury selection notes. These materials are often pivotal to revealing the truth in cases of wrongful conviction, and their availability is crucial for a just and fair process. The expansion of this access would ensure that individuals who were wrongfully convicted have a fair chance to challenge their convictions considering new evidence that could prove their innocence.

1. Argument in Opposition: According to the California District Attorneys Association:

Current law provides several ways in which a person pursuing a postconviction writ of habeas corpus may request discovery. For example, any time a court has issued an order to show cause and thus has recognized that if the person’s claims are true, they may be entitled to relief, that same court may order discovery. This is true of any petition for writ of habeas corpus brought by any person, regardless of what they were convicted of or how much time they were ordered to serve.

In addition, Penal Code section 1054.9 currently provides enhanced postconviction discovery rights to individuals convicted of a serious or violent felony and sentenced to 15 years or more. These individuals may obtain discovery when pursuing a postconviction writ of habeas corpus or a motion to vacate judgment. Though many discovery requests brought under section 1054.9 are made after a petition for writ of habeas is filed, the requests may be made before filing. AB 1036 would broaden these enhanced discovery rights to any person convicted of a felony who received a sentence of at least a year of incarceration.

Section 1054.9 currently includes safeguards to protect against unnecessarily burdensome requests. For example, the law currently requires a showing that good faith efforts to obtain the materials from trial counsel have been made and were unsuccessful. Moreover, since 2019, defense counsel has been required to maintain discovery materials for this purpose for the duration of the client’s imprisonment. AB 1036 would eliminate the requirement that convicted individuals first seek copies of discovery that their defense lawyers have retained specifically for this purpose, and allow them to instead seek the discovery directly from the prosecution.

Further, the bill broadens the definition of “discovery materials” in two ways. First, it requires discovery of materials that “tend to negate guilt, mitigate the offense, or mitigate the sentence, or otherwise are favorable or exculpatory to the defendant.” This attempt to codify existing decisional authority is unnecessary. Prosecutors are already subject to an ongoing obligation upon prosecutors under Brady v. Maryland to supply convicted persons with material favorable evidence. In addition, Rule 3.8 of the California Rules of Professional Conduct requires prosecutors to disclose new, credible and material evidence that creates a reasonable likelihood the convicted person did not commit crime. CDAA believes that these standards do not require codification.

The second way in which AB 1036 expands the definition of discovery is by including as discovery the prosecutor’s jury selection notes regardless of whether a colorable – or any claim – of misconduct in jury selection is made. Under current law a convicted person may receive the prosecutor’s jury selection notes if they can demonstrate a prima facie case of racial bias in jury selection. This standard recognizes that much of what is contained in a prosecutor’s jury selection notes may reflect upon trial strategy or contain other information that qualifies as core work product, and that disclosure of jury selection notes should not be ordered without good cause and judicial review.

CDAA strongly objects to any amendment that would mandate disclosure of jury notes in all cases regardless of whether there is any evidence of bias or misconduct in jury selection. CDAA is deeply concerned that by expanding the pool of convicted persons who may seek pre-filing habeas discovery, by eliminating the requirement that a convicted person first seek copies from defense counsel, and by expanding the definition of discovery materials far beyond current discovery obligations, AB 1036 lacks sufficient safeguards to prevent misuse of discovery requests and may create opportunities for frivolous or abusive litigation that could overwhelm courts and prosecutors’ offices.

1. Related Legislation: AB 1071 (Kalra) makes changes to the Racial Justice Act pertaining to remedies and discovery procedures. AB 1071 is pending in this Committee.
   
2. Prior Legislation:
   
   1. AB 124 (Kamlager), Chapter 695, Statutes of 2021, in relevant part, required courts to consider whether specified trauma to a defendant and other factors contributed to the commission of an offense when making sentencing and resentencing determinations.
      
   2. AB 333 (Kamlager), Chapter 699, Statutes of 2021 makes various changes to the California Street Terrorism Enforcement and Prevention (STEP) Act including removing specified offenses that qualify under a “pattern of criminal activity” and requiring bifurcation of gang-related prosecutions from prosecutions that are not gang-related.
      
   3. AB 1540 (Ting), Chapter 719, Statutes of 2021, required the court to provide counsel for the defendant when there is recommendation from CDCR, the BPH, the sheriff, or the prosecuting agency, to recall an inmate's sentence and resentence that inmate to a lesser sentence. AB 1540 also created a presumption favoring recall and resentencing, as specified, when the recommendation has been made by one of these agencies.
      
   4. AB 2942 (Ting), Chapter 1001, Statutes of 2018, allowed the district attorney of the county where a defendant was convicted and sentenced to make a recommendation that the court recall and resentence the defendant.
      

REGISTERED SUPPORT / OPPOSITION:

Support

ACLU California Action
All of Us or None Los Angeles
California Attorneys for Criminal Justice
California Coalition of Women Prisoners
California Innocence Coalition
California Public Defenders Association (CPDA)
Californians for Safety and Justice (CSJ)
Communities United for Restorative Youth Justice (CURYJ)
Courage California
Ella Baker Center for Human Rights
Initiate Justice
Justice2jobs Coalition
LA Defensa
Legal Services for Prisoners With Children
Prison Ftio
Restoring Hope California
Rubicon Programs
San Francisco Public Defender
Secure Justice
Smart Justice California, a Project of Tides Advocacy

Oppose

California District Attorneys Association

Analysis Prepared by:

Kimberly Horiuchi / PUB. S. / (916) 319-3744

1. See Pen. Code, § 1405; Pen. Code, § 1054.1 ↑