Error and/or relief
You might want to draw a cuppa joe for this one. It’s probably less related to criminal law practice than it is to law office management with regard to criminal clients. The “Eighth Holding” is not a holding in the opinion, but some speculative observations by me. This case presented an unusual set of circumstances involving a request of a defendant for his prior attorney to provide him discovery under the auspices of Penal Code section 1054.9. The outcome of the litigation is not so important (but attorneys, remember that I will send you the actual opinion to your State Bar email address if you ask me for it). But it has some interesting statements on the ethical obligation to turn over a client’s file (something we probably all knew already). And now for something different: Effective January 1, 2026, the trial attorney must retain a copy of the client’s file (for the entire term of the defendant’s incarceration) for any client whose conviction of a felony resulted in incarceration in the Department of Corrections and Rehabilitation. What’s new is that previously it applied only to those whose convictions were for serious or violent felonies resulting in a sentence greater than 15 years. (No mention of actual incarceration being required. It’s possible that was simply understood. I haven’t researched that aspect, and as of 1/1/26, I don’t have to.) Instead, the amended version pertains to those convicted of any felony resulting in incarceration in the Department of Corrections and Rehabilitation for a term of any length.
First Holding:
Counsel has a duty to turn over client’s file to client.
Authority:
State Bar proposed opinion 19-0004 (duty to retain files while client is alive)
State Bar Rules of Professional Conduct rule 1.16
Second Holding:
As of 1/1/26, Penal Code section 1054.9 was be amended to expand its application to any defendant sentenced to a prison term, eliminate the requirement that the defendant first attempt to obtain discovery materials from their attorneys, and broaden the definition of discovery materials to include materials a defendant would be entitled to today (even if not discoverable at the time of the original trial), exculpatory evidence, and the prosecutor’s jury selection notes. Trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment.
Authority:
PEN 1054.9
Barnett v. Superior Court (2010) 50 Cal.4th 890
People v. Superior Court (Morales) (2017) 2 Cal.5th 523
Satele v. Superior Court (2019) 7 Cal.5th 852
Third Holding:
Review of nonappealable order is by petition for writ of mandate.
Authority:
In re Steele (2004) 32 Cal.4th 682, 692 [after the trial court has ruled, either party may challenge that ruling by a petition for writ of mandate in the Court of Appeal]
Fourth Holding:
The appellate Court can treat the appellate opening brief as a petition for writ of mandate.
Authority:
Olson v. Cory (1983) 35 Cal.3d 390, 401
Shrewsbury Management Inc. v. Superior Court (2019) 32 Cal.App.5th 1213, 1221–1222
Fifth Holding:
Section 1054.9 was not intended to provide an avenue for a defendant to compel client files from defense counsel.
Authority:
Legislative history, AB 1987 in 2018
Sixth Holding:
The client can complain to the State Bar regarding lack of communication and effort to get files or can sue the attorney.
Authority:
Rose v. State Bar (1989) 49 Cal.3d 646, 653–655
White v. Molfetta (2021) 64 Cal.App.5th 628
Seventh Holding:
Section 1054.9’s purpose is to ensure defendant can compel discovery only from the prosecution, and imposes only a file retention duty on defense counsel.
Authority:
PEN 1054.9
Eighth Holding:
Well, not exactly a holding in the opinion, but here’s exactly what 1054.9(g) says effective January 1, 2026: “In criminal matters involving a conviction for a felony resulting in incarceration in the Department of Corrections and Rehabilitation, trial counsel shall retain a copy of a former client’s files for the term of that client’s imprisonment. An electronic copy is sufficient only if every item in the file is digitally copied 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.” I was curious about the last sentence, as it says “for all felony convictions on or after July 1, 2026.”
That sentence makes no reference to “resulting in incarceration [in CDCR].” So I wondered whether that sentence was intended to be more expansive, or it simply assumed that the only convictions of concern are those mentioned in the first sentence of subdivision (g) (i.e., those resulting in incarceration in CDCR). I looked at the latest Senate Analysis prior to the signing of AB 1036. It seems reasonably clear that the Senate was contemplating retention only of those convictions resulting in CDCR incarceration, despite the lack of reference in the sentence I was curious about. That analysis says, in pertinent part, “[This Bill:] 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.”
The final Assembly Analysis is not laid out quite the same way, but it does make reference to the report by the Senate Committee on Appropriations regarding costs, and characterizes it as follows: “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.”
Although that section pertained to public defenders (because it was in the context of state-mandated costs incurred by government entities), the language “all clients who meet the bill’s new eligibility requirements” is telling. The only eligibility requirements are (a) felony conviction and (b) resulting in CDCR incarceration.
Authority:
Not much of one, Just Gary’s Brain