How This Article Came About.
I was placing a “Gary note” for a summary I was writing on an unpublished opinion filed recently, but won’t be posted on my summary for, well, maybe a couple ‘nother months. I wasn’t sure whether I was going to use the case as a summary, because it didn’t really constitute a victory, even under my very liberal connotation for the term. But it may be important to trial counsel, and as soon as July 1, 2026. I will probably post the summary when it comes up to the top of the chronological list, but I figured it’s worthy of mention now.
Get On With It, Gary!
It pertains to Penal Code section 1054.9, whose impact is mainly on the process for post-conviction discovery, but it carries a new obligation on either ALL or MANY (aye, that’s the question!) trial court attorneys whose clients are punished for felonies. (Well, the section used to impose the requirement but only where the defendant has been sentenced to a term of at least 15 years. That minimum has been eliminated. But read on.)
Here is Penal Code section 1054.9, subdivision (g), the focus of this article:
“(g) 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 Have To Do WHAT?
Sneak preview: Does the section require trial counsel to retain a copy the client’s file in every single felony case? Or does the requirement extend to only those felony cases in which a defendant was sent to the California Department of Corrections and Rehabilitation, and then, only for the term of incarceration? (Classic state prison.) Or does it also apply to felons sentenced under Realignment to what would formerly have been “prison terms” but are served in local county jails under Penal Code section 1170, subdivision (h)?
Say Again?
Equivocal answer: If the statute is interpreted literally and is determined not to be ambiguous (by interpreting the final sentence of subdivision (g) only in context of its first sentence), then it would seem to apply to only those committed to CDCR (classic state prison). If the section is deemed ambiguous (because the final sentence does not seem to be limited to those mentioned in the first sentence), then the appellate court will have to resolve the ambiguity, most likely by examining the legislative history to determine the Legislature’s intent. But going back to “if the statute is interpreted literally and is determined not to be ambiguous” (by determining that the first sentence has a meaning and the last sentence has a different meaning but they are nonetheless reconcilable), well, then, I’m not sure what the duty is.
WWGD?*
I know what I would do, but that’s only because when I want to be in compliance with a rule, I would much rather do far more than I’m required by the rule to do than to fall short of what it requires. Until it was clarified, I would keep a copy of all my felony clients’ files, whether sent to prison or to county jail or even if just granted probation with no time ordered as a condition. That is not a recommendation. That is merely a recitation of what I would do.
That’s The Spirit!
The spirit behind subdivision (g) is to make it easy for a defendant to get some sort of relief from a judgment imposed some time in the past. One can never predict what legislation will be enacted down the road that might favor the client. In the 1980s and maybe especially the 1990s, who would have imagined that a felon denied probation could at worst be sentenced to local confinement, and even then have a split sentence (maybe not having to serve the whole period ordered)? Who would have predicted the Three Strikes Reform Act of 2012? Who would have predicted Proposition 47? Who would have dreamed that a getaway driver could no longer be considered guilty of felony murder except under seriously culpable circumstances?
Defense attorneys may have dreamed of those things (and obviously, some defense-minded folks DID, in order to get the ball rolling on the amelioration). But the era was such that it made them seem like pipe dreams. (Whatever a pipe dream is.)
And many’s the time trial counsel has had to reconstruct “what happened back then” in order to demonstrate that the client is eligible for relief. Having access to trial counsel’s file from years earlier can be critical for new counsel seeking to get some new ameliorative benefit for the client, or even to revisit the basis of the conviction under its law at that time, because new evidence has come to light. Think of the incidents we have all read about from time to time, where a previously-respected forensic analyst–or even the employing lab–is discovered to have been perhaps less reliable than warranted at the time of the conviction. Or where questionable practices of police agencies came to light years later. It doesn’t necessarily take new legislation to trigger a need for the defendant to get a thorough review of the evidence on which the conviction was based long ago.
But Don’t We Already?
There is likely already a duty for the attorney to maintain the client’s file, because the operative word is “the client’s file.” Unlike the medical profession, where apparently the medical file belongs to the doctor, not the patient, the files attorneys keep belong to the clients, at least to the extent that the file contains information pertinent to the client’s cause. Maybe it doesn’t include administrative materials related to the case but irrelevant to the merits of the case, I don’t know. I just know that if a client ever asks for his or her file, the attorney is required to provide everything related to the client’s case that might assist the client in further proceedings.
Here’s what the California Rules of Professional Conduct, rule 1.16(e)(1) says, upon the termination of a representation for any reason: Subject to any applicable protective order, non-disclosure agreement, statute or regulation, the lawyer promptly shall release to the client, at the request of the client, all client materials and property. “Client materials and property” includes correspondence, pleadings, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible, electronic or other form, and other items reasonably necessary to the client’s representation, whether the client has paid for them or not.
Permissive vs. Directory.
But section 1065.9 makes it a statutory duty in whatever cases it applies to, and even a little more. That is, under the State Bar professional responsibility approach, the attorney has to turn over to the client the files on the client’s request. The attorney is permitted to keep a copy at the attorney’s expense (implying that the attorney cannot charge the client for the handing off of the file, and if the attorney wants to make a copy, that’ll be at the attorney’s expense), but by “permitted,” it implies “not required” to make a copy. Under section 1065.9, if the client falls into the class it applies to, the attorney MUST KEEP A COPY. And in the format specified.
Tell Me More.
Though the summary discusses the discovery process and review of the court’s denial, there isn’t much to elucidate the extent of counsel’s obligation. The appellate case concluded that the denial of discovery under section 1054.9 was not an appealable order, but the denial may be reviewed by petition for writ of mandamus. It exercised its discretion to treat the appeal as a petition for writ of mandate, and proceeded to affirm the action taken (i.e., denial) by the lower court. So it didn’t touch on the questions I have about the section.
To me, subdivision (g) is a bit ambiguous, because the first sentence refers trial counsel having to retain a copy of their client’s files for the term of that defendant’s imprisonment in cases resulting in a CDCR prison sentence. But the last sentence could be read as requiring counsel to retain physical files and digital color copies of all evidence in ALL felony convictions, with no mention of a limitation to those where the client has been committed to CDCR.
Looking At Some Legislative Analyses.
Here’s how the Legislative Counsel’s Digest expresses it: “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.”
First There Was A Mountain, Then ….
But the final Assembly Floor Analysis dated 9/12/2025 states, in part, under “Major Provisions: 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.” I don’t see a reference to county jail in the first portion of the subdivision, only those to CDCR, which is state prison, not county jail. Does that sentence then contemplate that the final sentence that ” … trial counsel shall begin retaining their physical files and digital color copies of evidence for all felony convictions…”?
On page 2 of that Assembly Floor Analysis dated 9/12/2025, under “According to the Author,” it states, “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.” There is no reference or limitation to sentences to the California Department of Corrections and Rehabilitation. Once Realignment was enacted effective for all sentenced on or after 10/1/2011 (shifting incarceration on low level felonies to local county facilities instead of state prison), many felony sentences are served in county jails, not in the custody of the CDCR.
Then There Was No Mountain ….
The Senate Floor Analysis of 9/2/2025 characterizes it as “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.” So the Senate analysis does not refer to any county jail sentence, and it seems to read into the last sentence that the duty on trial counsel is to retain the files only for those convictions resulting in incarceration in state prison, and does not seem as expansive to ALL convictions as the last sentence of subdivision (g) might be interpreted. I don’t have an answer.
In The Big Inning ….
According to the first Bill Analysis by the Assembly Public Safety Committee, submitted 3/31/2025, this bill (as it was first introduced, before amendments) “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 [sic] 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.”
On pages 4 and 5, the author states, “Finally, this bill proposes to require criminal defense attorneys to retain records for any felony resulting in a sentence of a year or more [sic] 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, secs. 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, sec. 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.
Darwin and Evolution At Work?
So it seems that the bill contemplated originally that trial counsel retain copies of the file if the client was sentenced to one year or more. When the bill was introduced, it read “for a felony resulting in a sentence of one year of incarceration or more.” That was subsequently amended to “incarceration in the Department of Corrections and Rehabilitation,” which suggests the subdivision may not apply to anyone sentenced on a felony to incarceration in county jail under section 1170(h) (commonly referred to as “under realignment”) no matter how long the term. In the Senate Public Safety Committee analysis of 6/30/2025, it does state at page 4, “This bill allows for post-conviction discovery in any felony case resulting in incarceration in state prison ….” So at THAT stage, the author of the analysis had “state prison” in mind as an important eligibility facrtor.
The Long And The Short And The Tall.
The long and the short of it is, I don’t know what the answer is. I see what the statute says in subdivision (g), but I get mixed senses when I read the legislative analyses. Does it apply to ONLY those whose sentences are served in facilities under the jurisdiction of the Department of Corrections and Rehabilitation?
That seems to be the clarity in the first sentence of section 1054.9(g), and the reference to CDCR first appeared in the amended version passed by the Senate on 8/29/2026. Or does it apply to ALL felony convictions (as of July 1, 2026), the language in the last sentence? Does it NOT apply to felons whose terms are served in the local county jails under Realignment? Is there a legitimate rationale for providing the requirement if a defendant is sentenced to state prison for two years (state prisons falling under the oversight of the California Department of Corrections and Rehabilitation) but not if a defendant was sentenced to, say, eight years in the county jail for a different felony governed by section 1170, subdivision (h)?
If It Is A Distinction With A Difference …
For answers to these questions and more, you probably need to ask someone else, for I’m certainly confused. If this is a question that needs a briefable answer, you probably should obtain a legislative history fully researched by and available through any of the reputable legislative research firms in the state. I have my favorite, but I’m not going to identify it here in the blog, because I have to confess that it’s my favorite because I’m a friend of its founders and have used the firm’s services over the years with satisfaction. But I have not used any of its competitors to see whether one is any better than another. I have my bias, but I’m not educated enough to validate it. The companies that do provide legislative intent research have access to a huge amount of documents that are not posted on the Legislature’s website. Or at least, anywhere that I can find it all.
*”What Would Gary Do?”
