AB 1036 gives people convicted of felonies who served time in the Department of Corrections and Rehabilitation a court-ordered route to obtain discovery held by prosecutors or law enforcement when trial counsel cannot or will not provide it. The bill defines a broad category of “discovery materials” — including materials that would be discoverable if the case were tried today and the prosecution’s jury selection notes — and allows courts to order access to those materials for use in postconviction writs or motions.
The measure also permits courts to grant access to physical evidence when a defendant shows good cause, makes the defendant responsible for actual copying or examination costs, and imposes a new retention duty on trial counsel (physical files and color digital copies) for the duration of a client’s imprisonment, with those retention duties effective for felony convictions committed on or after July 1, 2026. These changes expand postconviction fact-finding but redistribute administrative, storage, and procedural burdens across prosecutors, defense counsel, and courts.
At a Glance
What It Does
The bill requires courts to order reasonable access to prosecution and law-enforcement discovery for eligible incarcerated-felon petitioners when they show they tried and failed to get the materials from trial counsel. It treats discovery as including materials discoverable today and the prosecution’s jury selection notes while preserving limited carve-outs and an in camera/redaction process for sensitive material.
Who It Affects
People serving or formerly serving felony incarceration in CDCR, postconviction counsel, district attorney offices and law enforcement agencies that hold evidence, and private or public trial counsel who must retain client files and create color digital copies.
Why It Matters
This creates a statutory enforcement route to reach prosecution-held files that previously could be practically inaccessible to defendants once trial counsel’s copies proved unavailable. That increases opportunities to uncover exculpatory or mitigating evidence but also imposes new record-keeping, review, and cost-allocation challenges on prosecutors, defenders, and courts.
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What This Bill Actually Does
The bill sets up a litigation trigger: when a person convicted of a felony resulting in CDCR incarceration files, is preparing to file, or prosecutes a habeas writ or motion to vacate, and can show they made good-faith efforts to get discovery from their trial counsel but did not succeed, the court must (subject to carve-outs) order the prosecution to provide reasonable access to specified discovery materials. The statute focuses on discovery in the hands of the prosecution and law enforcement that either the defendant would have been entitled to at trial or that tends to negate guilt, mitigate offense or sentence, or otherwise favors the defendant.
“Discovery materials” is defined expansively. It includes materials that would be discoverable under today’s rules even if they were not discoverable at the time of the original trial, and it explicitly lists the prosecution’s jury selection notes.
The prosecution is treated as the prosecuting agency and counsel responding in habeas; the statute does not, however, create a separate duty for prosecutors to hunt for new evidence, though courts retain the power to direct an investigation when appropriate.The bill provides procedural guardrails. Prosecutors who claim good cause to withhold jury selection notes must make a foundational proffer describing how the material bears on case strategy; the court can then review notes in camera and order redactions.
The statute also says the absence of peremptory challenges by the prosecution during jury selection is itself good cause to withhold those notes. For physical evidence, the court may permit examination only on a showing of good cause that access is reasonably necessary to seek relief; the bill does not replace the separate statutory procedures for postconviction DNA testing.Costs and retention are practical levers in the law.
Defendants must bear or reimburse the actual costs of copying or examination. Trial counsel must retain a client’s file for the term of the client’s imprisonment; a digital copy is acceptable only if every item is digitally copied in color and preserved.
Where the retention requirement imposes new duties, counsel must start preserving physical files and color digital copies for felony convictions on or after July 1, 2026. The bill stops short of imposing new retention obligations beyond what other laws or orders already require.
The Five Things You Need to Know
The statute applies only to felony convictions that resulted in incarceration in the California Department of Corrections and Rehabilitation.
If a petitioner shows good-faith efforts to obtain files from trial counsel and failed, the court must order reasonable access to prosecution- and law-enforcement-held discovery unless an enumerated exception applies.
“Discovery materials” explicitly include materials that would be discoverable today and the prosecution’s jury selection notes; prosecutors can seek to shield those notes by proffering good cause and the court may perform an in camera review and redact.
Access to physical evidence is discretionary and requires a separate showing of good cause that the examination is reasonably necessary; Section 1405’s DNA-testing procedures remain the exclusive route for postconviction DNA testing.
Trial counsel must retain a former client’s files for the duration of the client’s imprisonment and create color digital copies where required, with new retention duties beginning for felony convictions on or after July 1, 2026; defendants pay actual copying/examination costs.
Section-by-Section Breakdown
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Court-ordered access to prosecution-held discovery after counsel failure
This provision creates the baseline remedy: when an eligible petitioner demonstrates good-faith attempts to obtain discovery from trial counsel without success, the court is required—subject to later subdivisions and protective orders—to order reasonable access to prosecution and law-enforcement discovery. The practical implication is that courts become the enforcement mechanism for securing material that may be outside a defendant’s reach because trial counsel’s copies are missing or incomplete.
Discretion after prior grant for noncapital sentences
If the sentence was not death or life without parole, and the court has previously granted discovery under this section, the court may deny subsequent discovery requests in its discretion. Requests made under this subdivision must state whether a prior order was granted. This limits repeat litigation in ordinary cases but leaves judges broad leeway to balance finality against the need for further review.
Broad definition of ‘discovery materials’ and limits on prosecutorial search obligations
The statute defines discovery to include anything the defendant would have been entitled to at trial plus items that would be discoverable today—an expansion from strictly retroactive discovery regimes. It also explicitly covers materials that tend to negate guilt or mitigate punishment. Importantly, the bill does not compel prosecutors to perform a new investigative sweep for undiscovered materials; courts, however, may still order an investigation when circumstances justify it.
Jury selection notes: proffer, in camera review, and a peremptory-challenge shield
Prosecutors who want to withhold jury selection notes must provide a foundational proffer describing how the notes relate to case strategy. If the court finds good cause, it will review the notes in camera and can order redactions. The statute adds a specific protection: if the prosecution did not exercise peremptory challenges, that fact alone constitutes good cause to withhold jury notes, a rule that materially constrains defendants’ ability to access those records.
Physical evidence access standard, cost allocation, and retention limits
Courts may permit examination of physical evidence only upon a showing of good cause that access is reasonably necessary to obtain relief, and the statute carves out that it does not provide an alternative path to statutory DNA-testing procedures in Section 1405. The law places the actual costs of copying or examination on the defendant and clarifies that the section does not create new obligations to retain materials beyond existing legal or court-ordered requirements.
Trial counsel file-retention and digital color-copy requirement
Trial counsel must retain a former client’s file for the duration of that client’s imprisonment; an electronic copy counts only if every item is digitally preserved in color. New retention duties take effect for felony convictions on or after July 1, 2026. This turns file preservation into an ongoing operational requirement for defense counsel and establishes a technical standard for acceptable electronic copies.
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Who Benefits
- Incarcerated and formerly incarcerated felony defendants who can demonstrate they tried and failed to get records from trial counsel — the statute gives them a judicial route to obtain potentially exculpatory or mitigating materials previously inaccessible.
- Postconviction attorneys and innocence organizations — the bill creates a clearer, court-enforceable mechanism to compel prosecution-held discovery for investigation and litigation.
- Judges and courts seeking factual completeness in postconviction review — the statute provides an evidentiary tool to resolve claims that hinge on materials outside defense files.
- Clients of retained defense counsel going forward — the retention requirement increases the likelihood that future clients will have their files preserved for the duration of any incarceration, reducing later obstacles to postconviction relief.
Who Bears the Cost
- Prosecutors’ offices and law-enforcement agencies — they must locate, review, and produce or host access to materials, and conduct in camera reviews or petitions to withhold materials, increasing staff time and storage burdens.
- Trial counsel (private and public defenders) — new obligations to retain physical files and produce color digital copies will raise storage, scanning, and archival costs as well as administrative complexity.
- Defendants seeking discovery — the law requires them to bear or reimburse the actual costs of copying or examination, potentially deterring resource-constrained petitioners from pursuing material.
- Courts — judges and clerks will face additional case management, in camera review duties, and disputes over redaction claims, which may stretch already limited judicial resources.
Key Issues
The Core Tension
The central dilemma is between correcting wrongful convictions by expanding access to prosecution-held materials and preserving finality and manageable public fiscal burdens: giving courts a robust tool to pry loose potentially exculpatory evidence advances accuracy, but it also creates administrative costs, procedural complexity, and new duties for defense and prosecuting offices that may be difficult to fund or standardize.
The statute advances postconviction fact-finding but raises practical and legal implementation questions. First, key terms are open to interpretation: what counts as a sufficient "showing" of good-faith efforts to obtain counsel’s files, and what constitutes "reasonable access" to prosecution-held materials?
Those thresholds will shape how often courts order production and how long disputes over compliance and access last. Second, the retention mandate for trial counsel sets a clear technical standard (color digital copies) but offers no funding or compliance regimen; small law firms and underfunded public defender offices will face tangible costs and logistics decisions about storage and long-term preservation.
A second tension concerns incentives and strategic behavior. The peremptory-challenge carve-out permits prosecutors to withhold jury selection notes where they did not exercise peremptories, a rule that could be invoked broadly and potentially shield useful materials.
Similarly, shifting copying and examination costs to defendants reduces public fiscal exposure but risks placing an access barrier in front of indigent petitioners unless courts use fee-waiver powers. Finally, while the bill does not require prosecutors to search for new materials, courts can order investigations when appropriate — creating uneven outcomes depending on judicial appetite and local resources.
These discretionary elements mean the statute’s real-world impact will vary across counties and courts.
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