(Super. Ct. No. 2009004090) (Ventura County) Vincent O'Neill, Judge
The opinion of the court was delivered by: Coffee, J.
CERTIFIED FOR PUBLICATION
OPINION AND ORDER DENYING PETITION FOR WRIT OF MANDATE
Penal Code section 1054.1 requires the prosecution to disclose certain types of evidence and information to the defendant or to his or her attorney.*fn1 Here, a defendant who has retained counsel demands that the prosecution furnish him copies of these discoverable items free of charge. We conclude that section 1054.1 imposes no such duty on the prosecution. The People comply with section 1054.1 by affording the defendant an opportunity to examine, inspect, or copy the discoverable items. A non-indigent defendant may receive at his or her own expense copies of discovery made available by the People.
Archie William Schaffer, Jr., seeks extraordinary relief to set aside an order of the superior court denying his motion to compel the People to provide copies of discovery mandated by section 1054.1 free of charge. We deny his petition.
Schaffer was charged in a felony complaint with making criminal threats (§ 422), reckless driving (Veh. Code, § 23103, subd. (a)), and street terrorism (186.22, subd. (a)). As to the first count, the People alleged that he committed the act for the benefit of a criminal street gang (§186.22, subd. (b)(1)), the Hells Angels Motorcycle Club, and personally used a firearm (§ 12022.5, subd. (a)). Schaffer is represented by privately retained counsel.
In May 2009, two days prior to the preliminary hearing, the prosecution informed Shaffer's counsel that 70 pages of telephone records and information were available as items for discovery. According to a written policy of the District Attorney's Office, photocopies of documents produced as part of the People's statutory discovery obligations are provided to the Public Defender and conflict defense attorneys at three cents per page. The office charges privately retained counsel a duplication fee of 15 cents per page. Defense counsel declining to purchase a copy may make arrangements to view discovery at the District Attorney's Office. In that event, the District Attorney's Office supervises the inspection of the materials disclosed to protect against fraud or theft. Alternatively, defendants or their counsel may bring photocopy or scanning equipment to the District Attorney's Office to photocopy or digitally scan the documents produced, or have a licensed photocopy service make copies. The District Attorney's Office charges $1.65 for duplication of cassette tapes and $5 for each "CD" or "DVD." Initial discovery packets in misdemeanor cases are provided at no charge, but copies of subsequent discovery materials are charged at the rates indicated above.
On May 15, 2009, the date set for the preliminary hearing, Schaffer's counsel filed, among other things, a motion to abate discovery costs. Schaffer moved to continue the preliminary hearing to permit his counsel time to examine the discovery. His motion for a continuance was denied, but his counsel was permitted 20 minutes to review the discovery. Schaffer's counsel went to the District Attorney's Office to retrieve the discovery and was given an invoice in the amount of $10. Counsel declined to pay the bill and told the staff he had filed a motion to abate discovery costs. The District Attorney's staff informed counsel that the discovery could be viewed in the lobby in the presence of an investigator, but the items could not be taken absent payment.
To avoid being tardy for the preliminary hearing, Schaffer's counsel returned to the courtroom without reviewing the discovery. Thereafter, Schaffer's counsel informed the trial court that, although the People did not intend to introduce at the preliminary hearing items included in the discovery packet, Schaffer was prejudiced because counsel had no choice but to proceed with the preliminary hearing without knowing whether or not there was exculpatory information in the discovery packet which could be introduced at the preliminary hearing. The prosecutor responded, "We're intending to provide discovery to the defense. Our obligation is to provide it, not necessarily copy it and send them copies. They can come and review it. Our policy is . . . to send copies of all the discovery, including audio CD's and the like, for the nominal fee of producing the discovery. It's not being used as a sword in any way."
The trial court deferred ruling on Schaffer's motion to abate the costs of discovery and, following the preliminary hearing, bound Schaffer over for trial. Schaffer's counsel states that he had no opportunity to cross-examine prosecution witnesses with respect to what was included in the discovery packet.
On June 24, 2009, the trial court conducted a hearing on Schaffer's motion to abate discovery costs. Schaffer's counsel argued that, to date, he had been billed a total of $185 in two matters ($40 in Schaffer's case). He noted that it was not practical for him to sit in the District Attorney's Office with his client, in the presence of the People's investigator, and review discovery documents. He stated, "If I had to interview my client in the course of reviewing the discovery, or if I had to talk to an expert . . . clearly any such conversation is going to be audible to any investigator for the People who's sitting there in the presence of reviewing the discovery. [¶] . . . I don't see how I can maintain an attorney-client privilege or generate . . . attorney-client work product while I have one of the People's investigators looking over me . . . ." Schaffer's counsel argued that the District Attorney's policy of requiring the defendant to pay for duplication of discovery depletes the resources needed to furnish a defense.
Schaffer's counsel further argued that if the trial court condoned the policy of the District Attorney's Office it would result in a plethora of discovery disputes the courts would have to resolve. He questioned whether the court would require the District Attorney's Office to come to his office and pay for duplication costs. He inquired how much the court would allow him to charge the People for duplication costs.
In opposition, the prosecutor argued, "We have a duty to disclose, not a duty to deliver. And the fees that are charged . . . are nominal. In dispute currently in this case is ...