Opinion
E080993
06-14-2023
JUAN DAVID GONZALEZ, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
Juan David Gonzalez, in pro. per. for Petitioner. No appearance for Respondent. Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney.
NOT TO BE PUBLISHED
OPINION ORIGINAL PROCEEDINGS; petition for writ of mandate. No. RIF13055878 Sean P. Crandell, Judge. Petition granted.
Juan David Gonzalez, in pro. per. for Petitioner.
No appearance for Respondent.
Michael A. Hestrin, District Attorney, and Emily R. Hanks, Deputy District Attorney.
OPINION
McKINSTER J.
Petitioner Juan David Gonzalez is serving a sentence of 33 years to life after a jury convicted him of multiple sexual offenses. He filed a petition for writ of mandate in this court challenging the superior court's denial of his written request under Penal Code section 1405 (section 1405) for appointment of counsel to prepare, investigate, and litigate a motion for postconviction DNA testing. After reviewing Gonzalez's writ petition, we requested a response and advised the parties we may issue a peremptory writ in the first instance under Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178. The People filed a response. They agree the court assessed Gonzalez's request under the wrong subdivision of section 1405, and that remand is appropriate for the court to reconsider the request under the proper subdivision.
Section 1405 governs postconviction DNA testing. It allows a person "who was convicted of a felony and is currently serving a term of imprisonment" to file a motion requesting DNA testing. (§ 1405, subd. (a).) Subdivision (d) of the statute sets forth the requirements for the motion. Subdivision (b) sets forth the requirements for appointing counsel to prepare the motion. The superior court denied Gonzalez's request for appointment of counsel under subdivision (d), rather than subdivision (b).
Issuance of a peremptory writ in the first instance is appropriate when, as here, the parties agree relief is warranted. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241.) We therefore direct the superior court to vacate its order denying Gonzalez's request for appointment of counsel under section 1405, subdivision (d), and to reconsider the request under section 1405, subdivision (b). We express no opinion on the merits of the request.
We deny Gonzalez's further request to recuse Judge Crandell. There is no indication Gonzalez sought relief on this issue below. (Phelan v. Superior Court of San Francisco (1950) 35 Cal.2d 363, 372.)
DISPOSITION
Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its September 30, 2022 order denying Gonzalez's request for appointment of counsel under section 1405, subdivision (d), and to reconsider the request under section 1405, subdivision (b).
We concur: RAMIREZ P. J. MILLER J.