Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 66773-B
BY THE COURT:By petition for writ of mandate, petitioner Curtis Renee Jackson challenged the denial of his motion for appointment of counsel under Penal Code section 1405, subdivision (b). The trial court denied the motion because Petitioner “is not in custody as a result of the conviction in this case.” By letter, we requested informal opposition from the real party in interest. In their opposition, the People concede that the trial court erred in denying the motion.
Penal Code section 1405 creates a postconviction DNA testing procedure. Under subdivision (a), the procedure is available to “[a] person who was convicted of a felony and is currently serving a term of imprisonment.” (Pen. Code, § 1405, subd. (a).) The first step in the procedure is for appointment of counsel to investigate whether to bring a motion for DNA testing to challenge an existing conviction. (Pen. Code, § 1405, subd. (b)(1).) Counsel is to be appointed if: (1) the convicted defendant is indigent; (2) the convicted defendant include a statement “that he or she was not the perpetrator of the crime;” and (3) “DNA testing is relevant to his or her assertion of innocence.” (Ibid.) In this case, Petitioner has satisfied the requirements set forth in subdivision (b)(1) and the People so concede.
In denying the motion, the trial court apparently concluded that Petitioner did not meet the predicate requirements in subdivision (a). That subdivision, as noted above, provides that the procedure is available to “[a] person who was convicted of a felony and is currently serving a term of imprisonment.” (Pen. Code, § 1405, subd. (a).) Petitioner was convicted of a felony and is currently serving a term of imprisonment, albeit for an offense other than the one for which he is seeking the DNA test. DNA testing, however, is appropriate under section 1405 to challenge the substantive crime, a special circumstances allegation, or an “enhancement allegation that resulted in the conviction or sentence.” (Pen. Code, § 1405, subd. (f)(4).) Enhancement allegations that “result” in the sentence include prior convictions. As such, Penal Code section 1405 applies to incarcerated felons challenging a prior conviction.
As Petitioner meets the predicate requirements in subdivision (a) and has satisfied the requirements under subdivision (b)(1), the trial court should have granted the motion for counsel. Let a peremptory writ of mandate issue commanding respondent to grant Petitioner’s motion for appointment of counsel under Penal Code section 1405, subdivision (b). Our decision is final as to this court immediately. (See Cal. Rules of Court, rule 8.264(b)(3).)