Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. VA062534, Steven Van Sicklen, Judge.
Nancy J. King, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
SUZUKAWA, J.
Bismarck Ceja appeals from an order after judgment denying the appointment of counsel pursuant to Penal Code section 1405. Previously appellant was convicted by jury of four counts of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)(1)), three counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), and one count of penetration by a foreign object (Pen. Code, § 289, subd. (a)(1)). Appellant was sentenced to 150 years to life plus four consecutive life terms in state prison. The convictions related to four separate sexual assaults against four female victims and his convictions and sentence were affirmed by this court in an opinion filed March 7, 2003 in case number B157257.
Penal Code section 1405 provides in pertinent part, “An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request shall include the person’s statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request also shall include the person’s statement as to whether he or she previously has had counsel appointed under this section.” (Id., subd. (b)(1).) “Upon a finding that the person is indigent, he or she has included the information required in paragraph (1), and counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section.” (Id., subd. (b)(3)(A).) “Upon a finding that the person is indigent, and counsel previously has been appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section.” (Id., subd. (b)(3)(B).)
Relative to appellant’s claim pursuant to Penal Code section 1405, the record establishes that on October 14, 2003, Gigi Gordon and the Post Conviction Assistance Center were appointed to determine whether a motion and application for post conviction DNA testing should be filed and to file such motions if counsel deemed them to be meritorious.
On January 26, 2005, Attorney Gordon filed a motion for an order to unseal appellant’s DNA profile and compare the DNA profile to one obtained from a sample found on one of the named victims, Jinny H.
On January 31, 2005, appellant in pro. per. filed a supplemental motion, stating that he and his counsel had a difference of opinion, and requested DNA testing on the remaining three victims. Appellant’s pro. per. motion was denied.
On April 15, 2005, the motion filed by Attorney Gordon was granted. On May 31, 2005, the court ordered the closing of the file pursuant to Penal Code section 1405 following a determination that there was a match between appellant’s sample and the evidence collected in the Jinny H. case.
On August 23, 2005, appellant in pro. per. filed a new request for DNA testing pursuant to Penal Code section 1405 as to the remaining three victims.
On October 21, 2005, appellant filed a request for an appointment of different counsel based on a conflict with Attorney Gordon.
Attorney Gordon filed a response to appellant’s request for appointment of different counsel asserting in pertinent part that she did not “‘investigate only one of the 4 victims’” as claimed by appellant. “The case was tried as a serial similar modus operandi rape case. There were four victims. No forensic evidence was presented at trial by either the prosecution or defense. More likely than not, the reason for this was the existence of a confession from [appellant] and the fact that property from two of the victims was in his possession upon his arrest. [Appellant] was identified by all four victims at trial.”
The matter was transferred to Department 100 for a ruling on appellant’s request for new counsel.
On February 1, 2006, the district attorney filed opposition to the motion requesting DNA testing.
On April 19, 2006, the trial court denied appellant’s motion for testing pursuant to Penal Code section 1405.
On October 24, 2006, the trial court denied appellant’s request filed on July 17, 2006 for appointment of counsel pursuant to Penal Code section 1405.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On August 7, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider. On August 17, 2007, appellant’s request for extension of time to file a supplemental brief was granted to and including October 6, 2007. No response has been received to date.
On September 13, 2007, appellant’s request to augment the appellate record with trial exhibits was denied.
We have examined the entire record and are satisfied that no arguable issues exist and that appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112-113.)
DISPOSITION
The order is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.