In re Fulford
Filed 6/5/07 In re Fulford CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re FRED FULFORD, on Habeas Corpus. | E040961 (Super.Ct.No. ICR23038) OPINION |
APPEAL from the Superior Court of Riverside County. APPEAL treated as ORIGINAL PROCEEDING; petition for writ of habeas corpus. Graham Anderson Cribbs, Judge. Petition granted.
Maureen J. Shanahan, under appointment by the Court of Appeal, for Petitioner Fred Fulford.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Barry Carlton, Deputy Attorney General, for Respondent State of California.
Petitioner challenges the superior courts order denying his request for appointment of counsel under Penal Code section 1405, subdivision (b).
In the interest of judicial economy, we elect to treat this appeal as a petition for writ of habeas corpus. (Cf. People v. Gallardo (2000) 77 Cal.App.4th 971, 976, 987-989 [notice of appeal ordered refiled as a petition for writ of habeas corpus and considered separately].) The People concede that, Assuming [petitioner] is in fact an indigent prisoner serving time for a felony conviction, and that he had not previously been appointed DNA counsel, the court erred in refusing his request. Because we can infer these facts from the record, which includes the items of which we take judicial notice, we grant the petition and direct the superior court to grant petitioners request for appointment of counsel.
Facts and Procedure[1]
On November 17, 1999, a jury convicted petitioner of murder. (Pen. Code, 187.) The trial court sentenced him to a prison term of 25 years to life. The conviction was ultimately upheld on appeal. (People v. Fulford (Dec. 8, 2000, E027018) [nonpub. opn.]; People v. Fulford (Sept. 28, 2001, E029132) [nonpub. opn.].)
By a letter to the trial court dated April 11, 2006, petitioner requested appointment of counsel, pursuant to Penal Code section 1405, in order to file a motion for DNA (deoxyribonucleic acid) testing. In the request, he stated under penalty of perjury that he was not the perpetrator of the crime of which he was convicted, that DNA testing is relevant to proving his innocence, that DNA had not been submitted in his defense at trial, that he had not previously filed for DNA testing or the appointment of counsel in this regard, and that he was indigent. In a minute order dated May 2, 2006, the trial court denied the motion without a hearing or a statement of reasons. Petitioner filed a notice of appeal, dated May 8, 2006, on May 30, 2006.
Discussion
Penal Code section 1405, subdivision (b), allows a person convicted of a felony and serving a term of imprisonment to ask the trial court to appoint legal counsel to investigate whether to file a request for DNA testing.
(b)(1) 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 persons 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 persons statement as to whether he or she previously has had counsel appointed under this section.
(2) If any of the information required in paragraph (1) is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information.
(3)(A) 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. (Pen. Code, 1405, subd. (b)(1), (2) & (3)(A), emphasis added.)
The sole published case on the appointment of counsel under Penal Code section 1405 is In re Kinnamon (2005) 133 Cal.App.4th 316. In that case, the appellate court made it clear that the superior court has no discretion to deny appointment of counsel where a convicted felons request includes the required information and counsel has not been previously appointed for obtaining DNA testing. (Id. at pp. 320-323.) Here, the petitioners request does include the required information and we find no indication that counsel has previously been appointed under Penal Code section 1405. Thus, the superior court is required to appoint counsel.
Disposition
The petition for writ of habeas corpus is granted. The superior court is directed to vacate its order denying petitioners request for the appointment of counsel pursuant to section 1405 and enter a new order appointing counsel solely for the purpose of (1) investigating the appropriateness of DNA testing as to petitioners conviction of murder, and (2) filing a motion for DNA testing if counsels investigation reveals that such testing is appropriate.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
J.
We concur:
/s/ Ramirez
P.J.
/s/ Richli
J.
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[1]This court takes judicial notice of the records of the superior court in case No. ICR23038 pursuant to Evidence Code sections 452, subdivision (d), 459, subdivision (a)(1).
