Smith v. Super. >Ct.>

 

 

 

 

 

 

 

 

 

Filed 7/18/13  Smith v. Super. Ct. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

 

 
>

ARTHUR D. SMITH,               Petitioner,   v.   THE SUPERIOR COURT OF RIVERSIDE COUNTY,               Respondent;   THE PEOPLE,               Real Party in Interest.

E058810               (Super.Ct.No. RIF130256)               OPINION

 

            ORIGINAL
PROCEEDINGS; petition for writ of mandate. 
Edward D. Webster, Judge. 
(Retired judge of the Riverside Super. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal.
Const.)  Petition granted.

            Arthur
D. Smith, in. pro. per., for Petitioner.

            No
appearance for Respondent.

            Kamala
D. Harris, Attorney General, and Holly D. Wilkens, Deputy Attorney General, for
Real Party in Interest.

The court has read
and considered the petition for writ of mandate and the informal response filed
by the Attorney General.  The Attorney
General concedes that petitioner is entitled to the appointment of an
attorney.  Given this concession, this
court may grant relief without issuance of an alternative writ or an order to
show cause.  (Code Civ. Proc.,
§ 1088; Palma >v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179.)  Accordingly, the petition for writ of mandate
is granted.

Petitioner filed a
written request with the trial court
stating that he is presently confined for an offense he did not commit, that
deoxyribonucleic acid (DNA) testing is relevant to his assertion of innocence,
that he is indigent, and that he has not previously requested appointment of
counsel to pursue a motion for DNA testing. 
Therefore, he has stated a prima facie basis for appointment of counsel,
and the court was required by Penal Code section 1405, subdivision (b)(1), to
appoint an attorney to prepare a motion for performance of DNA testing. 

DISPOSITION

Let a peremptory
writ of mandate issue directing the Superior Court of Riverside County to
vacate its previous denial and to appoint counsel solely for the purpose of
(1) investigating the appropriateness of DNA testing as to petitioner’s
conviction; and (2) filing a motion for DNA testing if counsel’s
investigation reveals that such testing would be appropriate under Penal Code
section 1405.

            Petitioner
is directed to prepare and have the peremptory writ of mandate issued, copies
served, and the original filed with the clerk of this court, together with
proof of service on all parties.

            NOT
TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

CODRINGTON                    

                                                Acting P. J.

 

 

We concur:

 

 

HOLLENHORST                 

                                             J.

 

 

KING                                     

                                             J.