Duke v. Superior Court CA2/1

Filed 4/11/14 Duke v. Superior Court CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

JONATHAN DUKE, B254105

Petitioner, (L.A.S.C. No. MA057733)

v. OPINION AND ORDER THE SUPERIOR COURT OF GRANTING PEREMPTORY LOS ANGELES COUNTY, WRIT OF MANDATE

Respondent;

THE PEOPLE,

Real Party in Interest.

ORIGINAL PROCEEDING; petition for writ of mandate. Lisa Mangay Chung, Judge. Petition granted. Ryan Wolfe for Petitioner. No appearance for Respondent. Jackie Lacey, District Attorney, Roberta Schwartz and Cassandra Hart, Deputy District Attorneys, for Real Party in Interest.

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Petitioner Jonathan Duke sought an order for free trial transcripts to prepare a motion for a new trial after his conviction for murder. Respondent court denied his request. Although Petitioner did not demonstrate his indigency below, the People concede error and recommend an evidentiary hearing in the trial court. Accordingly, we grant the petition and order that such a hearing be conducted. (Code Civ. Proc., § 1088.) BACKGROUND At trial, Petitioner was represented by appointed counsel, an alternate public 1 defender. On October 21, 2013, Petitioner was convicted by jury of one count of willful, deliberate, and premeditated murder; the jury found true the allegation that the crime was committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members. (Pen. Code, §§ 187, 186.22, subd. (b)(4).) Before Petitioner’s sentencing, his family hired attorney Ryan Wolfe to file a motion for a new trial and to represent Petitioner upon sentencing. Petitioner moved ex parte for County of Los Angeles to provide trial transcripts without cost to Petitioner. Petitioner did not provide his own declaration in support of the motion. Instead, Petitioner provided Wolfe’s declaration, stating, in part, “Although I have been privately retained with fundraising support of [Petitioner]’s family, based on information and belief it is my conclusion that the [Petitioner] is indigent, and therefore qualifies for court ordered transcripts. [¶] [Petitioner] previously qualified for representation as an indigent by the Alternate Public Defender’s Office.” In the declaration filed in support of the instant petition, Wolfe states that at the January 13, 2014 hearing, he “offered an oral declaration of Mr. Duke’s indigency and