People v. Donovan CA5

Filed 7/14/21 P. v. Donovan CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081240 Plaintiff and Respondent, (Super. Ct. No. CRF43024) v.

JEREMIAH JAMES DONOVAN, OPINION Defendant and Appellant.

THE COURT* APPEAL from an order of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Michael Chamberlain, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Poochigian, J. and Franson, J.

Defendant Jeremiah James Donovan stands convicted of assault with a deadly weapon. After his conviction was affirmed, he filed a motion for deoxyribonucleic acid (DNA) testing of evidence pursuant to Penal Code section 1405.1 His motion was denied, and he filed a notice of appeal. He contends that we should (1) construe his notice of appeal as a timely filed petition for writ of mandate, and (2) conclude that the trial court erred in finding that (a) defendant’s identity was not a significant issue in the case and (b) DNA testing would not have led to a reasonable probability of a more favorable result. The People argue that defendant’s appeal should be dismissed or, if we construe the notice of appeal as a timely petition for writ of mandate, denied on the merits. We dismiss the appeal. PROCEDURAL SUMMARY On April 14, 2014, the Tuolumne County District Attorney filed an amended information charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1)). The amended information alleged defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), was on bail or his own recognizance at the time of the crime (§ 12022.1), had suffered a prior “strike” conviction within the meaning of the “Three Strikes” law (§ 667, subds. (b)–(i)), had suffered a prior serious felony conviction (§ 667, subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)). On September 3, 2014, defendant admitted the prior conviction and on-bail allegations. On September 5, 2014, the jury found defendant guilty of assault with a deadly weapon and found true the allegation that he personally inflicted great bodily injury. On October 20, 2014, the trial court sentenced defendant to a term of 18 years in prison.2