People v. Ramirez CA3

Filed 7/18/22 P. v. Ramirez CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE, C094719

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2006-0007920, SF099153A) v.

TONY AUDENCIO RAMIREZ,

Defendant and Appellant.

Defendant Tony Audencio Ramirez challenges a postconviction order that summarily denied his request for appointment of counsel to prepare a motion for forensic deoxyribonucleic acid (DNA) testing. The Attorney General agrees remand is appropriate; although he does not explicitly concede appointment of counsel must be ordered, he observes “it appears” that the statutory requirements are met and the trial court would have no discretion to deny defendant’s request. We agree and reverse the order denying the request and remand with directions to appoint counsel.

1

BACKGROUND After a jury found defendant guilty of numerous felonies, the trial court sentenced him to an aggregate term of life without the possibility of parole (LWOP), plus 75 years to life to run consecutive to the LWOP, and a determinate term of 29 years to run consecutive to the LWOP and 75-year-term. While serving his term, defendant filed a motion in propria persona pursuant to Penal Code section 1405, requesting the trial court appoint him counsel in order to prepare a motion for postconviction DNA testing. 1 The motion claimed that defendant was not the perpetrator of the crimes for which he was convicted, that “DNA testing is critical and relevant to [defendant’s] assertion of his innocence,” and that “the testing of ballistics, shell casings, finger prints, and gun powder residue will reveal that [defendant] is not the perpetrator of the crimes.” The motion further alleged defendant was indigent and had not previously been appointed counsel under section 1405. The trial court denied defendant’s motion without stating any reasons. Defendant timely appealed.2 After several continuances of the briefing schedule, the case was fully briefed on April 29, 2022, and assigned to this panel on May 5, 2022. The parties waived argument on July 5, 2022, and the cause was submitted. DISCUSSION Section 1405 allows a convicted felon who is serving a term of imprisonment to file a postconviction motion for DNA testing. (§ 1405, subd. (a).) If the prisoner is indigent, he or she may also request the trial court to appoint counsel to investigate and, if appropriate, file a DNA testing motion. (§ 1405, subd. (b)(1).) This request must