People v. Ramirez CA3 ( 2022 )

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
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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
1 Further undesignated statutory references are to the Penal Code.
2 Because the Attorney General agrees the trial court’s order is appealable in this case,
we do not discuss whether the challenge is more appropriately brought as a writ petition.
(See § 1405, subd. (k).)
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“include the person’s statement that he or she was not the perpetrator of the crime,”
“explain how the DNA testing is relevant to his or her assertion of innocence,” and
“include the person’s statement as to whether he or she previously has had counsel
appointed under this section.” (§ 1405, subd. (b)(1).) The trial court must appoint
counsel upon a finding that the person is indigent, the request includes all information
required in subdivision (b)(1), and that counsel has not previously been appointed.
(§ 1405, subd. (b)(3)(A); In re Kinnamon (2005) 133 Cal.App.4th 316, 323 [a trial court
has no discretion to deny a facially sufficient § 1405 request for appointment of
counsel].)
Here, defendant’s request satisfied the requirements in section 1405,
subdivision (b)(1). The request stated that he was not the perpetrator of the crime, that
the testing would prove his innocence, and that he was indigent and had not yet been
appointed counsel under section 1405. We have found no indication in the record that
defendant is not indigent or that counsel has previously been appointed under
section 1405. The trial court was therefore required to appoint counsel (In re Kinnamon,
supra, 133 Cal.App.4th at p. 323), and is directed to do so on remand.
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DISPOSITION
The trial court’s order denying defendant appointment of counsel to assist with a
section 1405 motion is reversed. The case is remanded with directions to the trial court
to appoint counsel to represent defendant, should he remain indigent, to investigate the
merits of filing a motion for DNA testing, and to prepare the motion if it appears to meet
the requisite statutory criteria.
/s/
Duarte, J.
We concur:
/s/
Hull, Acting P. J.
/s/
Renner, J.
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