Opinion
F073195
02-20-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY SILVA, Defendant and Appellant.
Heather MacKay, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11907044)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Heather MacKay, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Galen N. Farris, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Anthony Silva appeals from a postconviction order of the superior court denying his request for counsel to investigate whether to file a motion to determine the identity of deoxyribonucleic acid (DNA) on evidence gathered from him and from the victims of robbery and attempted murder. Defendant filed a motion in propria persona to have counsel appointed to assist him in having his DNA tested pursuant to Penal Code section 1405. After denying defendant's motion for counsel, the trial court summarily decided the merits of defendant's motion. Defendant contends the trial court erred in reaching the merits of his motion without first appointing him counsel.
Unless otherwise designated, all statutory references are to the Penal Code.
The People agree defendant was entitled to counsel to pursue his section 1405 motions, but argue that because the Legislature has not funded this statute for several years the county may, but is not obligated to, fund defense counsel to pursue the motion. Defendant counters that the failure to provide him with counsel violates his fundamental due process rights. The parties further argue the merits of the trial court's ruling on defendant's section 1405 motion.
We agree with the parties that the trial court erred in failing to provide defendant with counsel to investigate, and to potentially pursue, his motion pursuant to section 1405. The failure to appoint counsel violated the express language of section 1405 and defendant's constitutional right to due process. Because the error is fundamental, we cannot reach the merits of defendant's motion; we order the trial court's order vacated and the matter remanded for appointment of counsel and further proceedings.
FACTS AND PROCEEDINGS
In People v. Silva (Dec. 8, 2014, F066141) [nonpub. opn.], the Fresno County District Attorney alleged defendant robbed his former friend, Jerry Manning, Jr. (Jerry Jr.) of a wallet and cell phone and then shot and wounded both Jerry Jr. and Jerry Manning, Sr. (Jerry Sr.) in November 2011. A jury trial was held in Fresno Superior Court in which the identity of the gunman was disputed.
On August 16, 2016, the People filed a request pursuant to Evidence Code section 452, subdivision (d) and California Rules of Court, rule 8.252, to take judicial notice of the record in People v. Silva, supra, F066141. The motion is not opposed by defendant. We deferred ruling on this motion until consideration of the instant appeal. We hereby take judicial notice of our opinion in People v. Silva, supra, F066141. --------
The jury convicted defendant of two counts of attempted murder (§§ 664, 187, subd. (a)), discharging a firearm at an occupied vehicle (§ 246), and second degree robbery (§ 211), with enhancements for personal discharge of a weapon causing great bodily injury (§ 12022.53, subd. (d)). Defendant was sentenced to a prison term of 50 years to life, plus 11 years 4 months. Our court affirmed the judgment, which has become final.
On August 31, 2015, defendant filed a request in propria persona in the Fresno Superior Court for appointment of counsel and for DNA testing. Defendant cited section 1405, which authorizes postconviction motions for DNA testing and appointment of counsel for indigent prisoners who seek to file such motions. Defendant requested appointment of counsel and stated he met all of the requirements for DNA testing pursuant to section 1405, subdivision (d)(1).
Defendant stated he was not the person who committed the crime, identity was a significant issue in the case, DNA testing would show he did not commit the crime, and his trial counsel was ineffective. Defendant identified the evidence to be tested—a black "Central Grizzlies" sweatshirt, blue jeans, and two T-shirts. Defendant described how the clothing was relevant to his case and why DNA may shed light on the identity of the gunman. Eyewitnesses had described the perpetrator as wearing a black and white mask, a black Central Grizzlies sweatshirt, and blue jeans, and had pointed a police officer toward the direction in which the suspect fled.
In following the gunman's path, the officer found the black Central Grizzlies sweatshirt, blue jeans, and T-shirts, along with Jerry Jr.'s stolen wallet in a plastic grocery bag inside a city garbage can near the crime scene. Jerry Jr.'s wallet had been tested and contained DNA from one male and one female; defendant was not the male DNA contributor. Our opinion noted there was a mixture of DNA on the wallet that did not belong to Jerry Jr. or to defendant. None of the clothing, however, was tested for DNA. Defendant stated his belief that DNA test results will show someone else was in possession of the victim's wallet; he had not previously filed a postconviction motion for DNA testing.
At trial, the prosecutor argued the sweatshirt belonged to defendant because he had attended Central High School. Defendant described why the witnesses who claimed he was the gunman lacked credibility, and he asserted DNA testing of the clothing would undermine the prosecution's claim that he was the gunman.
The prosecutor filed an opposition brief. The prosecutor reported the items of clothing at issue were still in police custody. The prosecutor did not address defendant's request for counsel to investigate and, if appropriate, prepare a full section 1405 motion. The prosecutor asserted the court should deny defendant's motion for DNA testing on the merits, focusing on the argument that DNA analysis would not raise a reasonable probability that the verdicts or sentence would have been more favorable if the results of DNA testing had been available at the time of the trial. The prosecutor asserted the items of clothing were not material to the issue of identity because they could not conclusively be linked to the gunman. The prosecutor argued that even if defendant's DNA was not on the clothing, and even if the clothing contained a third party's DNA, those results would not cast doubt on the identity of the gunman because other evidence inculpated defendant.
Defendant filed a reply brief in propria persona wherein he renewed his request that the court appoint counsel to brief his motion pursuant to section 1405 and asserted he was entitled to DNA testing pursuant to section 1405. Defendant also attempted to rebut the prosecutor's arguments that the court should deny DNA testing without appointing counsel. Defendant included excerpts of the reporter's transcripts in which the police officer who searched the garbage can stated his attention had been drawn to the sweatshirt because it "matched the description given by one of the witnesses," and the items of clothing and the wallet were found within the same plastic grocery bag.
On December 21, 2015, the trial court issued an order denying defendant's request for appointment of counsel, without discussing the criteria set forth in section 1405, subdivision (b), or stating why defendant failed to meet those criteria. The court stated it was denying defendant's motion for DNA testing on the merits because it was not reasonably probable a more favorable result would have been achieved had the evidence been available at the time of trial. The court cited section 1405, subdivision (g)(5), and Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1051.)
In its written opinion, the court did not discuss the materiality of the items defendant sought to have tested or the evidence indicating those items had been worn by the gunman. The court adopted the prosecutor's argument that identity was not a significant issue in the case and that even if DNA test results were favorable to defendant, there was no reasonable probability the jury would have reached verdicts more favorable to him. The court cited to prosecution evidence that the victims and eyewitnesses were well acquainted with defendant and had identified him as the shooter, as well as testimony by defendant's ex-girlfriends that defendant said he "got into it" with Jerry Jr., and defendant had asked one of the ex-girlfriends to tell the authorities he had been with her on the day of the shooting.
DISCUSSION
Appealability
Subdivision (k) of section 1405 provides in relevant part: "An order granting or denying a motion for DNA testing under this section shall not be appealable, and shall be subject to review only through petition for writ of mandate or prohibition filed by the person seeking DNA testing, the district attorney, or the Attorney General." The parties agree, however, that although the trial court's order denying defendant's section 1405 motion is not an appealable order, the trial court's order denying defendant counsel to pursue the motion is not barred by subdivision (k) of section 1405 or any other provision of law. The parties concur the trial court's order denying defendant counsel is a postjudgment order affecting defendant's substantial rights and can be reviewed under section 1237, subdivision (b).
Defendant further argues that in order to review the trial court's order denying his section 1405 motion, we should treat his appeal as a writ. The People oppose this approach. As we discuss in further detail below, the trial court's failure to appoint counsel was a fundamental error under both the express terms of section 1405, subdivision (b), and a criminal defendant's rights to counsel and to due process. Because of the nature of this error, we will vacate the trial court's order denying defendant relief under section 1405 without analyzing the trial court's ruling on the merits. On remand, defendant may bring a new motion, if appropriate, after the trial court has appointed him counsel.
Statutory Right to Counsel
Section 1405, subdivision (b)(1) provides that an indigent convicted person may request appointment of counsel to prepare a motion for DNA testing by sending a written request to the trial court. "The request shall include the person's statement that he or she was not the perpetrator of the crime and shall explain how DNA testing is relevant to his or her assertion of innocence. The request also shall include the person's statement as to whether he or she previously has had counsel appointed under this section." If all of these requirements are met, subdivision (b)(3)(A) of section 1405 states: "Upon a finding that the person is indigent, he or she has included the information in paragraph (1), and counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel to investigate and, if appropriate, to file a motion for DNA testing under this section and to represent the person solely for the purpose of obtaining DNA testing under this section."
The parties agree each of the statutory requirements for appointment of counsel are present here. The parties further concur the trial court has no discretion to refuse appointment of counsel where the pleading requirements of section 1405, subdivision (b) have been met. The language of section 1405, subdivision (b) is unambiguous. The trial court must appoint counsel for an indigent convicted person if the request includes the required information, provided that counsel was not previously appointed for the purpose of obtaining DNA testing for a postconviction section 1405 motion. (In re Kinnamon (2005) 133 Cal.App.4th 316, 321.)
Furthermore, the appropriateness of DNA testing is not determined when an inmate requests the appointment of counsel to prepare a motion. Pursuant to subdivision (b)(3)(B) of section 1405, "[t]he Legislature anticipated that, by requiring the appointment of counsel before the filing of the motion, it would help ensure that inappropriate motions would not be filed." (In re Kinnamon, supra, 133 Cal.App.4th at p. 322.) Under the letter of section 1405, the trial court did not have discretion to deny defendant's request for the appointment of counsel solely for the purpose of investigating a section 1405 motion. (In re Kinnamon, supra, at p. 323.) As noted by defendant's appellate counsel, the filing of a ruling on the merits of the case prior to the appointment of counsel to represent defendant is a case of the trial court "putting the cart before the horse." The trial court erred in failing to appoint counsel to look into and prepare, if appropriate, a section 1405 motion prior to ruling on defendant's motion.
Right to Counsel Under Due Process and Equal Protection
Although the People concede defendant had a statutory right to pursue his motion for DNA testing with the assistance of counsel, the People argue the Legislature has not funded section 1405 for several years and defendant will have to wait until the Legislature refunds the law before pursuing his motion. We find several flaws in the People's argument, the most fundamental of which is that suspension of funding by the Legislature appears to have nothing to do with the appointment of counsel.
Beginning in 2010, the Legislature passed legislation declaring pursuant to section 6 of article XIII B of the California Constitution, or Government Code section 17581, that section 1405 was not subject to funding. (Sen. Bill No. 870 (2009-2010 Reg. Sess.) ch. 712, § 2, item 8885-295-0001, schedule (3)(mm), p. 727; Sen. Bill No. 87 (2011-2012 Reg. Sess.) ch. 33, § 2, item 8885-295-0001, schedule (3)(kk), p. 717; Assem. Bill No. 1464 (2011-2012 Reg. Sess.) ch. 21, § 2, item 8885-295-0001, schedule (3)(hh), p. 665; Assem. Bill No. 110 (2013-2014 Reg. Sess.) ch. 20, § 2, item 8885-295-0001, schedule (3)(ww), p. 628; Sen. Bill No. 852 (2013-2014 Reg. Sess.) ch. 25, § 2, item 8885-295-0001, schedule (3)(uu), p. 633.) For the past two budget years and the current budget year of 2017, the Legislature has expressly failed to fund section 1405. (Assem. Bill No. 93 (2015-2016 Reg. Sess.) ch. 10, § 2, item 8885-295-0001, schedule (5)(qq), p. 655; Sen. Bill No. 826 (2015-2016 Reg. Sess.) ch. 23, § 2, item 8885-295-0001, schedule (5)(qq), p. 650; Assem. Bill No. 97 (2017-2018 Reg. Sess.) ch. 14, § 2, item 8885-295-0001, schedule (5)(qq), p. 676.)
The enacting legislation to the budgets specifically limited reimbursement for local assistance, "of the costs of any new program or increased level of service of an existing program mandated by statute or executive order, for disbursement by the Controller for claims for costs incurred during the specified periods." (E.g., Assem. Bill No. 93 (2015-2016 Reg. Sess.) ch. 10, § 2, p. 646.) The lengthy schedule of items unfunded by the Legislature included item 8885-295-0001, schedule (5)(qq), "Post Conviction: DNA Court Proceedings (Ch. 943, Stats. 2001 and Ch. 821, Stats. 2000) (00-TC-21 and 01-TC-08)." (Id., p. 655; Sen. Bill No. 826 (2015-2016 Reg. Sess.) ch. 23, § 2, item 8885-295-0001, schedule (5)(qq), p. 650; Assem. Bill No. 97 (2017-2018 Reg. Sess.) ch. 14, § 2, item 8885-295-0001, schedule (5)(qq), p. 676.)
Under Government Code section 17581, subdivision (a), no local agency is required to implement or give effect to any statute during any fiscal year (1) if the statute has been determined by the Legislature to mandate a new program or higher level of service requiring reimbursement to local agencies pursuant to section 6 of article XIII B of the California Constitution, and (2) the statute has been specifically identified by the Legislature in the budget act for the fiscal year as being one for which reimbursement is not provided for that fiscal year. From this language, and without further explanation concerning how section 1405 is funded by the State of California, the People conclude that all funding for section 1405 has been suspended by the Legislature. There are, however, two aspects to the cost of a section 1405 hearing aside from the operation of the trial court itself. The first is the cost of counsel to represent defendant. The second is the cost of DNA testing, if—and only if—the trial court grants the defendant's motion for such testing after a contested hearing.
Section 1405 is silent on the issue of funding counsel to represent indigent defendants. Section 1405 does, however, address the costs associated with DNA testing:
"(1) The cost of DNA testing ordered under this section shall be borne by the state or the applicant, as the court may order in the interests of justice, if it is shown that the applicant is not indigent and possesses the ability to pay. However, the cost of any additional testing to be conducted by the district attorney or Attorney General shall not be borne by the convicted person.
"(2) In order to pay the state's share of any testing costs, the laboratory designated in subdivision (h) shall present its bill for services to the superior court for approval and payment. It is the intent of the Legislature to appropriate funds for this purpose in the 2000-01 Budget Act." (§ 1405, subd. (j).)
Subdivision (j) of section 1405 sets up a procedure wherein those defendants who are not indigent must pay for the cost of DNA testing while those who are indigent have the costs of testing borne by the state. Testing by the prosecutor is not borne by applicants but by the district attorney or the Attorney General. Laboratories must submit a bill for services to the superior court for approval and payment. The entire focus of this subdivision is on the costs associated with DNA testing, with no reference to the cost of counsel to pursue a section 1405 motion on behalf of a defendant.
The People have generally asserted that all funding for section 1405 proceedings has been suspended by the Legislature without specifically setting forth the funding and reimbursement procedure followed for this statute. These arguments were not made to the trial court and are raised for the first time on appeal. The People's citations to recent budgets and Government Code section 17581 do not establish, by themselves, how the Legislature's previous funding of section 1405 pertains or is relevant to the appointment of counsel for indigents. The People's argument fails to demonstrate how defunding section 1405 affects the appointment of counsel.
The budget provisions purporting to defund this statute are cryptic and explain little, if anything. Given the statutory scheme of section 1405, it appears to us that what has been unfunded by the Legislature is the funding for DNA testing by a laboratory, not funding for the appointment of counsel to represent indigent applicants pursuant to section 1405. The costs associated with providing indigent defendants counsel, which are borne in all kinds of postconviction legal proceedings by counties statewide, are as inherently a part of criminal proceedings as operating the courts responsible for conducting those proceedings. The additional legislative mandate appears to be the cost of DNA testing by a laboratory, and the People have failed to demonstrate otherwise.
Indigent defendants are routinely appointed counsel to pursue postconviction motions to withdraw pleas pursuant to section 1016.5 where the defendant asserts he or she was not advised of the immigration consequences of his or her plea. A petitioner seeking relief pursuant to Proposition 47 (§ 1170.18) is entitled to the appointment of counsel to pursue his or her petition once the petition itself sets forth a prima facie showing of applicability of the statute and the matter proceeds to a more formal hearing on the merits of the petition. (See People v. Rouse (2016) 245 Cal.App.4th 292, 296-301.)
The analysis in Rouse is instructive here. The Rouse court noted that a defendant's right to counsel did not emanate from the Sixth Amendment because a Proposition 47 petition was a postconviction proceeding. (People v. Rouse, supra, 245 Cal.App.4th at p. 300.) Rouse observed that a criminal defendant's right to counsel through a first appeal derives not from the Sixth Amendment but from the Fourteenth Amendment's due process and equal protection clauses. (Rouse, at p. 300, citing Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152, 155, and Douglas v. California (1963) 372 U.S. 353, 356-357.) Although a postconviction petition by an incarcerated defendant that is frivolous does not necessitate the appointment of counsel, once the defendant attacking the validity of a conviction states a prima facie case leading to issuance of an order to show cause, the appointment of counsel is demanded by due process concerns. (People v. Rouse, supra, at p. 300, citing In re Clark (1993) 5 Cal.4th 750 780 [petition for habeas corpus] and People v. Shipman (1965) 62 Cal.2d 226, 232-233 [petition for writ of coram nobis].)
Postconviction petitions for writs of coram nobis and Proposition 47 relief are procedurally similar and raise similar due process concerns to motions by defendants for DNA testing pursuant section 1405. As noted above, section 1405, subdivision (b) provides that once a defendant meets the required threshold, the trial court shall appoint counsel to represent the defendant in a section 1405 motion. Defendant's appellate counsel correctly observes the United States Supreme Court has expressed concern in situations where indigent criminal defendants are treated differently from their more prosperous counterparts. (See Griffin v. Illinois (1956) 351 U.S. 12, 13-20 [providing certified transcripts of trial proceedings for indigent defendants pursuing appeals]; Douglas v. California, supra, 372 U.S. at p. 356 [right to counsel on appeal permitted by state law].)
Thus, we would conclude that even if the right to counsel for pursuing a section 1405 motion was defunded by recent budgets enacted by the Legislature, defendant would still be entitled to representation of counsel to pursue a section 1405 motion. Counties are equipped to provide indigent defendants with legal representation both for trial and posttrial proceedings. The cost of such representation is unlikely to be substantially greater for a motion filed pursuant to section 1405 than it would be for any other postconviction proceeding meeting the prima facie showing necessary for further proceedings. We reject the People's proposed disposition that defendant's request for counsel to assist him in filing a motion for DNA testing be postponed until such time as the Legislature funds DNA testing for section 1405. We hold the trial court erred in denying defendant's motion for counsel to pursue his motion for DNA testing.
DISPOSITION
The trial court's ruling denying defendant appointment of counsel to assist him with a section 1405 motion is reversed, and the trial court's opinion denying defendant's section 1405 motion for DNA testing on the merits is vacated. The case is remanded with directions for the trial court to appoint counsel to represent defendant, should he remain indigent, to investigate the merits of filing a section 1405 motion and to prepare the motion if it appears to meet the requisite statutory criteria.
/s/_________
PEÑA, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
DETJEN, J.