Opinion
E054403
11-04-2011
In re KENNETH ROBERT BROWN on Habeas Corpus.
Kenneth Robert Brown, in pro. per., for Petitioner. Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, and Holly D. Wilkens, Deputy Attorney General, for Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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. ICR17942)
OPINION
ORIGINAL PROCEEDINGS; petition for writ of habeas corpus. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Petition granted.
Kenneth Robert Brown, in pro. per., for Petitioner.
Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, and Holly D. Wilkens, Deputy Attorney General, for Respondent.
The court has read and considered the petition for habeas corpus and the informal response filed by the Attorney General. The Attorney General concedes petitioner is entitled to the appointment of an attorney. Given the Attorney General's concession, this court may grant relief without issuance of a writ of habeas corpus or an order to show cause. (People v. Romero (1994) 8 Cal.4th 728, 740, fn. 7.) Accordingly, the petition for writ of habeas corpus is GRANTED.
Petitioner filed a written request with the trial court stating that he is presently confined for an offense he did not commit, that deoxyribonucleic acid (DNA) testing is relevant to his assertion of innocence, that he is indigent, and that he has not previously requested appointment of counsel to pursue a motion for DNA testing. Therefore, he has stated a prima facie basis for appointment of counsel. Penal Code section 1405, subdivision (b)(1), requires that a court appoint an attorney to represent an indigent convicted person to prepare a motion for performance of DNA testing.
The appropriateness of filing a motion for DNA testing is not to be determined when the person requests appointment of counsel. (In re Kinnamon (2005) 133 Cal.App.4th 316.) Therefore, we must conclude that the trial court erred in denying petitioner's request for appointment of counsel.
DISPOSITION
The Superior Court of Riverside County is directed to appoint counsel solely for the purpose of (1) investigating the appropriateness of DNA testing as to petitioner's conviction, and (2) filing a motion for DNA testing if counsel's investigation reveals that such testing would be appropriate under Penal Code section 1405.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur: McKINSTER
J.
KING
J.