Filed 7/18/13 Smith v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



ARTHUR D. SMITH,

         Petitioner,                                                     E058810

v.                                                                       (Super.Ct.No. RIF130256)

THE SUPERIOR COURT OF                                                    OPINION
RIVERSIDE COUNTY,

         Respondent;

THE PEOPLE,

         Real Party in Interest.



         ORIGINAL PROCEEDINGS; petition for writ of mandate. Edward D. Webster,

Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant

to art. VI, § 6 of the Cal. Const.) Petition granted.

         Arthur D. Smith, in. pro. per., for Petitioner.

         No appearance for Respondent.




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       Kamala D. Harris, Attorney General, and Holly D. Wilkens, Deputy Attorney

General, for Real Party in Interest.

       The court has read and considered the petition for writ of mandate and the

informal response filed by the Attorney General. The Attorney General concedes that

petitioner is entitled to the appointment of an attorney. Given this concession, this court

may grant relief without issuance of an alternative writ or an order to show cause. (Code

Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-

179.) Accordingly, the petition for writ of mandate 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, and the court was required by Penal

Code section 1405, subdivision (b)(1), to appoint an attorney to prepare a motion for

performance of DNA testing.

                                       DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court of Riverside

County to vacate its previous denial and 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.




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       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 CODRINGTON
                                                                           Acting P. J.


We concur:


HOLLENHORST
                           J.


KING
                           J.




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