Original proceedings; petition for a writ of habeas corpus, after judgment and postjudgment order of the Superior Court of Orange County. Gregg L. Prickett, Judge. Petition granted. (Super. Ct. No. 93WF0246).
The opinion of the court was delivered by: Fybel, J.
CERTIFIED FOR PUBLICATION
We hold the constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72 (Benoit) applies to a petition for writ of mandate or prohibition under Penal Code section 1405, subdivision (j),*fn1 challenging a postjudgment order denying a motion to conduct DNA testing. Because Anthony Patrick Antilia satisfied the requirements for constructive filing, we grant his petition for writ of habeas corpus and deem his notice of appeal filed in December 2008 to constitute a timely filed petition for writ of mandate under section 1405, subdivision (j).
Pursuant to section 1405, subdivision (j), an order granting or denying a motion for performance of DNA testing is subject to appellate review only through a petition for writ of mandate or prohibition filed within 20 days after the order granting or denying the motion. Antilia asked his counsel to seek appellate review of the trial court‟s order denying, in part, his motion for DNA testing. His counsel promised to do so but did not file a writ petition in the statutorily required timeframe. Instead, counsel filed a notice of appeal about two months after the order was entered.
We ordered Antilia to submit a letter brief addressing our jurisdiction to hear his appeal. In response, Antilia filed a letter brief and a petition for writ of habeas corpus asking that we invoke the constructive filing doctrine of Benoit and issue a writ of habeas corpus deeming the notice of appeal, the letter brief, and the petition for writ of habeas corpus as a constructively filed petition for writ of mandate under section 1405, subdivision (j). We issued an order to show cause, and the Attorney General answered Antilia‟s petition for writ of habeas corpus.
Antilia‟s habeas corpus petition is, in effect, a request for a declaration Antilia constructively filed a petition for writ of mandate under section 1405, subdivision (j). That is an appropriate use of habeas corpus. (See In re Walters (1975) 15 Cal.3d 738, 744 ["habeas corpus is an appropriate procedure for disposing of the present case since it can be used by petitioner to obtain a declaration of rights in the prevailing circumstances"]; In re Gonsalves (1957) 48 Cal.2d 638, 639 [habeas corpus proper to obtain declaration that notice of appeal was constructively filed]; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Writs, § 17.)
II. ALLEGATIONS OF THE PETITION AND PROCEDURAL HISTORY
In June 1993, the Orange County District Attorney filed an information charging Antilia with one count of murder (§ 187, subd. (a)) and alleging the offense was a serious felony (§ 1192.7, subd. (c)(1)). The information also alleged Antilia had two prior prison term convictions. (§ 667.5, subd. (b).)
In December 1993, a jury found Antilia guilty of first degree murder. The jury found the two prior prison term convictions to be true but merged them into one. In January 1994, the trial court sentenced Antilia to a prison term of 25 years to life with the possibility of parole for the murder, and to an additional term of one year for the prior prison term enhancement. The verdict and sentence were affirmed on appeal.
In September 2005, Antilia filed a motion to conduct DNA testing. The court appointed the alternate defender to represent Antilia after the public defender declared a conflict. In July 2007, the alternate defender filed a motion for post-conviction DNA testing in accordance with section 1405. The motion requested DNA testing of 10 items.
The matter was assigned to the Honorable Gregg L. Prickett because the original trial judge was unavailable. Judge Prickett heard argument on April 18, June 13, and July 11, 2008, issued a tentative ruling on August 26, and heard final argument on October 10.
On October 31, 2008, a minute order was entered making Judge Prickett‟s tentative ruling the order on Antilia‟s motion for DNA testing. The order granted DNA testing of five items: (1) a grocery bag found around the victim‟s head; (2) handcuffs found around the victim‟s hands; (3) the victim‟s shoelaces; (4) a steak knife found on the side of Antilia‟s residence; and (5) a crowbar. The order denied DNA testing of the following five items on the ground Antilia made an ...