The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE DISTRICT
This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
On June 11, 2012, Plaintiff, a state prisoner, filed a purported civil rights complaint pursuant to 42 U.S.C. section 1983. Plaintiff's claims concern his attempts, in state post-conviction proceedings, to obtain DNA*fn1 testing of an alleged blood sample under procedures set forth in California Penal Code section 1405. Defendants are: (1) William Smith, Jr., the prosecutor at Plaintiff's criminal trial; and (2) Mary Sanchez, a deputy district attorney who opposed Plaintiff's extraordinary writ petition filed in the California Court of Appeal. Plaintiff sues both Defendants in their official capacities only,*fn2 and seeks only declaratory and injunctive relief.
On September 21, 2012, Defendant Sanchez filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Motion"), accompanied by a Request for Judicial Notice ("Defendant's Request for Judicial Notice"). On September 21, 2012, the Magistrate Judge issued a Minute Order inter alia stating that the Court might treat the Motion to Dismiss as a motion for summary judgment, and advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland, 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999).*fn3
On November 28, 2012, Plaintiff filed an Opposition to the Motion ("Opposition"), accompanied by a Request for Judicial Notice.*fn4 Defendant Smith has not appeared in the action.
CALIFORNIA'S POST-CONVICTION DNA TESTING PROCEDURE
California Penal Code section 1405 provides that any person convicted of a felony who is serving a term of imprisonment "may make a written motion before the trial court" requesting forensic DNA testing. Cal. Penal Code § 1405(a). Upon a proper showing, the court "shall" appoint counsel for an indigent prisoner to assist in the preparation of the motion, if the court previously has not appointed counsel for such a purpose. Cal. Penal Code § 1405(b)(1); see In re Kinnamon, 133 Cal. App. 4th 316, 323, 34 Cal. Rptr. 2d 802 (2005). A court which previously has appointed counsel under section 1405 has discretion to appoint counsel on a subsequent application. Cal. Penal Code § 1405(b)(3)(B).
To obtain an order for DNA testing, the applicant's verified motion must "do all of the following":
(A) Explain why the identity of the perpetrator was, or should have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability that the convicted person's verdict or sentence would be more favorable if the results of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing that was conducted previously by either the prosecution or defense, if known.
(E) State whether any motion for testing under this section previously has been filed and the results of that motion, if known.
Cal. Penal Code § 1405(c)(1).
The court has discretion to order a hearing on the motion. Cal. Penal Code § 1405(e). If the court finds that evidence previously was subject to DNA or other forensic testing, the court "shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes." Cal. Penal Code § 1405(d). The court "shall" grant the motion if it determines that all of the following have been established:
(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion.
(2) The evidence to be tested has been subject to a chain of custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect.
(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case.
(4) The convicted person has made a prima facie showing that the evidence sought to be tested is material to the issue of the convicted person's identity as the perpetrator of, or accomplice to, the crime, special circumstance, or enhancement allegation that resulted in the conviction or sentence.
(5) The requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction. The court in its discretion may consider any evidence whether or not it was introduced at trial.
(6) The evidence sought to be tested meets either of the following conditions:
(A) The evidence was not tested previously.
(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results.
(7) The testing requested employs a method generally accepted within the relevant ...