Filed 10/11/17 P. v. Ornelas CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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A jury found defendant Rudy Joseph Ornelas guilty of attempted murder, felon in possession of a firearm, and assault with a semiautomatic firearm, along with enhancements for intentionally and personally discharging a firearm and personally using a firearm. The trial court sustained a strike and four prior prison term allegations and sentenced him to 45 years in state prison. We affirmed the conviction on appeal in an unpublished opinion. (People v. Ornelas (Feb. 14, 2012, C065884) [nonpub. opn.].)

Defendant’s argument at trial was that Claudio Magobet was the shooter. Magobet was originally charged as a codefendant but eventually testified as a prosecution witness as part of a plea agreement. Magobet testified that he gave defendant his own loaded handgun, which defendant used to shoot the victim.

In February 2016, defendant filed a pro se motion for the appointment of counsel to prepare a Penal Code[1] section 1405 motion for DNA testing. The trial court appointed counsel, who filed a motion for DNA testing of the shell casings. Defendant also filed a sworn declaration asserting DNA testing of shell casings found at the scene would show Magobet’s DNA on the casings rather than his DNA.

The trial court denied the motion following a contested hearing, finding Magobet’s ownership of the gun was not at issue in the trial, and the prosecution never argued that defendant loaded Magobet’s gun.

Section 1405 permits a person convicted of a felony and currently serving a term of imprisonment to file a motion to order DNA testing before the trial court that entered the judgment of conviction. (§ 1405, subd. (a).) The motion will be granted if there is evidence available for testing that can be tested, a chain of custody is established, the identity of the perpetrator was an issue in the case, the convicted person makes a prima facie case that the evidence to be tested is material to the identity issue, and there is a reasonable probability of a more favorable verdict if the results of the DNA testing had been available at the time of conviction. (§ 1405, subd. (g).)

Defendant appeals from denial of his motion for DNA testing. His appointed counsel asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)

DISCUSSION

“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 petition shall be filed within 20 days after the court’s order granting or denying the motion for DNA testing. In a noncapital case, the petition for writ of mandate or prohibition shall be filed in the court of appeal. In a capital case, the petition shall be filed in the California Supreme Court. The court of appeal or California Supreme Court shall expedite its review of a petition for writ of mandate or prohibition filed under this subdivision.” (§ 1405, subd. (k).)

The trial court’s order denying defendant’s motion is not an appealable order. We shall therefore dismiss the appeal. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208.)

DISPOSITION

The appeal is dismissed.

/s/

Robie, J.

We concur:

/s/

Raye, P. J.

/s/

Hoch, J.