Portee v. Superior Court

Filed 2/13/07  Portee v. Superior Court CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Petitioner David B. Portee attempted to file a request for appointment of counsel to investigate and prepare a motion for postconviction DNA testing as allowed by Penal Code section 1405.[1]  For unexplained reasons, the superior court failed to file his motion and returned it to him instead.  Petitioner has sought relief in this court by way of a petition for writ of mandate.  We shall issue a peremptory writ in the first instance directing the respondent court to file petitioner's motion and to consider its merits.

Petitioner has also filed a motion in this court, asking this court to directly appoint counsel for DNA testing.  We shall deny the motion.

I.                                    Background

Petitioner is an inmate at the State Prison Correctional Training Facility in Soledad.  In his writ petition he states that on May 10, 2006, he submitted a written request to the Santa Clara County Superior Court for appointment of counsel to prepare a motion for DNA testing pursuant section 1405.  The request was not filed but was returned to him along with a form letter from the Self-Service Center for the Santa Clara County Superior Court, dated May 17, 2006, which states:  â€