P. v. Silva CA5
Defendant Anthony Silva appeals from a postconviction order of the superior court denying his request for counsel to investigate whether to file a motion to determine the identity of deoxyribonucleic acid (DNA) on evidence gathered from him and from the victims of robbery and attempted murder. Defendant filed a motion in propria persona to have counsel appointed to assist him in having his DNA tested pursuant to Penal Code section 1405. After denying defendant’s motion for counsel, the trial court summarily decided the merits of defendant’s motion. Defendant contends the trial court erred in reaching the merits of his motion without first appointing him counsel. The People agree defendant was entitled to counsel to pursue his section 1405 motions, but argue that because the Legislature has not funded this statute for several years the county may, but is not obligated to, fund defense counsel to pursue the motion.
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