Filed 7/14/21 P. v. Donovan CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081240
Plaintiff and Respondent,
(Super. Ct. No. CRF43024)
v.
JEREMIAH JAMES DONOVAN, OPINION
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tuolumne County. Donald I.
Segerstrom, Jr., Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Michael
Chamberlain, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for
Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Poochigian, J. and Franson, J.
Defendant Jeremiah James Donovan stands convicted of assault with a deadly
weapon. After his conviction was affirmed, he filed a motion for deoxyribonucleic acid
(DNA) testing of evidence pursuant to Penal Code section 1405.1 His motion was
denied, and he filed a notice of appeal. He contends that we should (1) construe his
notice of appeal as a timely filed petition for writ of mandate, and (2) conclude that the
trial court erred in finding that (a) defendant’s identity was not a significant issue in the
case and (b) DNA testing would not have led to a reasonable probability of a more
favorable result. The People argue that defendant’s appeal should be dismissed or, if we
construe the notice of appeal as a timely petition for writ of mandate, denied on the
merits. We dismiss the appeal.
PROCEDURAL SUMMARY
On April 14, 2014, the Tuolumne County District Attorney filed an amended
information charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1)).
The amended information alleged defendant personally inflicted great bodily injury
(§ 12022.7, subd. (a)), was on bail or his own recognizance at the time of the crime
(§ 12022.1), had suffered a prior “strike” conviction within the meaning of the “Three
Strikes” law (§ 667, subds. (b)–(i)), had suffered a prior serious felony conviction (§ 667,
subd. (a)(1)), and had served a prior prison term (§ 667.5, subd. (b)).
On September 3, 2014, defendant admitted the prior conviction and on-bail
allegations. On September 5, 2014, the jury found defendant guilty of assault with a
deadly weapon and found true the allegation that he personally inflicted great bodily
injury.
On October 20, 2014, the trial court sentenced defendant to a term of 18 years in
prison.2
1 All further statutory references are to the Penal Code.
2 On the same date, defendant was sentenced to a consecutive term of two years
four months for possession of methamphetamine for sale on an unrelated case.
2.
On October 4, 2016, this court affirmed defendant’s conviction.
On February 18, 2020, defendant filed a first amended motion for DNA testing
and request for appointment of counsel.
On April 2, 2020, the trial court denied his motion for DNA testing without
prejudice and appointed counsel “ ‘to investigate and, if appropriate, to file a
[subsequent] motion for DNA testing ….”
Defendant filed a notice of appeal. The notice was dated April 10, 2020, and was
received on April 21, 2020, however it was not filed until May 29, 2020.3
FACTUAL SUMMARY
“Prosecution’s Case
“On January 4, 2014 at 4:31 a.m., Zane Monroe called 911 from his
girlfriend, Bonnie Palmer’s, house. He said to the dispatcher, ‘[S]omeone
just split the back of my head with a flashlight hella hard’ and ‘I need an
ambulance.’ He said ‘Miah’ was the person who hit him and there was
someone else with Miah. Monroe explained Miah accused him of stealing
a sluice box. He then stated that he was ‘preparing to fight for [his] life’
and was ‘s-s-seriously bleeding.’
“Sheriff’s Deputy Brandon Green responded to the call. When he
arrived, he noticed a large gash on the right side of Monroe’s head.
Monroe told Sheriff’s Sergeant Eric Erhardt, who also responded to the
call, that Miah hit him. Monroe was taken to the hospital where he
received approximately seven staples for his injury.
“Deputy Green then interviewed Palmer. She said she was asleep
when she heard someone yelling outside of her residence. She tried to
wake Monroe and then heard someone enter the house through the front
door. She recognized the yelling voice to be Miah’s, whom she also
identified as [defendant]. Monroe went to the living room and began
arguing with Miah so loudly about a sluice box that Palmer told them to
take it outside. After the men went outside, Palmer said she heard a loud
clink and looked out the window and saw Miah standing over Monroe with
a dark object which she thought may have been a flashlight. She did not
3 The proof of service was dated April 16, 2020, and the envelope was postmarked
April 17, 2020.
3.
actually see Monroe get hit. She then saw Miah and the person he was with
walk down the driveway and then heard the sound of a quad or dirt bike
start up.
“Deputy Green and Deputy Robert Nikiforuk then went to
[defendant]’s house and noticed a sluice box and one or two dirt bikes out
front. They made contact with his wife, Thoris Donovan, who said
[defendant] left around 1:30 a.m. that morning to go to a neighbor’s house
and was gone less than an hour. Deputy Nikiforuk then contacted
[defendant], who said he had been home all night, except that he had gone
to a friend’s house down the street for a short period of time.
“Sergeant Erhardt advised [defendant] of his Miranda4 rights. He
denied going to Monroe’s house and denied hitting him, and continued
these denials even after being confronted with accusations by Monroe and
Palmer. The officers found a flashlight next to the kitchen sink and located
a gray plaid shirt matching the clothing description given by Monroe and
Palmer.
“Monroe was subpoenaed for trial, but did not appear. Instead, the
prosecutor introduced the 911 call made by Monroe.
“At trial, Palmer characterized [defendant] as a ‘good friend,’ and
stated they called each other cousins even though they were not related. On
the witness stand, she denied knowing who Monroe was arguing with and
stated that she did not know who hit him. She explained she had a bad
memory because of head trauma from a car accident and also because of a
brain tumor.”
“Defense [Case]
“A recording of a call made by Monroe to defense counsel’s office
on August 8, 2014, was played for the jury. In the call, Monroe said he was
aware the call was being recorded. He said all he remembered of the
incident was that he was asleep in bed when he was struck in the back of
the head. He denied knowing who hit him and what he was hit with. He
said Palmer does not know what happened either, because she was asleep
next to him. He said he told the police he fingered [defendant] because he
was angry with him because of problems that they had in the past. He
admitted to taking a sluice box without consent, but nevertheless said he
did not think [defendant] would hit him with a ‘flashlight.’ But
4 Miranda v. Arizona (1966) 384 U.S. 436.
4.
immediately after saying that, he said that he did not know what hit him.
He then added he did not know [defendant] to be violent. He concluded by
saying he was ‘sorry for all the trouble.’ ”
DISCUSSION
Section 1405, subdivision (a) provides: “A person who was convicted of a felony
and is currently serving a term of imprisonment may make a written motion, pursuant to
subdivision (d), before the trial court that entered the judgment of conviction in his or her
case, for performance of forensic deoxyribonucleic acid (DNA) testing.”
Section 1405, subdivision (g) directs the trial court to grant the motion for DNA
testing if eight conditions are met. At issue here are the third and fifth conditions.
Subdivision (g)(3) requires the moving party to establish that “[t]he identity of the
perpetrator of the crime was, or should have been, a significant issue in the case.”
(§ 1405, subd. (g)(3).) Subdivision (g)(5) requires the moving party to establish that
“[t]he 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.” (§ 1405, subd. (g)(5).) Here, the trial court denied defendant’s motion, finding
neither the third nor the fifth condition was established.
“An order granting or denying a motion for DNA testing” is not appealable and is
“subject to review only through petition for writ of mandate or prohibition …. The
petition [must] 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.” (§ 1405, subd. (k).)
As a threshold matter, defendant did not file a petition for writ of mandate or
prohibition within 20 days after the trial court’s denial of his motion for DNA testing.
Instead, he mailed—and the trial court received—a notice of appeal within 20 days of the
5.
denial of his motion. Defendant contends we should treat this appeal as a constructively
filed petition for writ of mandate. We disagree.
The constructive filing doctrine can be applicable in the section 1405,
subdivision (k) context under appropriate circumstances. (In re Antilia (2009)
176 Cal.App.4th 622, 630–631.) The “doctrine was developed to ‘alleviate the
harshness’ of … [an otherwise unforgiving] jurisdictional rule in compelling
circumstances.” (Antilia, at p. 631.) The People argue that the constructive filing
doctrine is inapplicable here because no compelling or unusual circumstances require its
application.5 Here, the People argue, the fault for defendant’s failure to file a petition for
writ of mandate lies only with defendant. He did not fall victim to an attorney who
misled him regarding the sufficiency of a notice of appeal to preserve his rights under
section 1405 (Antilia, at pp. 631–632), there was not a lack of clarity regarding
nonappealability of an order pursuant to section 1405 (Olson v. Cory (1983)
35 Cal.3d 390, 400–401), and no institutional hurdle or malfeasance by prison personnel
prevented defendant from filing an appropriate petition (People v. Slobodion (1947)
30 Cal.2d 362, 366). No compelling or unusual circumstances require application of the
constructive filing doctrine. We will therefore dismiss defendant’s appeal.
Moreover, dismissal of the appeal is also appropriate because, even if we
considered the merits of defendant’s petition, we would conclude that the trial court’s
order need not be disturbed. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
745 [where a party requests that a notice of appeal be construed as a petition for writ of
mandate, but the petition would be denied on its merits, the appeal should be dismissed].)
5 The People also contend that, even if we treat defendant’s notice of appeal as a
petition for writ of mandate, it was untimely because it was not filed within 20 days of
the order denying his motion as required by section 1405, subdivision (k). However,
defendant mailed the notice within 20 days and it was received by the trial court within
20 days. The trial court simply did not mark the notice “filed” until outside of the 20-day
period. We cannot fault defendant on that account.
6.
We agree with the trial court’s assessment that defendant’s identity as the perpetrator of
the crime was not, and should not have been, a significant issue in the case or that
favorable DNA testing results would have raised a “reasonable probability” of a more
favorable result. (§ 1405, subd. (g)(3), (5); Richardson v. Superior Court (2008)
43 Cal.4th 1040, 1050.) The term “reasonable probability” as used in section 1405,
subdivision (g)(5) has the same meaning as it does under Strickland v. Washington (1984)
466 U.S. 668 and People v. Watson (1956) 46 Cal.2d 818. (Richardson, at p. 1050.) In
other words, the condition set out in section 1405, subdivision (g)(5) is satisfied if
favorable DNA results, in light of all the evidence, would lead to the conclusion that a
more favorable verdict would be reached by “ ‘a probability sufficient to undermine
confidence in the outcome’ ” or “ ‘a reasonable chance, more than an abstract
possibility.’ ” (Richardson, at p. 1050.)
Here, as the trial court noted, Monroe identified defendant as the assailant in the
911 call and Monroe and Palmer identified defendant as the assailant to the investigating
officers. “Both described [] defendant as a close friend, whom they knew well.” Monroe
described defendant as having accused him of stealing a sluice box and having hit him
with a “Mag-Lite” style of flashlight. Palmer described recognizing defendant’s voice
before she saw him, hearing the argument between defendant and Monroe regarding the
sluice box, directing the two arguing men to go outside, and later hearing “a loud clink”
and seeing defendant wearing a plaid shirt and “standing over” Monroe “with a dark
object which she thought may have been a flashlight.” Defendant and another person
then left Palmer’s home on a “dirt bike” or “quad.” When officers went to defendant’s
home, they “noticed a sluice box and one or two dirt bikes out front.” Inside defendant’s
home, the officers found a flashlight and a plaid shirt matching the descriptions that
Monroe and Palmer had given to the officers. Despite Monroe’s nonappearance at trial
and Palmer’s recantation, the evidence established that defendant was the assailant. As
the trial court noted, “[t]his was not a close case.” There is no reasonable probability that
7.
an absence of Monroe’s DNA on the flashlight, sluice box, or plaid shirt would have
resulted in a better outcome for defendant. (Richardson v. Superior Court, supra,
43 Cal.4th at p. 1050.) Therefore, for that separate reason, we dismiss defendant’s appeal
and do not construe it as a petition for writ of mandate.
DISPOSITION
Defendant’s appeal is dismissed.
8.