In Re Antilia

I.

Introduction

We hold the constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72 [ 109 Cal.Rptr. 785 , 514 P.2d 97 ] (Benoit) applies to a petition for writ of mandate or prohibition under Penal Code section 1405, subdivision (j), challenging a postjudgment order denying a motion to conduct DNA testing. Because Anthony Patrick Antilia satisfied the requirements for constructive filing, we grant his petition for writ of habeas corpus and deem his notice of appeal filed in December 2008 to constitute a timely filed petition for writ of mandate under section 1405, subdivision (j).

Pursuant to section 1405, subdivision (j), an order granting or denying a motion for performance of DNA testing is subject to appellate review only through a petition for writ of mandate or prohibition filed within 20 days after the order granting or denying the motion. Antilia asked his counsel to seek appellate review of the trial court’s order denying, in part, his motion for DNA testing. His counsel promised to do so but did not file a writ petition in the statutorily required timeframe. Instead, counsel filed a notice of appeal about two months after the order was entered.

We…