Skip to content
Name: In re Antillia
Case #: G041453
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 08/11/2009

The constructive filing doctrine of In re Benoit (1973) 10 Cal.3d 72 applies to a petition for writ of mandate/prohibition under Penal Code section 1405 subdivision (j), which authorizes DNA testing. Penal Code section 1405 allows an incarcerated felon to make a motion for DNA testing. Under subdivision (j), review of a ruling on such a motion is by writ of mandate/prohibition with a specified 20-day filing requirement commencing from the date of the ruling. In this case, the appellate court extended the constructive filing doctrine of Benoit to section 1405, subdivision (j), finding that the rationale underlying Benoit (to alleviate the harshness of the jurisdictional rule in compelling circumstances) applied to the writ which was sufficiently similar to an appeal. Here, Antillia satisfied the factual requirements for constructive filing – trial counsel submitted a declaration that Antillia requested his assistance regarding the denial of the writ, and counsel said he would do so, but counsel then filed an ineffective notice of appeal which Antillia had no reason to believe was not sufficient.