People v. Givens CA3

Filed 10/21/22 P. v. Givens CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C096064

Plaintiff and Respondent, (Super. Ct. No. 09F09120)

v.

DOMINIQUE GIVENS,

Defendant and Appellant.

Defendant Dominique Givens appeals from the denial of his postjudgment motion seeking appointment of counsel and a supplemental hearing pursuant to In re Cook (2019) 7 Cal.5th 439 and People v. Franklin (2016) 63 Cal.4th 261. Defendant’s appointed appellate counsel has filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)

1

As we will explain, we exercise our discretion to review the record for arguable error in defendant’s favor and, having done so, affirm the trial court’s order denying the motion. BACKGROUND In July 2012, defendant pleaded no contest to voluntary manslaughter (Pen. Code, § 192, subd. (a))1 and admitted an arming enhancement (§12022.5, subd. (a)). The trial court sentenced him to 21 years in state prison. In September 2018, he filed a petition for writ of habeas corpus seeking a hearing pursuant to People v. Franklin, supra, 63 Cal.4th 261. The trial court issued an order to show cause. Following our Supreme Court’s decision in In re Cook, supra, 7 Cal.5th 439, the trial court construed defendant’s petition as requesting a section 1203.01 proceeding. Accordingly, on October 25, 2019, defendant filed additional materials in accordance with section 1203.01 and In re Cook. On December 23, 2021, defendant filed a motion seeking appointment of counsel and for a second supplemental sentencing hearing pursuant to section 1203.01 and In re Cook, supra, 7 Cal.5th 439. On March 29, 2022, the trial court denied the motion, finding defendant had ample opportunity to present his section 1203.01 materials at the 2019 hearing. Defendant timely appealed from the order denying his motion. The case was fully briefed on September 2, 2022, and assigned to this panel shortly thereafter. DISCUSSION Appointed counsel filed an opening brief setting forth the facts of the case and asking this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing the