People v. Weisner CA3

Filed 12/16/22 P. v. Weisner CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C095872

Plaintiff and Respondent, (Super. Ct. No. 21FE010891)

v.

FRANKIE JAMES WEISNER,

Defendant and Appellant.

Appointed counsel for defendant Frankie James Weisner filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief arguing he was not brought to trial within 90 days of delivering appropriate notice to the district attorney, he was forced to wear physical restraints at trial without a showing of manifest need , and the People committed misconduct at trial. After examining the record and considering defendant’s contentions in his supplemental brief, we find no arguable error that would result in a disposition more favorable to defendant and affirm.

1

BACKGROUND While defendant was serving his term in prison for a different offense, a correctional officer found “a small piece of metal, sharpened to the tip” in defendant’s cell on November 18, 2020. The People charged defendant with possession of a sharp instrument while confined in a penal institution (Pen. Code, § 4502, subd. (a))1 , and alleged a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12). At the pretrial conference, defendant objected to the trial date, alleging he deposited a section 1381 demand into the prison mail system on October 11, 2021, thus entitling him to a trial date within 90 days of October 11, 2021. The district attorney, on the other hand, claimed her office received the demand on October 14, 2021. The trial started on January 10, 2022. The next day, a jury found defendant guilty and found true the prior felony allegation. The trial court sentenced defendant to four years in state prison. Defendant timely appealed. DISCUSSION We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requesting that this court review the record to determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised that he may, within 30 days of the filing of the opening brief, file a supplemental brief to address any issues he believes deserve review. Defendant filed a supplemental brief, arguing: (1) the trial court lacked jurisdiction to sentence him because he was not brought to trial within 90 days of his section 1381 demand; (2) the trial court violated his right to a fair trial because he was forced to wear physical restraints absent a showing of manifest need ; and (3) the People committed prosecutorial misconduct by requestioning witnesses who had already