People v. King CA3

Filed 5/5/23 P. v. King CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096664

Plaintiff and Respondent, (Super. Ct. No. 99F07845)

v.

DAVID KING,

Defendant and Appellant.

In 2001, a jury convicted defendant David King of first degree robbery and burglary with true findings that he had suffered two prior strikes, two prior serious felony convictions, and two prior prison terms resulting in an aggregate prison term of 25 years to life, plus a 12-year determinate term. We modified this judgment on appeal to correct an error in custody credits and affirmed the judgment as modified. (People v. King (Nov. 26, 2002; C037815) [nonpub. opn.].)

1

On June 27, 2022, defendant acting in propria persona filed a motion entitled “motion for discovery and/or correction/expungement of erroneous information affecting ‘liberty interests’ and ‘due process’ 1203.01 (cook motion).” (Capitalization omitted.) This motion argued the trial court had jurisdiction to correct two errors in defendant’s probation report pursuant to Penal Code section 1203.01 as interpreted by In re Cook (2019) 7 Cal.5th 439 (Cook). (Subsequent undesignated statutory references are to the Penal Code.) Specifically, defendant complained: (1) the report incorrectly stated his prints were found on items in the victim’s residence and (2) mischaracterized his prior conviction as first degree, instead of second degree burglary. While defendant conceded that he was not a youthful offender, he argued the high court’s interpretation of section 1203.01 entitled him to correct the record for use in his future parole hearings. On July 14, 2022, the trial court denied defendant’s motion in light of defendant’s admission that he was not a youthful offender, stating, “defendant has not shown that he is entitled to a [] section 1203.01/Cook hearing.” Defendant appealed arguing the trial court erred in refusing to consider his motion to correct the probation report and seeking reversal and remand. The People concur that the case should be remanded for the trial court to consider defendant’s motion. We disagree that defendant is entitled to litigate any inaccuracies allegedly contained within defendant’s original probation report, but recognize that he is entitled to file his own section 1203.01 statement for transmission to the Department of Corrections and Rehabilitation. Accordingly, we will remand the matter so that the trial court may inform defendant of this right and will otherwise affirm the judgment.