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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
1 Further undesignated statutory references are to the Penal Code.
2
opening brief. More than 30 days have elapsed, and we received no communication from
defendant.
Whether the protections afforded by Wende and the United States Supreme
Court’s decision in Anders v. California (1967) 386 U.S. 738 apply to an appeal from an
order denying a postconviction motion for a Cook/ Franklin hearing is an open question.
The California Supreme Court has not addressed the issue.
In this case, we exercise our discretion to review the matter. Having exercised our
discretion to review this postconviction proceeding for error, and having undertaken an
examination of the entire record accordingly, we find no arguable error that would result
in a disposition more favorable to defendant.
DISPOSITION
The March 29, 2022, order of the trial court denying defendant’s motion is
affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Renner, J.
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