Filed 5/24/21 P. v. Swanigan CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B309387
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA038012)
v.
DAMON EDWARD SWANIGAN,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Juan Carlos Dominguez, Judge. Appeal dismissed.
Richard B. Lennon, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
________________________________
Damon Swanigan appeals from an order denying his motion
to correct his sentence. For the reasons explained below, we
dismiss the appeal.
BACKGROUND
In 1998, a jury convicted Swanigan of two counts of robbery
and found that he used a firearm in committing the offenses. (Pen.
Code, §§ 211, 12022.5, subd. (f).) Two prior serious felony
convictions and “strikes” were also found true, and the court
sentenced Swanigan to 25 years to life, plus 10 years for the firearm
use finding and 10 years for the two prior serious felony convictions.
We affirmed the conviction and sentence in an unpublished
opinion.
On 2020, Swanigan filed a motion in the superior court to
correct an unauthorized sentence, arguing that when the court at
his trial asked him whether he would submit to a court trial on the
truth of the allegations regarding his prior convictions, the court
misinformed him regarding the elements necessary to sustain the
allegations. Swanigan argued the court told him that the only issue
would be whether a five-year period had elapsed between his
release from custody in a prior case and his commission of the new
offense, as opposed to finding that he had in fact suffered the prior
convictions. Swanigan argued that findings the trial court made
after this misrepresentation were therefore unlawful, and his strike
sentence based on them likewise unlawful.
The trial court summarily denied Swanigan’s petition on the
ground that his case had long been final.
Swanigan appealed.
Swanigan’s appellate counsel filed a brief raising no issues on
appeal and requesting that we independently review the record
pursuant to People v. Serrano (2012) 211 Cal.App.4th 496 (Serrano)
to determine if the lower court committed any error. Counsel sent a
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copy of the brief and the record to Swanigan and informed him that
he may file a supplemental brief. On April 6, 2021, we sent a letter
to Swanigan informing him that he may submit by brief or letter
any grounds of appeal contentions, or argument that he wished us
to consider. He has not responded.
“Where a defendant has been afforded all the constitutional
protections of a first appeal of right,” he is not entitled to our
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436. But when Wende does not apply, an appellant
in a criminal case has the right to file a supplemental brief and to
our review of his or her contentions. (See Serrano, supra, 211
Cal.App.4th at p. 503.)
We are satisfied that Swanigan’s counsel has fully complied
with his responsibilities. (See Serrano, supra, 211 Cal.App.4th at
p. 503.) In the absence of any supplemental brief, we conclude
there is no arguable issue and dismiss the appeal.
DISPOSITION
The appeal is dismissed.
NOT TO BE PUBLISHED
CHANEY, J.
We concur:
BENDIX, Acting P. J.
FEDERMAN, J.*
*
Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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