People v. Dunbar CA4/1

California Court of Appeal · D085300 · 2026-05-27 · Unpublished

Proceeding: appeal from a judgment
Trial court: Superior Court of San Diego County · No. SCE426590
Trial judge: Anthony J. Campagna
Outcome: affirmed — Affirmed.
Area: criminal
Panel: William S. Dato (author), O'Rourke, Truc T. Do

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T03:23Z · confidence high

The trial court denied Dunbar's motion to suppress evidence obtained during a traffic stop, deemed his prior Colorado convictions as strikes under the Three Strikes law, and convicted him of multiple felonies. The Court of Appeal affirmed the judgment, finding no error in the strike determinations, the flight instruction, or the claim of ineffective assistance of counsel.

Ruling reviewed	Standard	The court	The model
Denial of motion to suppress evidence based on traffic stop “The motion was denied, and Dunbar was bound over as to all counts following the preliminary hearing. His trial counsel did not renew his motion to suppress prior to trial.”	unclear	not reached	agree with court The appellate court did not review the merits of the suppression issue because the trial counsel failed to renew the motion to suppress prior to trial, thereby failing to preserve the issue for appeal. The court treated this failure as part of the ineffective assistance of counsel analysis rather than a direct review of the suppression ruling.
Determination that prior Colorado convictions qualify as strikes “Based on our review of the information in the records of conviction, there is no reasonable doubt that Dunbar’s Colorado convictions are strikes for purposes of California’s Three Strikes law.”	de novo	correct	agree with court The court applied the de novo standard of review for determining whether prior out-of-state convictions qualify as strikes. It correctly relied on the records of conviction to establish that the assault involved personal use of a firearm and the child abuse conviction met the elements of gross vehicular manslaughter, both of which are serious felonies under California law.
Giving of flight instruction (CALCRIM No. 372) to all counts “Dunbar neither objected to this instruction nor requested that the court clarify the counts to which this instruction applied. But to preserve this issue for appeal, Dunbar “was required to request an additional or clarifying instruction if he believed that the instruction was incomplete or needed elaboration.””	abuse of discretion	not reached	agree with court The court found that the issue was not preserved for appeal because the defendant did not object to the instruction or request a clarifying instruction at trial. Therefore, the appellate court did not review the merits of whether the instruction was properly given to all counts.
Ineffective assistance of counsel for failing to renew motion to suppress “This presumption is unrebutted where, as here, the record “ ‘ “sheds no light on why counsel … failed to act in the manner challenged.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960, 966.)”	de novo	not reached	agree with court The court applied the Strickland standard for ineffective assistance of counsel. It found that the record was insufficient to determine why counsel failed to renew the motion to suppress, and thus the presumption of competence was not rebutted. The court noted that the remedy for such a claim, if any, is via habeas corpus, not direct appeal.

Authorities

relied: Anders v. California (1967) 386 U.S. 738 — Establishes the procedure for appointed counsel to file a brief identifying potential arguable issues when no arguable issues are found.
relied: People v. Wende (1979) 25 Cal.3d 436 — Requires independent review of the entire record by the appellate court when appointed counsel files a Wende brief.
relied: People v. Kelly (2006) 40 Cal.4th 106 — Supports the requirement for independent review of the entire record in Wende/Anders cases.
relied: People v. Miles (2008) 43 Cal.4th 1074 — Establishes the standard of review for determining whether prior out-of-state convictions qualify as strikes.
relied: People v. Griffis (2013) 212 Cal.App.4th 956 — Holds that the entire record of conviction may be considered when determining if a prior conviction qualifies as a strike.
relied: People v. Maury (2003) 30 Cal.4th 342 — Requires a defendant to request a clarifying instruction to preserve an issue regarding an incomplete or unclear jury instruction for appeal.
relied: People v. Hoyt (2020) 8 Cal.5th 892 — States the two-prong test for ineffective assistance of counsel: (1) performance below objective standard of reasonableness, and (2) prejudice.
relied: People v. Mickel (2016) 2 Cal.5th 181 — Establishes the presumption that counsel's actions fall within the broad range of reasonableness.
relied: People v. Lopez (2008) 42 Cal.4th 960 — Holds that the presumption of competence is unrebutted when the record sheds no light on why counsel failed to act in a certain manner.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Indicates that claims of ineffective assistance of counsel that cannot be resolved on the direct appeal record may be raised via habeas corpus.
relied: People v. Wilson (2013) 219 Cal.App.4th 500 — Supports the determination that a child abuse conviction can meet the elements of gross vehicular manslaughter for Three Strikes purposes.

The appellate opinion: sound — The opinion is sound because it correctly applies the preservation rules to dismiss the flight instruction and suppression issues, and it properly applies the de novo standard and relevant case law to affirm the strike determinations. The court also correctly identifies that the ineffective assistance claim cannot be resolved on the current record and directs the appropriate remedy.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:29Z · confidence low

After a jury convicted Demetrius Dunbar of being a felon in possession of a firearm and ammunition, resisting an officer, giving false information, and drug offenses, the trial court found in a bench trial that two Colorado convictions (2009 second degree assault with a handgun; 2022 child abuse resulting in death) were strikes and sentenced him to four years; an earlier suppression motion had been denied and not renewed. On a Wende/Anders appeal with no supplemental brief from Dunbar, the Court of Appeal independently reviewed the record, addressed the three potential issues counsel flagged (strike findings, flight instruction, ineffective assistance for failing to renew the suppression motion), found no arguable issue, and affirmed.

Ruling reviewed	Standard	The court	The model
Trial court's bench-trial finding that Dunbar's two Colorado convictions (2009 second degree assault with a handgun and 2022 child abuse resulting in death) qualify as strikes under the Three Strikes law “Based on our review of the information in the records of conviction, there is no reasonable doubt that Dunbar’s Colorado convictions are strikes for purposes of California’s Three Strikes law.”	substantial evidence	correct	unsure The assault strike is well supported: Dunbar admitted he intentionally caused bodily injury 'by means of a deadly weapon, namely: handgun,' which satisfies personal use of a firearm or deadly weapon under section 1192.7, subdivision (c)(8) and (23), and would independently include the elements of assault with a deadly weapon. The child-abuse-resulting-in-death strike is more fragile: the court treated it as gross vehicular manslaughter (§ 192, subd. (c)(1)) made serious by section 1192.8 through personal infliction of great bodily injury, but the plea language quoted is disjunctive ('caused an injury to, or permitted to be unreasonably placed in a situation') and the facts about speed, the red light, and intoxication are described only as what 'the record of conviction reveals.' Under People v. Gallardo (2017) 4 Cal.5th 120, a sentencing court may rely only on facts necessarily established by the conviction (admitted in the plea or found by the jury), not on facts drawn from the broader record. The opinion does not cite Gallardo or say whether Dunbar admitted those facts, so I cannot confirm the finding was made on a permissible basis, though the result may well be right.
Trial court's giving of the consciousness-of-guilt flight instruction (CALCRIM No. 372) without limiting it to particular counts “Dunbar neither objected to this instruction nor requested that the court clarify the counts to which this instruction applied.”	de novo	correct	agree with court Section 1127c requires the flight instruction when the prosecution relies on flight evidence, and under People v. Maury a defendant who wants the instruction limited or clarified must request it or forfeit the complaint. The court applied the correct forfeiture rule. It did not discuss whether the claim affected substantial rights so as to be reviewable despite the lack of objection (§ 1259), but given that Dunbar's flight from the stop was probative of consciousness of guilt as to the contraband, false-identification, and resisting counts, there is no apparent prejudice, so the omission does not change the result.
Claim that trial counsel was ineffective for failing to renew the suppression motion in the superior court (and, implicitly, the denial of the suppression motion at the preliminary hearing, which was not preserved) “Because further briefing in this appeal cannot fill this gap in the record, Dunbar’s remedy, if any, is by way of habeas corpus.”	de novo	not reached	agree with court The court correctly applied the Strickland framework as stated in People v. Hoyt and the rule from People v. Mickel and People v. Lopez that a silent record cannot rebut the presumption of reasonable tactical choice, and under People v. Mendoza Tello such claims belong in habeas. The result is also supported on the merits implicitly: an unreadable rear plate supplies objectively reasonable suspicion of a Vehicle Code violation (Veh. Code, § 5201.1, subd. (c)(1)), so renewing the motion likely would have failed and no prejudice could be shown.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Appointed appellate counsel who finds no arguable issues may file a brief requesting independent review of the record by the Court of Appeal.
relied: Anders v. California (1967) 386 U.S. 738 — Procedure for appointed counsel who concludes an appeal is frivolous; court must independently examine the record.
relied: People v. Kelly (2006) 40 Cal.4th 106 — In a Wende appeal the court reviews the entire record and its opinion should describe the case and the issues considered.
relied: People v. Miles (2008) 43 Cal.4th 1074 — Standard of review for prior-conviction findings: the record is examined in the light most favorable to the judgment for substantial evidence.
relied: People v. Griffis (2013) 212 Cal.App.4th 956 — The record of conviction may be considered in determining whether a prior conviction qualifies as a serious felony; section 1192.7, subdivision (c) lists serious felonies constituting strikes.
relied: People v. Wilson (2013) 219 Cal.App.4th 500 — Cited by comparison on whether a vehicular manslaughter conviction qualifies as a serious felony under section 1192.8 through personal infliction of great bodily injury.
relied: People v. Maury (2003) 30 Cal.4th 342 — A defendant who believes an instruction is incomplete or needs elaboration must request a clarifying instruction or the claim is forfeited.
relied: People v. Hoyt (2020) 8 Cal.5th 892 — Ineffective assistance requires deficient performance and a reasonable probability of a more favorable result.
relied: People v. Mickel (2016) 2 Cal.5th 181 — Counsel's actions are presumed to fall within the broad range of reasonable professional assistance.
relied: People v. Lopez (2008) 42 Cal.4th 960 — An ineffective assistance claim fails on direct appeal where the record sheds no light on why counsel acted or failed to act.
relied: People v. Mendoza Tello (1997) 15 Cal.4th 264 — Ineffective assistance claims dependent on facts outside the record are more appropriately raised by habeas corpus.
relied: People v. Garrido (2005) 127 Cal.App.4th 359 — A suppression motion denied at the preliminary hearing must be renewed in the superior court to preserve the issue for appeal.
missed: People v. Gallardo (2017) 4 Cal.5th 120 — In determining whether a prior conviction qualifies as a strike, a court may rely only on facts necessarily established by the conviction (admitted by the defendant or found by the jury), not on facts drawn from the broader record of conviction such as preliminary hearing transcripts.

The appellate opinion: sound with gaps — The court addressed each potential issue with the governing authorities, and the forfeiture and ineffective-assistance analyses are plainly correct; the result is defensible. It skipped, however, People v. Gallardo's limit on the facts a court may use to characterize a foreign prior, and did not say whether the driving facts underlying the 2022 Colorado child-abuse conviction were admitted in the plea, leaving a gap in the strike analysis for that conviction.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 5/27/26 P. v. Dunbar CA4/1 NOT TO BE PUBLISHED IN 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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D085300

Plaintiff and Respondent, v. (Super. Ct. No. SCE426590)

DEMETRIUS DUNBAR,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Anthony J. Campagna, Judge. Affirmed. Richard L. Fitzer, under the appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent. Demetrius Dunbar appeals from a judgment of conviction after a jury found him guilty as charged of being a felon in possession of a firearm (Pen.

Code, § 29800, subd. (a)(1))1 and ammunition (§ 30305, subd. (a)(1)), resisting an officer (§ 148, subd. (a)(1)), giving false information to a peace officer (§ 148.9, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)), and possession of drug paraphernalia (id., § 11364). His appointed appellate counsel filed a brief pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) and People v. Wende (1979) 25 Cal.3d 436 (Wende), which identified three potential arguable issues. We granted Dunbar an opportunity to file a supplemental brief on his own behalf, but he did not do so. After reviewing the entire record (People v. Kelly (2006) 40 Cal.4th 106, 119), we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

While on patrol around midnight on July 24, 2024, La Mesa police officer Alex Ohlendorf noticed that the rear California license plate of a Buick a few car lengths ahead of him was unreadable. Suspecting that the driver may have unlawfully removed the plate’s reflective coating to obscure its characters, Ohlendorf conducted a traffic stop and pulled the car over.2 Dunbar was driving with a female passenger. The reason for the stop, Ohlendorf told Dunbar, was the plate’s missing reflective coating. During the stop, Dunbar produced a fake driver’s license, 1 Subsequent undesignated statutory references are to the Penal Code. 2 “A person shall not erase the reflective coating of, paint over the reflective coating of, or alter a license plate to avoid visual or electronic capture of the license plate or its characters.” (Veh. Code, § 5201.1, subd. (c)(1).) 2 something Ohlendorf wanted to investigate. He also wanted to investigate a pipe he saw in the Buick that he thought was the type used to smoke methamphetamine. Before Ohlendorf could do so, Dunbar attempted to escape by driving away. He led the officer on a short vehicle chase that ended at a dead end in a parking lot, at which time the Buick stopped and both passengers bolted. Ohlendorf immediately apprehended the woman; Dunbar was located a few moments later hiding in a bush. Officers found a useable amount of fentanyl on Dunbar’s person and a loaded gun in the woman’s purse, which she said belonged to Dunbar. They also found a bag of ammunition and more drug paraphernalia in the Buick. Before the preliminary hearing, Dunbar challenged the car stop in a motion to suppress. He contended that reasonable suspicion for the stop was lacking either because it was undisputed that the Buick’s rear license plate was visible from ten feet away or because Ohlendorf had no reason to believe the plate had been manipulated. The motion was denied, and Dunbar was bound over as to all counts following the preliminary hearing. His trial counsel did not renew his motion to suppress prior to trial. In addition to the charges for which Dunbar was convicted, the People alleged he suffered two prior convictions in Colorado that are strikes under California’s Three Strikes law. In 2009, Dunbar pleaded guilty to second degree assault by admitting “with intent to cause bodily injury to another, [he] unlawfully and feloniously caused bodily injury to [victim] by means of a deadly weapon, namely: handgun.” Dunbar’s second potential strike occurred in 2022 when he pleaded guilty to one count of child abuse resulting in death. He admitted that he “knowingly and recklessly … caused an injury to, or permitted to be 3 unreasonably placed in a situation that posed a threat of injury to, the life or health of a child [victim’s name] that resulted in the death of the child.” The record of conviction reveals that Dunbar was driving with three unrestrained passengers, including two children. While traveling 76 miles per hour in a 45 mile per hour zone, Dunbar ran a red light and struck a pickup truck. The unrestrained passengers were ejected from the car, and one of the children died at the scene from blunt force trauma. Dunbar was under the influence of methamphetamine, ecstasy, and marijuana at the time of the crash. After a bench trial on the People’s strike prior allegations, the court deemed Dunbar’s assault conviction a strike because (1) it included all the elements of subdivision (a)(1) of section 245, assault with a deadly weapon or other instrument other than a firearm, or (2) it involved the personal use of a firearm. His child abuse conviction was a strike, the court determined, because it met all the elements of vehicular manslaughter under section 192. The court sentenced Dunbar to four years in custody after considering his two strikes.

DISCUSSION

Appellate counsel filed a Wende brief requesting that we independently review the record for error. To assist our review, counsel’s brief identifies as potential arguable issues whether (1) Dunbar’s prior Colorado convictions qualify as strikes under California’s Three Strikes law, (2) the superior court erred in giving the flight instruction as to all counts, and (3) trial counsel was ineffective for failing to renew the motion to suppress in the superior court as required to preserve appellate review (People v. Garrido (2005) 127 Cal.App.4th 359, 363–365).

4 Based on our review of the information in the records of conviction, there is no reasonable doubt that Dunbar’s Colorado convictions are strikes for purposes of California’s Three Strikes law. (People v. Miles (2008) 43 Cal.4th 1074, 1083 [standard of review]; People v. Griffis (2013) 212 Cal.App.4th 956, 965 [entire record of conviction may be considered] (Griffis).) His assault conviction was a “serious felony” and thus a strike because he admitted to personally using a firearm. (§ 1192.7, subd. (c)(8), (23); Griffis, at p. 965 [§ 1192.7, subd.(c) identifies strikes].) And Dunbar’s child abuse conviction establishes the elements of gross vehicular manslaughter under subdivision (c)(1) of section 192, which also is a felony, because he acted with gross negligence and was solely responsible for the injury that resulted in the death. (§ 1192.8, subd. (a); cf. People v. Wilson (2013) 219 Cal.App.4th 500, 511–512.) The prosecution relied on evidence of Dunbar’s attempt to flee to show consciousness of guilt; accordingly, the trial court, as required by section 1127c, instructed the jury that his attempted flight from Ohlendorf may show that he was aware of his guilt. (CALCRIM No. 372.) Dunbar neither objected to this instruction nor requested that the court clarify the counts to which this instruction applied. But to preserve this issue for appeal, Dunbar “was required to request an additional or clarifying instruction if he believed that the instruction was incomplete or needed elaboration.” (People v. Maury (2003) 30 Cal.4th 342, 426; ibid. [“ ‘error cannot now be predicated upon the trial court’s failure to [elaborate or clarify] on its own motion’ ”].) Turning to Dunbar’s trial counsel’s failure to renew the suppression motion, a court will deem an attorney’s assistance ineffective only if a defendant shows that (1) counsel’s representation fell below an objective 5 standard of reasonableness under prevailing professional norms, and (2) a reasonable probability that, but for counsel’s failings, he or she would have obtained a more favorable result. (People v. Hoyt (2020) 8 Cal.5th 892, 958.) As a rule, we presume that a “counsel’s actions [fell] within the broad range of reasonableness.” (People v. Mickel (2016) 2 Cal.5th 181, 198.) This presumption is unrebutted where, as here, the record “ ‘ “sheds no light on why counsel … failed to act in the manner challenged.” ’ ” (People v. Lopez (2008) 42 Cal.4th 960, 966.) Because further briefing in this appeal cannot fill this gap in the record, Dunbar’s remedy, if any, is by way of habeas corpus. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266–267.) We have independently reviewed the entire record as required by Wende and Anders and found no additional arguable issues. Competent counsel has represented Dunbar on this appeal.

DISPOSITION

The judgment is affirmed.

DATO, J.

WE CONCUR:

O’ROURKE, Acting P. J.

DO, J.

Cites, in this corpus

People v. Hoyt S113653 · 2020-01-30
The People v. Wilson H037262 · 2013-09-05
People v. Griffis No. C070266 · 2013-01-14
People v. Miles S140413 · 2008-05-29
People v. Lopez S143615 · 2008-01-28
People v. Kelly S133114 · 2006-11-27
People v. Garrido D043758 · 2005-03-04
People v. Maury S012852 · 2003-06-18
People v. Mendoza Tello S055184 · 1997-04-17
People v. Wende Crim. 20851 · 1979-10-12