People v. Dunn CA2/6

Opinion

Filed 9/14/26 P. v. Dunn CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B345971 (Super. Ct. No. 2024008442) Plaintiff and Respondent, (Ventura County)

v.

SEAN DUNN,

Defendant and Appellant.

Sean Dunn appeals after a jury convicted him of assault with intent to commit sexual penetration by force, fear, or threats (Pen. Code, 1 §§ 220, 289) and simple battery (§ 242). Appellant contends the trial court abused its discretion by denying his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). We will affirm. FACTUAL AND PROCEDURAL BACKGROUND A.G. met appellant in a walkway behind Walmart. The two engaged in small talk and drank alcohol together. A.G. had been drinking Jameson for about one to two hours before meeting 1 Undesignated statutory references are to the Penal Code. appellant. A.G. had trouble remembering the incident due to intoxication. A.G. remembered at some point being in bushes near an apartment complex. Appellant forced himself on A.G. He pulled the back of A.G.’s hair. A.G. told appellant to stop and was “just trying to get away.” Appellant put his fingers in A.G.’s vagina. A.G. did not consent to any sexual activity with appellant. Kelly Donnelly was walking her dog in “broad daylight.” She heard a woman repeatedly say “get off me, get off me right now.” When she looked into the bushes, Donnelly saw A.G. flat on her back with appellant on top of her. Appellant was making sexual motions. Donnelly “yelled get the F off her.” Donnelly felt she needed to yell because appellant was not listening to A.G. Appellant did not immediately stop. Another person arrived and called the police. In body-worn video, A.G. said appellant tried to “hump” her. She said appellant tried to take her pants off and put “it” in. A.G. thought appellant was going to rape her. Eventually, after A.G. went to the police department, an ambulance had to be called due to her level of intoxication. The jury convicted appellant of assault with the intent to commit sexual penetration by force, fear, or threats (§§ 220, 289; count 1) but found not true the allegation that appellant engaged in violent conduct indicating a serious danger to society (Cal. Rules of Ct., rule 4.421(b)(1)). The jury found appellant not guilty of sexual penetration by force, fear, or threats (§ 289, subd. (a)(1)(A); count 2) and instead found him guilty of the lesser included offense of simple battery (§ 242). Appellant had previously sustained three strike prior convictions—one for robbery (§ 211) committed in 2007 and two for criminal threats (§ 422) committed in 2020.

2 As to the first strike, along with two fellow gang members, appellant robbed a bank and a person within it. One of appellant’s codefendants was armed with a firearm. Appellant received five years in prison. The two criminal threats convictions arose out of one incident. Appellant was with his mother, three sisters, and an 11-year-old nephew. Appellant became upset and told his mother, “I’ll fucking kill you all!” After appellant’s mother told him to be quiet, appellant responded, “I’ll kill you, you fucking bitch!” Appellant grabbed a fork and made a stabbing motion toward his nephew while yelling, “I’ll fucking stab you!” Appellant received 32 months in prison. The court denied appellant’s Romero motion. The court underscored appellant’s brazen conduct against a vulnerable victim. The court acknowledged the temporal remoteness of the robbery conviction but noted appellant’s “consistent pattern of criminal activity over the years . . . .” Appellant’s Static-99 score fell into the “well-above-average risk category.” Appellant’s vague plan to “do better” did not inspire confidence in the court. There was “little doubt” in the court’s mind that “but for the intervention of a [G]ood Samaritan . . . [appellant] would have completed the rape of the victim . . . . The concern is that he would seize upon such opportunity again if one were to present itself which is why I do believe a lengthy prison sentence is warranted, namely, to protect society.” The court sentenced appellant to a total of 25 years to life. DISCUSSION Courts deciding Romero motions “‘must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or 3 in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).) We review Romero motion denials for abuse of discretion. (Id. at p. 376.) Such abuse of discretion occurs in limited circumstances— for example, “where the trial court is not aware of its discretion; where [it] considers impermissible factors; or where applying the Three Strikes law would produce an arbitrary, capricious, or patently absurd result under the specific facts of a particular case.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029.) “The [trial] court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).) The trial court did not abuse its discretion. Appellant forced himself upon a highly intoxicated A.G. in broad daylight. He penetrated A.G.’s vagina with his fingers and refused to get off her although she repeatedly asked him to do so. Even when a third party intervened by yelling at appellant, he did not immediately stop. Appellant’s lengthy criminal history was not limited to the strike offenses of robbery and criminal threats. It also included drug offenses, disrupting a school, and failure to register as a sex offender. Appellant was 49 years old at the time of sentencing and lacked a concrete plan for reforming his criminal behavior. He does not present the “extraordinary case” in which failure to strike is an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.) Relying on People v. Avila (2020) 57 Cal.App.5th 1134 (Avila), appellant argues the trial court improperly gave significant weight to a crime that did not occur. In Avila, the defendant was convicted of attempted robbery and attempted extortion after he tried to extract money from individuals selling 4 oranges at or near a freeway offramp. (Id. at p. 1139.) He then squashed bags of oranges. The Court of Appeal faulted the trial court for speculating that “had someone not called the police, ‘who knows what would have happened.’” (Id. at p. 1142.) The trial court thereby implied physical harm that “never appeared in the evidence at trial.” (Ibid.) Here, by contrast, appellant physically forced himself upon a vulnerable victim and inserted his fingers into her vagina. By his own admission, appellant’s goal was “maybe to have sex.” Appellant tried to “hump” A.G. and remove her pants. Given the evidence, the trial court’s conclusion regarding the likelihood of a completed rape but for third-party intervention is unlike the unsupported flight of “imagination” from squashing oranges to physical harm. (Avila, supra, 57 Cal.App.5th at p. 1142.) Although appellant argues the court’s conclusion conflicts with the jury’s verdicts, those verdicts did not bind the court in its assessment of the evidence at sentencing. (Cf. In re Coley (2012) 55 Cal.4th 524, 557.) Appellant argues the court failed to meaningfully consider or properly weigh his mental health and substance abuse as mitigating factors, the remoteness and nature of his robbery prior strike, and his prospects for rehabilitation. We presume the trial court considered all relevant factors when, as here, an affirmative record to the contrary is absent. (Myers, supra, 69 Cal.App.4th at p. 310.) Moreover, except for substance abuse as mitigation, the court addressed the foregoing factors in its Romero ruling. Appellant’s arguments reweighing factors before the trial court do not show that its decision was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Appellant contends the trial court dismissed his mental health “outright due to lack of formal proof . . . .” We disagree.

5 The court simply noted the limited information and the absence of a “nexus between any mental health condition [and] the commission of the underlying offense.” Appellant has not shown the court’s analysis was improper. Finally, appellant contends that because his “two section 422 strike convictions arose from the same act, the trial court was required to dismiss one of them under Romero.” We disagree. Two prior convictions arising out of a single act “may not be treated as two strikes for purposes of Three Strikes sentencing” even when two victims are harmed. (People v. Shaw (2025) 18 Cal.5th 1089, 1093.) Here, however, appellant committed separate acts. He both (1) told his mother, “I’ll kill you, you fucking bitch!” and (2) made a stabbing motion with a fork toward his nephew while yelling, “I’ll fucking stab you!” That these acts occurred during the same course of conduct did not prevent the trial court from treating each resulting conviction as a separate strike. (See People v. Vargas (2014) 59 Cal.4th 635, 638.) DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED.

CODY, P. J.

We concur:

YEGAN, J. BALTODANO, J.

6 Catherine M. Voelker, Judge Superior Court County of Ventura ______________________________ Layana White, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Idan Ivri, Supervising Deputy Attorney General, and Margaret K. Lee, Deputy Attorney General, for Plaintiff and Respondent.