People v. Dunsmore CA4/1

California Court of Appeal · D079851 · 2022-06-30 · Unpublished

Proceeding: appeal from an order
Trial court: Superior Court of San Diego County · No. SCS215653
Trial judge: Garry G. Haehnle
Outcome: affirmed — Affirmed.
Area: criminal
Panel: Richard D. Huffman, Sr. (author), Judith D. McConnell, Buchanan

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T04:48Z · confidence low

The trial court denied Dunsmore's petition for resentencing under Penal Code section 1170.95, finding that his conviction for attempted voluntary manslaughter was not an offense covered by the statute as amended by Senate Bill No. 775. The Court of Appeal affirmed the order, conducting a Wende/Anders review of the record and finding no arguable issues for reversal.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 “The trial court denied the petition, finding attempted voluntary manslaughter was not an offense covered by section 1170.95, as amended by Senate Bill No. 775.”	unclear	not reached	unsure The appellate court did not independently analyze the merits of the trial court's legal conclusion regarding the scope of section 1170.95. Instead, it relied on a Wende/Anders review, stating that counsel identified no arguable issues and the court's own review of the record revealed no arguable issues for reversal. The court affirmed the order without addressing the specific legal argument that attempted voluntary manslaughter falls outside the statute's coverage.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to file a brief identifying arguable issues or, if none exist, to request the court to review the record for error.
relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to assist the court in identifying potential issues for reversal when filing a no-merit brief.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its adherence to Wende and Anders requirements, as it explicitly states that counsel filed a brief and the court reviewed the entire record. However, it is substantively thin because it fails to address the specific legal question of whether attempted voluntary manslaughter is excluded from section 1170.95, relying instead on the absence of 'arguable issues' without legal analysis.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:30Z · confidence low

The San Diego Superior Court denied Darryl Dunsmore's 2021 petition for resentencing under Penal Code section 1170.95, finding that his conviction for attempted voluntary manslaughter was not an offense covered by the statute even as amended by Senate Bill No. 775. On appeal, appointed counsel filed a Wende brief, Dunsmore filed a supplemental letter brief, and the Court of Appeal, after independently reviewing the record and noting Dunsmore was the sole perpetrator, found no arguable issues and affirmed.

Ruling reviewed	Standard	The court	The model
Denial of petition for resentencing under Penal Code section 1170.95 on the ground that attempted voluntary manslaughter is not a covered offense under Senate Bill No. 775 “The trial court denied the petition, finding attempted voluntary manslaughter was not an offense covered by section 1170.95, as amended by Senate Bill No. 775.”	unclear	correct	agree with court Senate Bill No. 775 extended section 1170.95 relief to persons convicted of attempted murder or manslaughter under a natural and probable consequences or imputed-malice theory; it does not expressly list attempted voluntary manslaughter. More importantly, the opinion states the record shows Dunsmore was the sole perpetrator, so he could not have been convicted under felony murder, natural and probable consequences, or any theory imputing malice to him based on another's conduct, which makes him ineligible as a matter of law regardless of how the attempted-manslaughter question is resolved. The result is therefore defensible, though the court did not explain the statutory analysis.
Failure to appoint counsel on the section 1170.95 petition before denying it (issue identified by appellate counsel under Anders) “Whether the trial court prejudicially erred in failing to appoint counsel.”	unclear	not reached	agree with court The Court of Appeal listed this as a potential Anders issue but did not analyze it, simply concluding no arguable issues exist. Under People v. Lewis (2021) 11 Cal.5th 952, a trial court must appoint counsel upon a facially sufficient petition, but the error is reviewed for prejudice under People v. Watson and is harmless where the petitioner is ineligible for relief as a matter of law. Because the record shows Dunsmore was the sole actual perpetrator, any failure to appoint counsel would be harmless, so the outcome is correct even though the court should have said so expressly.

Authorities

relied: People v. Wende (1979) 25 Cal.3d 436 — When appointed appellate counsel finds no arguable issues, the Court of Appeal must independently review the entire record for arguable error.
relied: Anders v. California (1967) 386 U.S. 738 — Appointed counsel who finds an appeal wholly frivolous must so advise the court and identify anything in the record that might arguably support the appeal.
missed: People v. Lewis (2021) 11 Cal.5th 952 — A trial court must appoint counsel upon the filing of a facially sufficient section 1170.95 petition, but failure to do so is reviewed for prejudice under Watson and is harmless where the petitioner is ineligible for relief as a matter of law; the court should have addressed this given counsel flagged the appointment-of-counsel issue.

The appellate opinion: sound with gaps — The affirmance is defensible because the opinion notes Dunsmore was the sole perpetrator, which forecloses section 1170.95 relief under any theory, and the court performed the independent Wende review it described. However, the opinion neither cites People v. Lewis on the appointment-of-counsel issue counsel expressly raised nor explains why attempted voluntary manslaughter falls outside the statute as amended by Senate Bill No. 775, leaving the analytical gaps unfilled.

How this analysis was made · dispute it

record incomplete

Opinion

Filed 6/30/22 P. v. Dunsmore 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, D079851

Plaintiff and Respondent, v. (Super. Ct. No. SCS215653)

DARRYL DUNSMORE,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Garry G. Haehnle, Judge. Affirmed. Darryl Dunsmore, in pro. per.; and Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In 2010, Darry Dunsmore was convicted of attempted voluntary manslaughter while personally inflicting great bodily injury (Pen. Code,1 §§ 192, subd. (a), 664, and 12022.7, subd. (a)), assault with a deadly weapon while inflicting great bodily injury (§§ 245, subd. (a)(1) and 12022.7, 1 All further statutory references are to the Penal Code. subd. (a)), and a second count of assault with a deadly weapon (§ 245, subd. (a)(1)). The court found true a serious felony prior conviction (§ 667, subd. (a)(1)), a prison prior (§ 667.5, subd. (b)), and a strike prior (§ 667, subds. (b)-(i)). Dunsmore was ultimately sentenced to a determinate term of 21 years in prison. Dunsmore appealed and this court affirmed the conviction in an unpublished opinion. (People v. Dunsmore (Dec. 21, 2011, D057645).) In 2021, Dunsmore filed a petition for resentencing under section 1170.95. The trial court denied the petition, finding attempted voluntary manslaughter was not an offense covered by section 1170.95, as amended by Senate Bill No. 775. Dunsmore filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Dunsmore the opportunity to file his own brief on appeal and he has responded with a supplemental letter brief. We will discuss his submission below. STATEMENT OF FACTS The facts of the offenses are set forth in our previous opinion, (People v. Dunsmore, supra, D057645). We will not repeat them here, except to note the record shows Dunsmore was the sole perpetrator of the criminal acts. DISCUSSION As we have noted, appellate counsel has filed a Wende brief and asks the court to review the record for error. To assist the court in its review, and in compliance with Anders v. California (1967) 386 U.S. 738 (Anders), counsel 2 has identified the following possible issues which were considered in evaluating the potential merits of this appeal: 1. Whether the trial court prejudicially erred in failing to appoint counsel. 2. Whether the trial court erred in denying appellant’s petition for resentencing. In his brief, Dunsmore lists a wide range of complaints. He contends appellate counsel in this appeal and the prior appeal were ineffective for not providing a better record. He complains about his original conviction and the calculation of custody credits, fees, and fines. He baldly asserts the trial court was mistaken and his offense comes within the resentencing statute as amended by Senate Bill No. 775. In short, Dunsmore’s myriad contentions do not identify arguable issues for reversal on appeal based on the record before us. We have reviewed the entire record as required by Wende and Anders. We have not discovered any arguable issues for reversal on appeal. Competent counsel has represented Dunsmore on this appeal.

3 DISPOSITION The order denying Dunsmore’s petition for resentencing under section 1170.95 is affirmed.

HUFFMAN, J.

WE CONCUR:

McCONNELL, P. J.

BUCHANAN, J.

Cites, in this corpus

People v. Wende Crim. 20851 · 1979-10-12