People v. Dunsmore CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS215653
- Trial judge
- Lisa R. Rodriguez
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- O'Rourke (author), Richard D. Huffman, Sr., Judith L. Haller
Analysis
The trial court summarily denied Dunsmore's motion for resentencing under Senate Bill No. 483, determining he was ineligible because his sentence was not enhanced by an eligible prior prison term or prior drug conviction. The Court of Appeal affirmed the denial, finding no arguable issues for reversal after a Wende/Anders review of the record.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Denial of motion for resentencing under Senate Bill No. 483“defendant does not qualify for relief under [Senate Bill No.] 483, as his sentence . . . [was] not enhanced by an eligible prison prior pursuant to . . . [section] 667.5[, subdivision ](b) or an eligible prior drug conviction pursuant to Health & Safety Code [section] 11370.2” | unclear | correct | agree with court agree with court |
Authorities
- relied: People v. Wende (1979) 25 Cal.3d 436 — Requires appointed appellate counsel to review the record for arguable issues when no issues are identified.
- relied: Anders v. California (1967) 386 U.S. 738 — Requires counsel to file a brief identifying arguable issues or explaining why none exist, and the court to review the record.
- relied: People v. Jones (1993) 5 Cal.4th 1142 — Cited in prior appeal regarding the error of imposing and staying an enhancement that should have been stricken.
The appellate opinion: sound — The opinion is procedurally sound as it correctly applies the Wende/Anders framework to review the record for arguable issues. It accurately reflects that the trial court's denial was based on statutory ineligibility under SB 483, which Dunsmore failed to effectively challenge in his supplemental letter.
How this analysis was made · dispute it
unusual dispositionThe trial court summarily denied Dunsmore's March 2022 motion for resentencing under Senate Bill No. 483 (former section 1171.1, now section 1172.75), finding his sentence was not enhanced by an eligible section 667.5, subdivision (b) prison prior because that enhancement had already been stricken at the July 2020 resentencing. On appeal, appointed counsel filed a Wende brief, the Court of Appeal independently reviewed the record, found Dunsmore's supplemental letter raised no arguable issue, and affirmed the order.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Summary denial of Dunsmore's motion for resentencing under Senate Bill No. 483 / section 1172.75 on the ground that his sentence was not enhanced by an eligible section 667.5(b) prison prior or Health & Safety Code section 11370.2 prior“defendant does not qualify for relief under [Senate Bill No.] 483, as his sentence . . . [was] not enhanced by an eligible prison prior” | unclear | correct | agree with court Section 1172.75 invalidates section 667.5(b) enhancements imposed before January 1, 2020 for non-sexually-violent priors, but the record recited in the opinion shows the trial court struck Dunsmore's prison prior enhancement in July 2020 on remand, so at the time of the 2022 motion no such enhancement remained in his 21-year sentence. The premise of his motion—that he was 'serving enhancement time' under section 667.5(b)—was factually wrong, and the trial court's referral of the matter to the public defender for independent review of eligibility was a prudent additional step. The Court of Appeal's conclusion that no arguable issue exists is supported by the procedural history it recites. |
Trial court's failure to separately address Dunsmore's renewed objection to the five-year serious felony enhancement (section 667(a)(1)) and claimed errors in the fourth amended abstract of judgment“In short, Dunsmore’s contentions do not identify arguable issues for reversal on appeal based on the record before us.” | unclear | correct | agree with court The trial court had already exercised its discretion under Senate Bill No. 1393 in July 2020 and declined to strike the serious felony prior in the interest of justice, and that ruling was affirmed in D077762. A later freestanding motion is not a vehicle to relitigate a final sentencing decision, and Senate Bill No. 483 provides no basis for revisiting a section 667(a) enhancement. The opinion's treatment is thin—it does not expressly explain why the serious felony claim fails—but the result is defensible on the history the opinion recites. |
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 file a brief referring to anything in the record that might arguably support the appeal, to assist the court's independent review.
- relied: People v. Jones (1993) 5 Cal.4th 1142 — A trial court may not impose both a section 667(a) serious felony enhancement and a section 667.5(b) prior prison term enhancement based on the same prior conviction; the lesser enhancement must be stricken, not stayed.
- missed: People v. Flores (2020) 54 Cal.App.5th 266 — Independent Wende review is not constitutionally required in appeals from postconviction orders, though the Court of Appeal retains discretion to conduct such review and to address issues raised in a defendant's supplemental brief.
The appellate opinion: sound with gaps — The court correctly concluded that Dunsmore could not obtain Senate Bill No. 483 relief because the only section 667.5(b) enhancement in his case had already been stricken in 2020, and his supplemental letter simply recycled complaints rejected in prior appeals without addressing the order under review. The opinion skips the threshold question whether Wende/Anders review even applies to an appeal from a postjudgment resentencing order (Serrano/Cole/Flores line) and does not expressly explain why the renewed serious felony enhancement claim fails, but neither gap affects the outcome.
Opinion
Filed 10/18/22 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, D080407
Plaintiff and Respondent, v. (Super. Ct. No. SCS215653)
DARRYL LEE DUNSMORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, 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. A jury convicted Darryl Lee Dunsmore in March 2010 of attempted voluntary manslaughter while personally inflicting great bodily injury (Penal Code,1 §§ 192, subd. (a), 664, 12022.7, subd. (a)), assault with a deadly 1 Further statutory references are to the Penal Code unless otherwise specified. weapon while personally inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The court found true allegations that Dunsmore had a prior prison sentence (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a strike prior (§§ 667, subds. (b)–(i), 1170.12, 668). The court sentenced him to a total term of 22 years in prison. On his direct appeal, we affirmed the conviction in an unpublished opinion. However, we reversed the portion of the judgment related to fines, fees, surcharges, and penalty assessments and remanded with directions. (People v. Dunsmore (Dec. 22, 2011, D057645).) In an appeal from the order on remand, we reversed and remanded again with directions for the trial court to correct certain sentencing errors, modify certain fines and assessments, and to exercise its discretion about whether to strike the five- year enhancement for Dunsmore’s prior serious felony conviction under section 667. We also noted the trial court imposed, but stayed, an enhancement of one year for the prior prison term conviction (§ 667.5, subd. (b)) when it should have been stricken. (People v. Dunsmore (Oct. 8, 2019, D074656 [unpub. opn.]) citing People v. Jones (1993) 5 Cal.4th 1142, 1153.) On remand, in July 2020, the trial court struck the prior prison enhancement (§ 667.5, subd. (b)), resentenced Dunsmore to a total term of 21 years, and imposed fines and fees as directed by our prior opinion. The court considered but declined to strike the serious felony prior concluding the interest of justice would not be served. In a subsequent appeal, we determined the court erred in recalculating Dunsmore’s actual custody credits and we modified the judgment. We affirmed in all other respects. (People v. Dunsmore (Jul. 23, 2021, D077762 [unpub. opn.]).) In 2021, Dunsmore filed a petition for resentencing under section 1170.95, which the trial court denied after determining that attempted voluntary manslaughter was not an offense covered by section 1170.95, as amended by Senate Bill No. 775. We affirmed the order in an unpublished opinion. (People v. Dunsmore (June 30, 2022, D079851).) In March 2022, Dunsmore filed another motion for resentencing contending he qualifies for resentencing because he “has served his base term and is currently serving enhancement time under [section ] 667.5[, subdivision (b)]” which is legally invalid under amendments to former section 1171.1 (renumbered as section 1172.75) pursuant to Senate Bill No. 483. Although his petition was not clear, he appeared to again object to his prior serious felony enhancement and complained about not being given a hearing and appointed counsel for the sentence recall. The trial court summarily denied the request for resentencing stating, “defendant does not qualify for relief under [Senate Bill No.] 483, as his sentence . . . [was] not enhanced by an eligible prison prior pursuant to . . . [section] 667.5[, subdivision ](b) or an eligible prior drug conviction pursuant to Health & Safety Code [section] 11370.2.” The court directed the clerk of the court to forward Dunsmore’s request and the court’s order to the office of the primary public defender who could refile the motion if, after review of the case, they believed he was eligible for relief. Dunsmore filed a timely notice of appeal. Appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating counsel was unable 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. We will discuss his submission below. STATEMENT OF FACTS The facts of the offenses are set forth in our previous opinion on the merits, (People v. Dunsmore, supra, D057645). We will not repeat them here as they are not relevant to the issues on appeal. DISCUSSION Appellate counsel 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 identified the following possible issues which were considered in evaluating the potential merits of this appeal: 1. Did the trial court improperly deny Dunsmore’s motion for resentencing? 2. Did the trial court prejudicially err in failing to address appellant’s motion for resentencing his prior serious felony enhancement and mistakes in the fourth amended abstract of judgment? Dunsmore’s supplemental letter is identical in nearly every respect to the letter he filed in connection with his appeal in case number D079851, only the case number and dates associated with his signatures have been changed. He again lists a wide range of complaints about his appellate counsel being ineffective for not providing a better record, his original conviction, and the calculation of custody credits, fees, and fines. He states his offense comes within the resentencing statute as amended by Senate Bill No. 775. He does not, however, address the court’s April 1, 2022 order denying his most recent request for resentencing under Senate Bill No. 483. In short, Dunsmore’s 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. DISPOSITION The order denying Dunsmore’s petition for resentencing is affirmed.
O’ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
Cites, in this corpus
- People v. Jones S027672 · 1993-09-13
- People v. Wende Crim. 20851 · 1979-10-12