People v. Dunn CA4/1 ( 2021 )

Filed 9/10/21 P. v. Dunn 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, D078793
Plaintiff and Respondent,
v. (Super. Ct. No. SCD264080)
EMANUEL DUNN JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County,
Robert F. O’Neill, Judge. Affirmed.
Emanuel Dunn, Jr., in pro. per.; and Nancy Olsen, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
In June 2016, a jury convicted Emanuel Dunn, Jr. of second degree
murder. (Pen. Code,1 § 187.) The court found true a strike prior (§ 667,
subds. (b)-(i)) and a serious felony prior conviction (§ 667, subd. (a)(1)).
1 All further statutory references are to the Penal Code.
Dunn was sentenced to an indeterminate term of 35 years to life in
prison.
Dunn appealed and this court affirmed the judgment in People v. Dunn
(Oct. 16, 2017, D070810) [nonpub. opn.].2
In June 2020, Dunn filed a pro. per. petition for resentencing under
section 1170.95. The court appointed counsel, received briefing, reviewed the
record of conviction and denied the petition by written order.
In its order, the court found Dunn was not convicted on a felony murder
theory and the jury was not instructed on liability based on the doctrine of
natural and probable consequences. The court found the record of conviction
established Dunn was convicted as a direct aider and abettor who was a
major participant in the killing. Thus, the court found Dunn was not eligible
for resentencing under section 1170.95.
Dunn 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 Dunn the opportunity to
file his own brief on appeal. After several delays, Dunn filed a supplemental
brief. We will discuss his submission later in this opinion.
STATEMENT OF FACTS
The facts of the underlying offense are set forth in our prior opinion.
We will not repeat them here. (People v. Dunn, supra, D070810.)
2 We grant Dunn’s request to take judicial notice of our records in case
No. D070810.
2
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
has identified the following possible issues that were considered in evaluating
the potential merits of this appeal.
1. Whether Dunn was found guilty of felony murder or natural and
probable consequences murder, if not, whether section 1170.95 applies.
2. Whether the trial court may rely on the record of conviction to
support its determination that Dunn is not statutorily eligible for section
1170.95 relief because he acted with implied malice and whether any error in
considering the underlying record at the prima facie stage was harmless in
light of the absence of any jury instruction that would have permitted a
murder conviction on a theory invalidated by Senate Bill No. 1437.
In his supplemental brief, Dunn does not raise any issues regarding the
appeal from the denial of his petition for resentencing. Instead, Dunn
complains about his original trial in 2016. He complains about the jury
selection process and about discovery issues. Since the trial court in
reviewing Dunn’s petition considered the record of conviction, Dunn
concludes that reopens the 2016 trial for a second appellate review. He is
wrong. This appeal and the record supporting it concerns the trial court’s
denial of Dunn’s petition, we have already reviewed the original trial and
affirmed the judgment. If Dunn wishes to challenge his 2016 conviction any
further he will have to seek review in the trial court by way of a petition for
habeas corpus. Dunn’s supplemental brief does not raise any arguable issues
for reversal on the present appeal. Dunn’s request to replace appellate
counsel is denied.
3
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 Dunn on this appeal.
DISPOSITION
The order denying Dunn’s petition for resentencing under
section 1170.95 is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
DATO, J.
4