People v. Wynn CA3 ( 2023 )

Filed 10/13/23 P. v. Wynn CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Butte)
----
THE PEOPLE, C097512
Plaintiff and Respondent, (Super. Ct. No. CM023687)
v.
DOMINICK JOHN WYNN,
Defendant and Appellant.
Defendant Dominick John Wynn appeals from a postconviction order striking an
invalid one-year prior prison term from his stipulated sentence under Penal Code section
1172.751. Appellate counsel filed a brief raising no arguable issues under People v.
Wende (1979) 25 Cal.3d 436 and asking this court to conduct an independent review of
the record to determine whether there are any arguable issues on appeal. Although not
1 Undesignated statutory references are to the Penal Code. Effective June 30, 2022, the
Legislature renumbered former section 1171.1 to section 1172.75 without substantive
change. (Stats. 2022, ch. 58, § 12.)
1
required to independently review the record in these circumstances (see, e.g., People v.
Delgadillo (2022) 14 Cal.5th 216, 226), we have done so because defendant was not
notified that his failure to file a supplemental brief may result in dismissal of the appeal.
But our discretionary review of the record reveals no arguable errors favorable to
defendant. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, defendant entered the victim’s bedroom with a knife, forced her to orally
copulate him, and then raped her.
In 2006, defendant pled no contest to rape and residential burglary and admitted he
served a prior prison term and was convicted of a serious felony offense, qualifying as a
strike. The trial court sentenced him to a stipulated prison term of 24 years 8 months.
(People v. Wynn (Dec. 12, 2006, C052419) [nonpub. opn.].)
Effective January 1, 2020, Senate Bill No. 136 (2019-2020 Reg. Sess.) (Stats.
2019, ch. 590) amended section 667.5 “by limiting the prior prison term enhancement to
only prior terms for sexually violent offenses.” (People v. Burgess (2022)
86 Cal.App.5th 375, 380.)
Effective January 1, 2022, Senate Bill No. 483 (2021-2022 Reg. Sess.) made the
change fully retroactive (Stats. 2021, ch. 728, § 1) and added former section 1171.1, now
section 1172.75, to the Penal Code. (Stats. 2021, ch. 728, § 3; Stats. 2022, ch. 58, § 12.)
This provision states that “[a]ny sentence enhancement that was imposed prior to
January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except for any
enhancement imposed for a prior conviction for a sexually violent offense . . . is legally
invalid.” (§ 1172.75, subd. (a).) “The statute further establishes a mechanism to provide
affected defendants a remedy for those legally invalid enhancements,” as relevant here,
directing the Secretary of the California Department of Corrections and Rehabilitation “to
‘identify those persons in their custody currently serving a term for a judgment that
includes an enhancement described in subdivision (a) and . . . provide the name of each
2
person, along with the person’s date of birth and the relevant case number or docket
number, to the sentencing court that imposed the enhancement.’ (§ 1172.75, subd. (b).)”
(People v. Burgess, supra, 86 Cal.App.5th at p. 380.) The statute then directs the trial
court to review the judgment, verify that it includes such an enhancement, “and if so,
‘recall the sentence and resentence the defendant.’ (§ 1172.75, subd. (c).)” (Ibid.)
In August 2022, the trial court found that his judgment included an invalid one-
year enhancement, appointed counsel for defendant, and placed the matter on calendar for
resentencing. Defendant’s counsel submitted documents reflecting defendant’s
rehabilitative efforts and achievements during his incarceration. Counsel also filed a
sentencing brief asking the trial court to strike the five-year prior serious felony
enhancement in the interest of justice. The People’s sentencing brief conceded the
dismissal of the one-year prior prison term enhancement but urged that the remainder of
defendant’s stipulated sentence be reimposed.
At the sentencing hearing, the trial court recalled defendant’s sentence and
reimposed the stipulated sentence without the invalid one-year prior prison term
enhancement. With respect to defendant’s request to strike the five-year prior serious
felony enhancement, the trial court stated: “The record does not support striking the
enhancement in the furtherance of justice. [¶] In this case, the defendant was 36 years
old at the time of the offense; he had suffered four prior felony convictions and three
prior misdemeanor convictions; he was on parole at the time he committed this forcible
rape; his prior performance on supervision was unsatisfactory; he agreed to the sentence
of 24 years and 8 months. And I’ve considered all of those, and find that it is not in the
interest of justice to modify the previous agreement.”
DISCUSSION
We have exercised our discretion to independently review the record. (Delgadillo,
supra, 14 Cal.5th at p. 226.) After that review, we now conclude defendant received the
3
relief to which he was entitled under section 1172.75. And we have found no arguable
errors favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/
MESIWALA, J.
We concur:
/s/
MAURO, Acting P. J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
4