People v. Dunsmore CA4/1

Filed 7/23/21 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077762
Plaintiff and Respondent,
v. (Super. Ct. No. SCS215653)
DARRYL DUNSMORE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Theodore M. Weathers, Judge. Affirmed as modified.
Robert E. Boyce, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos, Kathryn Kirschbaum and Teresa Torreblanca, Deputy Attorneys
General, for Plaintiff and Respondent.
This is the third1 appeal of defendant Darryl Dunsmore in this case,
following his 2010 conviction for attempted voluntary manslaughter and two
counts of assault with a deadly weapon and by force likely to cause great
bodily injury. In this appeal, defendant contends the court abused its
discretion in denying his motion for substitution of counsel under People v.
Marsden (1970) 2 Cal.3d 118 (Marsden). He also contends, and the People
agree, that the court erred in recalculating his actual custody credits as of the
date of his July 15, 2020 resentencing. As we explain, we agree with the
parties that the court failed to properly calculate defendant’s actual custody
credits. In all other respects, we affirm the judgment.
OVERVIEW2
Facts
“Dunsmore had a long history of harassing his ex-wife. Joseph C., a
friend of Dunsmore, tried to convince Dunsmore to leave his ex-wife alone. In
December 2007, Joseph agreed to meet with Dunsmore to help him recover
property that he had left at his ex-wife’s home. Terry R., Joseph’s friend,
1 Dunsmore currently has a fourth appeal pending in this case. (See
People v. Dunsmore, Dec. 14, 2020, case No. D078348.) We denied
Dunsmore’s request to consolidate the instant appeal with D078348. In the
alternative, Dunsmore requested we take judicial notice of D078348, in which
he lodged medical records that were not considered by the trial court in the
instant case when, as discussed post, it denied his Marsden motion. We now
deny Dunsmore request to take judicial notice of D078348, including the
aforementioned medical records, inasmuch as “[r]eviewing courts generally
do not take judicial notice of evidence not presented to the trial court.” (Vons
Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.)
2 This summary is primarily derived from our decision in People v.
Dunsmore (Oct. 8, 2019, D074656 [nonpub. opn.] (Dunsmore II), following our
remand in People v. Dunsmore (Dec. 22, 2011, D057645) [nonpub. opn.]
(Dunsmore I).
2
drove Joseph over to Dunsmore’s home. Dunsmore was sitting in his full-
sized van, with the motor running, when Terry and Joseph arrived and got
out of their car. Dunsmore turned on the headlights of his van, revved its
engine, and sped straight toward Joseph and Terry. Dunsmore crashed his
van at high speed into Terry’s car, knocking down Terry, mangling his knee
and destroying his car. Dunsmore accelerated and turned the van toward
Joseph, who was standing near a telephone pole. Dunsmore flattened the
telephone pole and chased Joseph through neighbors’ front yards. Dunsmore
knocked Joseph down from behind with his van, after driving the van
through a chain-link fence and over a brick retaining wall. While leaning his
head out of the van’s window, Dunsmore drove the van back and forth over
Joseph’s body several times, breaking several bones and inflicting other
injuries. Joseph had lingering injuries at the time of trial.” (Dunsmore II,
supra, D074656, at p. 3.)
Procedural History
“In 2010, a jury convicted Dunsmore of one count of attempted
voluntary manslaughter as a lesser included offense of murder ([Pen. Code,3]
§§ 192, subd. (a), 664; count 1), and two counts of assault with a deadly
weapon and by force likely to cause great bodily injury (§ 245, subd. (a)(1);
counts 2 and 3). Allegations regarding personal use of a deadly and
dangerous weapon (§ 1192.7, subd. (c)(23)) and personal infliction of great
bodily injury (§ 12022.7, subd. (a)) were also found true, along with true
findings that Dunsmore had a prior prison conviction (§ 667.5, subd. (b)), that
was also a prior serious felony conviction (§ 667, subd. (a)(1)), and a prior
3 All further statutory references are to the Penal Code unless otherwise
indicated.
3
strike conviction (§§ 667, subd[s]. (c) & (e)(1), 1170.12, subd. (c)).” (Dunsmore
II, supra, D074656, at p. 4.)
“The trial court sentenced Dunsmore to a total term of 22 years in
prison. The court imposed the upper term on count 1, attempted voluntary
manslaughter, doubled to 11 years due to the prior strike conviction, plus
three years, consecutive, for personal infliction of great bodily injury, and one
year, consecutive, for use of a weapon [fn. omitted]; on count 2, assault with a
deadly weapon on the same victim, the court imposed the upper term,
doubled, of eight years, plus a consecutive term of three years for personal
infliction of great bodily injury and a term of one year for the weapon
enhancement, all stayed pursuant to section 654; and on count 3, assault
with a deadly weapon on a second victim, the court imposed a consecutive
term of two years, or one-third of the middle term doubled, plus one year for
the weapon enhancement. Punishment on the weapon enhancement was
stayed pursuant to section 1385. The court also imposed one year,
consecutive, for the prison prior (§ 667.5, subd. (b)), stayed pursuant to People
v. Jones (1993) 5 Cal.4th 1142 . . . , and imposed five years, consecutive, for
the prior serious felony conviction (§ 667, subd. (a)). The court reserved
jurisdiction over direct restitution to the victim and imposed the minimum
restitution fine (§ 1202.4, subd. (b)) and suspended parole revocation fine
(§ 1202.45) of $200 each. It refused to impose other mandatory fines, fees,
surcharges, or penalty assessments. The trial judge stated, ‘Let me tell you
my philosophy on fines. They want a zillion and a half dollars in fines. Okay.
If I’m going to send a man to prison, whether, sir, it’s for two years or 22
years, I am not tacking on humongous restitution fines and fees. I don’t
believe in it.’ ” (Dunsmore II, supra, D074656, at pp. 4–5.)
4
“On appeal [in Dunsmore I], we affirmed the conviction of guilt and
remanded for the imposition of mandatory fees. Specifically, we stated: ‘The
portion of the sentence related to fines, fees, surcharges, and penalty
assessments is reversed. The matter is remanded to the trial court with
directions to identify and impose all mandatory fines, fees, surcharges, and
penalty assessments. . . . In all other respects, the judgment is affirmed.’ ”
(Dunsmore II, supra, D074656, at p. 5.)
Remand
“The presiding judge at the time of sentencing retired and a different
judge handled the case on remand. The court imposed a restitution fine in
the amount of $1,000 and an additional suspended parole revocation
restitution fine of $1,000. The court imposed the mandatory criminal
conviction assessment of $90 (Gov. Code, § 70373), a criminal justice
administration fee in the amount of $154 (Gov. Code, § 29550.1), and a court
operations assessment in the amount of $90 (§ 1465.8). [Fn. Omitted.]”
(Dunsmore II, supra, D074656, at pp. 5–6.)
In Dunsmore II, we held the court did not abuse its discretion in
refusing to replace appointed counsel, Craig Leff, before the hearing on
remand, after Dunsmore claimed in the Marsden hearing that he allegedly
had a conflict of interest with his attorneys from the Office of Assigned
Counsel (OAC) because he had sued them.4 (Dunsmore II, supra, D074656,
at p. 2.) Dunsmore also claimed in the Marsden hearing that he had been
denied a fair trial, despite the fact the sole issue on remand was imposition of
mandatory fees.
4 The record shows as new counsel from OAC was appointed to represent
Dunsmore, he would amend his civil lawsuit to add such counsel to create
this alleged “conflict of interest.”
5
We also held in Dunsmore II that the court on remand erred in
increasing the restitution and parole revocation fines from $200, the
minimum fine a court could impose when Dunsmore committed his crime in
2007, to $1,000 (§§ 1202.4 & 1202.45); that the court erred in imposing the
court operations assessment under section 1465.8; that Dunsmore on remand
could raise the ability to pay issue based on what was then the newly decided
case of People v. Dueñas (2019) 30 Cal.App.5th 1157; that although it was a
“close issue . . . due to the violence in this case and Dunsmore’s lengthy
history of violence” (Dunsmore II, supra, D074656, at p. 14), on remand he
also could raise whether the court should exercise its newly found discretion
and strike his prior serious felony conviction in light of Senate Bill No. 1393,
which was effective January 1, 2019 and which amended sections 667,
subdivision (a) and 1385, subdivision (b) (see Stats 2018, ch. 1013, §§ 1–2);
that various other sentencing errors needed correction in the amended
abstract of judgment; and that the stayed, one year prison-term enhancement
under former section 667.5, subdivision (b) should be stricken. (Dunsmore II,
at p. 17.)
Current Appeal
At the July 15, 2020 resentencing, the court held another Marsden
hearing to address Dunsmore’s ex parte request that attorney Leff be
dismissed. Before explaining why he wanted new counsel appointed,
Dunsmore questioned whether the trial judge should even be conducting the
hearing because Dunsmore claimed the judge had only responded to one of
two peremptory challenges Dunsmore had filed and because the same judge
had sentenced him to Patton State Hospital. Dunsmore thus argued the
judge had a conflict of interest. Dunsmore added, “I hear bias and prejudice
preceding the hearing based on hearsay evidence—not even evidence—the
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prosecutor concerning the fact whether or not premeditation occurred in this
case.” The court, however, noted it had denied Dunsmore’s peremptory
challenges on July 6 and continued with the Marsden hearing.
Dunsmore next argued he wanted new counsel appointed because the
court and his current counsel were relying on the representation of the
prosecutor about “[him] being convicted of premeditation” in 2010, which he
claimed was “false.” Dunsmore further argued that his appointed counsel
was unprepared for the July 15 resentencing hearing; that “Mark-Robert
Bluemel” was his newly retained attorney, who, according to Dunsmore, was
allegedly seeking a “forensic examination” of Dunsmore to determine whether
he had a “developmental disability”; that he believed the court was
“psychologically abus[ing]” him as were others that were supposedly
representing his interests; that he had been “continuously” sending “scientific
information” to the court regarding his alleged disability; and that he was
denied due process when he was originally sentenced in 2010.
During the Marsden hearing Dunsmore also informed the court that he
had a “series of declarations” or motions he wanted to file in support of his
request that the court strike the five-year enhancement for the serious felony
prior. Dunsmore noted that his appointed counsel, attorney Leff, should have
been filing these “declarations” or motions on his behalf and that counsel’s
failure to do so showed counsel was not adequately representing his interest.
The record shows the court asked to hear from attorney Leff. Before he
could speak, Dunsmore interrupted and stated, “This last time he [i.e.,
attorney Leff] failed to do what he was ordered to do by the Court . . . . He let
you railroad him as well as me about my rights at that hearing. It is not just
limited to sentencing. I have a right of discovery. I have a Constitutional
right to discovery. I have a Constitutional right to the disability hearing. [¶]
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There’s all kinds of stuff. You’re denying—you’re railroading through. You’re
denying me of my rights again. You’re denying me the right that I had a fair
trial. You’re trying to get this man to do it. There’s a clear conflict of
interest.”
In response to the court’s questioning, attorney Leff stated that he has
been a state and federal criminal defense attorney for 21 years; that he had
completed between 15 and 20 criminal trials in his legal career; that he had
researched the law on newly amended sections 667, subdivision (a) and 1385,
subdivision (b) and was prepared to argue the motion to strike the five-year
enhancement that he had filed and the People had opposed; and that he
previously had filed a motion to continue the resentencing hearing because he
wanted to “achieve [his] clients goals or to take the appropriate steps
necessary to do so,” as it was not out of the question Dunsmore would ask for
a Marsden hearing and appointment of new counsel.
The court next asked Dunsmore if he had anything else to say.
Dunsmore responded, “Yes. He [i.e., attorney Leff] violated the code of ethics
when he failed to declare to me that he was uninsured. I wrote to you about
that and you told me that it was a self-serving statement.”
After hearing more argument from Dunsmore, the court denied his
Marsden motion. The court found that attorney Leff provided effective
assistance of counsel and that there was no basis to relieve OAC. Regarding
Dunsmore’s representation that his new counsel was Mark-Robert Bluemel,
the court noted its records from a March 6, 2020 hearing showed that Mark-
Robert Bluemel appeared for that hearing, as did attorney Leff. At this
hearing, Mark-Robert Bluemel “advised the Court that he was only
appearing for today’s hearing and that he was not retained on this case. [¶]
The Court has—since March 6th, has not received any contact from Mr.
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Mark-Robert Bluemel that he is retained or that he is the counsel of record
on this case. [¶] . . . [¶] The Court has not received any substitution of
[c]ounsel or communication from Mark-Robert Bluemel; therefore, at this
time the Court does find that Mr. Dunsmore has been adequately
represented. The Court finds no basis to relieve [OAC].” Dunsmore in
response stated, “I object and hear fraud.”
After the Marsden hearing, the court next addressed attorney Leff’s
motion to continue the resentencing hearing. The record shows the papers
are date-stamped June 10, 2020, the original hearing was set for June 11,
and ostensibly because of the pandemic, the papers were not filed-stamped by
the court until June 23, 2020. Attorney Leff in his papers argued a “brief
continuance” was necessary because Dunsmore had (1) filed a federal action
under 42 USC § 1983 including against San Diego County and the District
Attorney’s Office; (2) filed a state action against OAC that, as noted,
“included this counsel”; and (3) complained to the State Bar regarding an
alleged discovery violation by the District Attorney’s Office, which
investigation was ongoing.
Attorney Leff in his papers noted a continuance was also warranted
because in early May 2020 he had suffered serious health problems.
Concerned his health situation could get worse if he contracted the
coronavirus, attorney Leff stated he was unable to personally visit with
Dunsmore and instead had to rely on telephonic communication, making
preparation for the original June 11 hearing challenging. In addition,
Dunsmore had indicated to attorney Leff that he wanted to proceed in
propria persona. In his June 10 declaration in support of the continuance,
attorney Leff stated he then was unprepared for the resentencing hearing
that was scheduled for June 11, not only because of the lack of
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communication with Dunsmore, but also because he recently had “received
numerous documents from Mr. Dunsmore regarding his case and [he had] not
had the health time to review and discuss them with [Dunsmore].”
At the July 15 rescheduled hearing, attorney Leff explained that
Dunsmore believed he had been “wrong[ed] by the various authorities in this
matter” and therefore had complained to the State Bar and had filed a
federal action, as noted ante. Attorney Leff thus argued the court should
continue the resentencing hearing until the issues raised by Dunsmore had
been resolved, as it was possible resentencing would be unnecessary if
Dunsmore was successful in any one of his actions.
The court noted that the resentencing issue was a “very narrow” one
mandated by this court’s decision in Dunsmore II. It also noted that there
has been “more than adequate time over the past year” since Dunsmore II
issued in early October 2019 to address the issues raised in that decision; and
that attorney Leff had “filed briefs in support of the request to strike the
serious felony prior.” The court noted “that—to say that Mr. Dunsmore is a
litigious individual is an understatement. He has filed numerous ex parte
applications, all of which have been dealt with by the court. [¶] He has been
up to the Court of Appeal on a number of occasions. He continues to raise
issues related to his trial from 2009 and his sentencing in 2010, all of which
have been dealt with over and over and over again by this Court as well as
the Court of Appeal. [¶] The time for the resentencing is now. The motion to
continue is denied.”
After taking up the fines, fees, and assessments discussed in Dunsmore
II, the court turned to the serious felony prior. Attorney Leff argued the
court should strike the five-year enhancement because Dunsmore had
“several health conditions that would result if he became infected’ with the
10
coronavirus; that although Dunsmore received a long sentence, “it was not a
life sentence”; and thus that the court, in the interest of justice, should
exercise its discretion and dismiss the five-year enhancement.
The prosecutor argued the court should impose the enhancement under
section 667, noting: “[W]hen the defendant was originally sentenced . . . his
history at that time as well as the facts [of this] case for which he was
convicted, both of which are very serious, very violent cases.” The prosecutor
further noted Dunsmore’s serious prior offense involved a criminal threat,
case No. CS179057, in which Dunsmore told a neighbor, “I will fucking burn
down your house with you and your family in it.” When Dunsmore was
questioned about this previous incident, the prosecutor represented that
Dunsmore had said “his neighbor should be afraid of him and, in fact, his
neighbor was.” The prosecutor also noted Dunsmore had threated his
stepfather and while out on bail “for these [section] 422 cases, he committed
further domestic violence against [his ex-wife Rose R.,] who eventually had to
get a restraining order against him which he failed over and over again to
comply with.”
The prosecutor argued it was in this context that Dunsmore committed
the offenses in the instant case, in which he used his car to run over two
individuals, causing life-threating injuries to one of the victims who ended up
having a stroke and was still recovering from his injuries a year later. Even
as the instant case was pending, the prosecutor noted that Dunsmore
continued to harass Rose R., leading to his rearrest. The prosecutor thus
maintained that striking the five-year enhancement would not be in
furtherance of justice.
In reply, attorney Leff argued that Dunsmore was “not the same man”
when he committed the offenses in this case, and reiterated that Dunsmore is
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disabled and has “very significant health issues”; that while in prison,
Dunsmore would not receive the required medical treatment he could receive
if released; that while in prison, there had been no other incidents of violence;
and that in light of the pandemic and these other factors, the court should
exercise its discretion and strike the five-year enhancement.
The court then asked Dunsmore if wanted to address the court.
Dunsmore apologized for his “emotional outbursts,” noted the prosecutor had
misstated the facts about his criminal history including his committing acts
of “violence,” as he claimed that none of his offenses had been charged as a
violent crime; that the court in exercising its discretion should also consider
his disability as a “mitigating factor[],” as this disability caused him to “make
irrational, emotional outbursts” that he has suffered since before the age of
18; that he was “remorseful” for committing the offenses in this case; and
that through mental health services he has received “tools and people that
can help [him] maintain a safe environment for [himself], and those around
[him,] so that these acts that have occurred in the past and anything that
may occur in the future do not reoccur in a manner that is dangerous.”
After hearing additional argument, the court declined to strike the five-
year enhancement. The court read into the record Dunsmore’s original
sentencing report prepared by probation, which noted Dunsmore had a
“lengthy criminal history which covers more than 27 years,” and which
further noted: “[Dunsmore] is a habitual offender. It is clear that the
defendant had several opportunities to stop his negative actions and redirect
his behavior. [¶] In the instant case, the behavior that the defendant
displayed did not appear to be that of a man concerned for his safety. He
could have driven away but chose to remain in the area and commit this
offense. [¶] He blames others for his choices. He is without remorse and
12
despite the physical and emotional harm he has caused, he continued to view
himself as the victim.”
The court stated that it also had reviewed the trial transcripts in
declining to exercise its discretion to strike defendant’s serious felony prior.
After correcting certain sentencing errors identified in Dunsmore II, and
calculating Dunsmore’s custody credits, it sentenced Dunsmore to 21 years in
prison, as noted.
DISCUSSION
I
Marsden
A. Guiding Principles
“The seminal case regarding the appointment of substitute counsel
is Marsden, supra, 2 Cal.3d 118, which gave birth to the term of art, a
‘Marsden motion.’ ” (People v. Smith (1993) 6 Cal.4th 684, 690.) Marsden
held that a defendant has a right to substitute counsel on a proper showing
that the constitutional right to counsel would otherwise be substantially
impaired. (Marsden, supra, at p. 123; see People v. Nakahara (2003) 30
Cal.4th 705, 718.)
“The legal principles governing a Marsden motion are well settled.”
(People v. Lara (2001) 86 Cal.App.4th 139, 150.) When a defendant pursuant
to Marsden seeks substitution of appointed counsel, “ ‘the trial court must
permit the defendant to explain the basis of his contention and to relate
specific instances of inadequate performance. A defendant is entitled to relief
if the record clearly shows that the appointed counsel is not providing
adequate representation or that defendant and counsel have become
embroiled in such an irreconcilable conflict that ineffective representation is
likely to result.’ ” (People v. Taylor (2010) 48 Cal.4th 574, 599 (Taylor).) “A
13
trial court should grant a defendant’s Marsden motion only when the
defendant has made ‘a substantial showing that failure to order substitution
is likely to result in constitutionally inadequate representation.’ ” (People v.
Hines (1997) 15 Cal.4th 997, 1025.) “A defendant does not have the right to
present a defense of his own choosing, but merely the right to an adequate
and competent defense.” (People v. Welch (1999) 20 Cal.4th 701, 728.)
“We review the denial of a Marsden motion for abuse of discretion.”
(Taylor, supra, 48 Cal.4th at p. 599.) “Denial is not an abuse of discretion
‘unless the defendant has shown that a failure to replace counsel would
substantially impair the defendant's right to assistance of counsel.’ ” (Ibid.)
B. Analysis
Dunsmore contends that the trial court abused its discretion in denying
his Marsden motion because attorney Leff allegedly admitted he was
unprepared for the originally scheduled June 11, 2020 resentencing hearing
when he filed his motion for continuance a day earlier. As noted ante, in that
motion attorney Leff asked for a “brief continuance” because he had suffered
severe medical issues in May 2020; had been unable to have face-to-face
communication with Dunsmore because of the pandemic; Dunsmore had
given him several documents that he had yet to review; Dunsmore also had
expressed a willingness to appear in propria persona at resentencing; and
Dunsmore had filed a complaint with the State Bar regarding the District
Attorney’s Office and had filed both a federal and state action, the latter of
which included attorney Leff as a party.
However, the record shows the resentencing hearing did not take place
until July 15, 2020, more than a month after attorney Leff moved for a short
continuance. In connection with the July 15 hearing, attorney Leff had filed
a motion to strike the five-year enhancement, had researched the law, and
14
following the Marsden hearing, had stated he was prepared to argue the
motion. In addition, the record shows attorney Leff did in fact make cogent
arguments in asking the court to strike the five-year enhancement, as noted
ante, including repeatedly pointing out that Dunsmore allegedly had “very
significant” health issues that put him at risk because of the pandemic; that
Dunsmore was a “changed man” and already had served a lengthy sentence
for his offenses; and that striking the five-year enhancement in light of
Dunsmore’s health issues served the interest of justice.
We thus reject Dunsmore’s claim that attorney Leff was unprepared for
the July 15 resentencing hearing. We find on this record substantial
evidence supporting the court’s finding that attorney Leff provided effective
assistance of counsel in connection with the overarching issue at
resentencing: whether to strike the five-year enhancement under newly
amended sections 667 and 1385. We thus conclude Dunsmore had failed to
show, much less “clearly show[]” (see Taylor, supra, 48 Cal.4th at p. 599),
that attorney Leff was not providing adequate representation.
Moreover, the record shows the court in fact exercised its discretion in
declining to strike the enhancement. (See In re Marriage of Gray (2007) 155
Cal.App.4th 504, 515 [recognizing the general rule that a failure to
exercise discretion is “itself an abuse of discretion”].) As noted, the court
relied on the original sentencing report from probation and reread the
original trial transcripts in declining to strike the five-year enhancement.
In addition, this court in Dunsmore II noted it was a “close issue”
whether the court on remand “would exercise its discretion to reduce
Dunsmore’s sentence, due to the violence in this case and Dunsmore’s lengthy
history of violence.” (Dunsmore II, supra, D074656, at p. 6, italics added.)
Out of an abundance of caution, however, we left that issue for the trial court.
15
(People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [noting remand is
appropriate when the trial court does not clearly indicate what it would have
done had it been aware of the full scope of its discretion].)
Finally, even if the court erred in failing to substitute counsel, we
conclude that error was harmless beyond a reasonable doubt. (See People v.
Sanchez (2011) 53 Cal.4th 80, 92 (Sanchez) [noting Marsden error is
only harmless if a reviewing court can “ ‘conclude beyond a reasonable doubt
that th[e] denial of the effective assistance of counsel did not contribute to the
defendant’s conviction’ ”]; accord, People v. Loya (2016) 1 Cal.App.5th 932,
945 [concluding the “standard for prejudice regarding a denied Marsden
motion is under Chapman v. California (1967) 386 U.S. 18.”].)
Indeed, we note Dunsmore on appeal has not even argued the court
erred in denying his motion to strike the five-year enhancement. For this
reason alone we conclude any alleged error in failing to substitute counsel is
harmless beyond a reasonable doubt. (See Sanchez, supra, 53 Cal.4th at p.
92.)
In any event, the record shows both attorney Leff and Dunsmore
himself aggressively argued at the July 15 resentencing that the court should
exercise its newly acquired discretion pursuant to sections 667 and 1385 and
strike his serious felony prior. Although Dunsmore on appeal faults attorney
Leff, as we have noted there is no indication Dunsmore was deprived of
effective assistance of counsel given the record in this case, including—
despite Dunsmore’s vehement and ongoing objections otherwise—the acts of
violence he committed both in his prior serious felony and in the instant
offenses. We thus conclude even assuming the court erred under Marsden in
failing to substitute counsel, it was harmless beyond a reasonable doubt.
(See Sanchez, supra, 53 Cal.4th at p. 92.)
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II
Custody Credits
In resentencing Dunsmore, the court calculated actual and section
2933.1 credits from the date of Dunsmore’s arrest until June 3, 2010, the date
of Dunsmore’s original sentencing, for a total of 921 days credit. Dunsmore
contends the court was required to calculate all actual credits from the time
of arrest until July 15, 2020, the date of resentencing. He therefore argues
he is entitled to an additional 3666 days of actual credits for a total of 4587
custody credits. The People agree.
“When, as here, an appellate remand results in a modification of a
felony sentence during the term of imprisonment, the trial court must
calculate actual time the defendant has already served and credit that time
against the ‘subsequent sentence.’ ” (People v. Buckhalter (2001) 26 Cal.4th
20, 23 (Buckhalter); § 2900.1 [providing that when a sentence is modified
while in progress, the time already served “shall be credited upon any
subsequent sentence [the defendant] may receive upon a new commitment for
the same criminal act or acts”].) Thus, when a trial court on remand modifies
a defendant’s sentence, it is obliged to credit the defendant in its new
abstract of judgment “with all actual days he [or she] had spent in custody,
whether in jail or prison, up to that time.” (Buckhalter, at p. 37.)
We agree with the parties that the abstract of judgment must be
amended to correctly reflect Dunsmore total custody credits of 4587.
(See People v. Mitchell (2001) 26 Cal.4th 181, 185 [stating the general rule
that it is proper and important to correct errors and omissions in abstracts of
judgment].)
17
DISPOSITION
The judgment is modified to award Dunsmore 4587 days of custody
credit. As so modified, the judgment is affirmed. The trial court is directed
to prepare and forward to the Department of Corrections and Rehabilitation
an amended abstract of judgment that has been modified accordingly.
BENKE, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
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