People v. Burch CA4/3

California Court of Appeal Oct 31, 2024 No. G062713Unpublished

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Holding. The court held that the defendant forfeited his claim regarding the dismissal of sentencing enhancements under Penal Code section 1385 by failing to raise it in the trial court, and that he failed to establish ineffective assistance of counsel due to a lack of prejudice.

Issues

Whether the defendant forfeited his claim under Penal Code section 1385 by failing to raise it at the trial court level.
Whether the defendant's trial counsel provided ineffective assistance by failing to request the dismissal of sentencing enhancements under section 1385.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“any failure on the part of a defendant to invite the court to dismiss under section 1385 . . . waives or forfeits his right to raise the issue on appeal.”

“the record before us demonstrates Burch was not prejudiced by his counsel’s failure to request that the trial court dismiss at least one enhancement under section 1385.”

Filed 10/31/24 P. v. Burch CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G062713

v. (Super. Ct. No. 15CF1159)

RC DWAIN BURCH III, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa

Mandel and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent. * * * Defendant RC Dwain Burch III argues on appeal that the trial court abused its discretion in not dismissing one or more sentencing enhancements under Penal Code section 1385, subdivision (c)(2).1 We find no error and affirm. FACTS In 2015, Burch stabbed his ex-wife multiple times in front of the couple’s four children. He was convicted of attempted murder, aggravated mayhem, domestic battery with corporal injury, three felony counts of child endangerment, and one misdemeanor count of child abuse. The jury found true that, during the commission of the attempted murder, aggravated mayhem, and domestic battery, Burch personally (1) inflicted great bodily injury (GBI enhancement) and (2) used a deadly weapon (personal use enhancement). The trial court subsequently found true that Burch had two strike priors and a serious felony prior. The court struck one of the strike priors and sentenced Burch to 13 years, plus 24 years to life, in prison. Burch appealed, and in an unpublished opinion, this court reversed the judgment as to the strike prior and serious prior convictions, vacated Burch’s sentence, and remanded the matter for retrial of the prior conviction allegations and resentencing. (People v. Burch (Aug. 4, 2020, G057270) [nonpub. opn.].) On remand, the trial court resentenced Burch to 12 years, plus 12 years to life in prison.

People v. Burch CA4/3

AI Brief

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

RC DWAIN BURCH III, OPINION

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