People v. Dunn CA1/5

Filed 3/11/14 P. v. Dunn CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A139390 v. CALVIN COOLIDGE DUNN, (San Francisco City and County Super. Ct. No. 216108) Defendant and Appellant.

On July 29, 2011, pursuant to a negotiated disposition, appellant Calvin Coolidge Dunn entered a plea of guilty to assault upon a police officer with force likely to cause great bodily injury (Pen. Code, § 245, subd. (c)),1 and unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a)). He also admitted two additional felony convictions for which he served a state prison term pursuant to section 667.5, subdivision (b).2 Additional charges and sentence enhancement allegations, including three “strike” priors under sections 667 and 1170.12, were dismissed. On August 19, 2011, Dunn was sentenced to three years formal probation, with execution of a seven- year state prison term suspended, and credit for a one-year county jail term if he completed a two-year Delancy Street drug recovery program. On Dunn’s fourth admitted violation of probation, the court imposed a five-year prison sentence. The appeal

1 All further statutory references are to the Penal Code unless otherwise indicated. 2 The court first allowed Dunn to withdraw and set aside an earlier July 26, 2011 plea agreement that included admission of the “strike” sentencing enhancements.

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purports to be from “issues occurring after entry of the plea” pursuant to California Rules of Court, rule 8.304(b)(4)(A).3 Assigned counsel has submitted a Wende4 brief, certifying that counsel has been unable to identify any issues for appellate review. Counsel has also submitted a declaration confirming that Dunn has been advised of his right to personally file a supplemental brief raising any points which he wishes to call to the court’s attention. No supplemental brief has been submitted. As required, we have independently reviewed the record. (People v. Kelly (2006) 40 Cal.4th 106, 109–110.) We find sentencing error, but not to Dunn’s benefit. We remand for correction. BACKGROUND Since Dunn did not obtain a certificate of probable cause (§ 1237.5), there are no cognizable issues relating to his guilt, or to his plea. (People v. Mendez (1999) 19 Cal.4th 1084, 1097, 1099.) The facts underlying Dunn’s convictions are therefore not relevant. Following his initial sentencing, Dunn was denied entrance to Delancy Street and failed to contact his probation officer. On December 16, 2011, he admitted a charged probation violation. Probation was reinstated and modified to include one year in county jail to be served through the Salvation Army Recovery Program. On January 14, 2012, Dunn was arrested for possession and being under the influence of a controlled substance (Health & Saf. Code, §§ 11375, subd. (b)(2), 11550, subd. (a)). He had not been admitted to the Salvation Army’s residential program because he twice refused to submit urine samples for analysis. On February 24, 2012, Dunn again admitted violating the terms of his probation. Probation was reinstated and modified, requiring that he serve a term of 12 months in county jail. Dunn was ordered to participate in the Roads to