People v. Dunn CA1/5

Filed 5/2/14 P. v. Dunn CA1/5 Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. (San Francisco City and County CALVIN COOLIDGE DUNN, 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 Delancey Street drug recovery program. On Dunn’s fourth admitted violation of probation, the court imposed a five-year prison sentence. The

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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appeal 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 initially submitted a Wende4 brief. In our independent review of the record (People v. Kelly (2006) 40 Cal.4th 106, 109–110) we found sentencing error, but not in Dunn’s favor. On March 11, 2014, we issued an opinion finding that the trial court had imposed an unauthorized sentence and remanding the matter with directions to the trial court to resentence Dunn consistent with the terms of a previously imposed suspended sentence, thereby increasing Dunn’s prison term by two years. Dunn petitioned for rehearing, and we requested briefing from both Dunn and the Attorney General. On April 9, 2014, we granted the petition for rehearing and vacated our earlier opinion. We asked for supplemental briefing on the appropriate disposition, assuming that an unauthorized sentence had been imposed. We again find that the sentence imposed by the trial court was unauthorized and remand for correction. I. BACKGROUND Dunn did not obtain a certificate of probable cause (§ 1237.5) and there are no cognizable issues before us relating to his guilt. (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 Delancey 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