People v. Dungan CA1/4

Filed 11/23/15 P. v. Dungan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

THE PEOPLE, Plaintiff and Respondent, A143759 v. ZACHARIAH LEVI DUNGAN, (Del Norte County Super. Ct. No. CRF1490292) Defendant and Appellant.

Appellant Zachariah Levi Dungan appeals from the18-year state prison sentence imposed following his plea of guilty to certain charges and enhancements alleged against him. Appellant’s counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende). Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court’s attention. No supplemental brief has been filed by appellant personally. We note that appellant has not obtained a certificate of probable cause, which is required by Penal Code1 section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the notice of appeal states, as appellant’s does here, that the appeal is based upon the 1 All further statutory references are to the Penal Code, unless otherwise indicated.

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sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, we have reviewed the whole record pursuant to Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, focusing upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there is no arguable issue on appeal. PROCEDURAL AND MATERIAL FACTUAL BACKGROUND OF CASE A three-count information was filed by the Del Norte County District Attorney’s Office on July 2, 2014, charging appellant with one count of residential burglary (§§ 459/460, subd. (a)), one count of possession of a controlled substance (Health & Saf. Code, § 11377), and one count of resisting a peace officer (§ 148, subd. (a)(1)). The information also alleged that count one was a serious and violent felony within the meaning of sections 1192.7, subdivision (c), and 667.5, subdivision (c), that appellant had suffered a prior conviction for a serious felony in 2001, and that appellant had served three prior prison sentences without remaining free from felony convictions for five years within the meaning of section 667.5, subdivision (b). A codefendant, Donald Kevin Webb, Jr., was also charged in the same information with burglary and resisting arrest, and prior prison sentencing enhancements were also alleged against Webb. Appellant initially entered a plea of not guilty at his arraignment, although it was anticipated that a “global” resolution of the case was likely. Jury trial was set for September 8, 2014. The case was subsequently taken off calendar, and trial reset for October 27, 2014. Appellant had previously waived his speedy trial rights. On October 23, 2014, appellant filed a request to change his plea. A hearing was held on that request at which time appellant pled guilty to the residential burglary and possession of a controlled substance charges. The resisting arrest count was dismissed in the interests of justice. The court found a factual basis existed for the plea, and that appellant knowingly and voluntarily acknowledged and waived his constitutional rights by entering the guilty plea. Appellant was advised that by pleading guilty he faced a maximum sentence of 21 years 4 months in state prison, and that he would not be eligible for probation. Appellant also agreed to a court trial as to the sentencing enhancements