People v. Gumm CA3

Filed 3/7/16 P. v. Gumm CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta) ----

THE PEOPLE,

Plaintiff and Respondent, C079015

v. (Super. Ct. Nos. 07F2172, 14F5267) DAVID RAY GUMM,

Defendant and Appellant.

Appointed counsel for defendant David Ray Gumm asked this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Our review of the record reveals that the remaining charges in case No. 07F2172 were not dismissed as provided in a plea agreement. We will modify the judgment to conform to the plea agreement and affirm the judgment as modified. I On March 22, 2007, the People charged defendant in Shasta County Superior Court case No. 07F2172 with two felonies, a misdemeanor, and two infractions all related

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to a single incident in which defendant engaged in driving under the influence of alcohol (hereafter the DUI case). In June 2013, defendant pleaded guilty to driving with a blood- alcohol level of 0.08 percent or more with prior convictions of related offenses. (Veh. Code, §§ 23152, subd. (b), 23550.) In exchange for defendant’s plea, the People agreed that they would move to dismiss the remaining charges in that matter, along with the charges pending in Shasta County Superior Court case No. 13F3273. At sentencing, the trial court suspended imposition of sentence, placed defendant on formal probation for three years, ordered defendant to pay various fines and fees (suspending a $400 probation revocation fine under Penal Code section 1202.44),1 and dismissed case No. 13F3273. The remaining charges in case No. 07F2172 were not dismissed. Months later, Patrick Wilcox went to defendant’s trailer to give him a ride to the bank so defendant could pay his rent. Defendant appeared to have just woken up. Wilcox told him to get ready and sat down to watch television while waiting for defendant. While Wilcox waited, defendant came out of his bedroom and sat down. Wilcox said, “Dave we need to get ready to go,” and defendant went back into his bedroom. Three or four seconds later, defendant came out of his bedroom and hit Wilcox on the top of the head with a hammer. At trial, Wilcox testified that defendant may have been angry with him because Wilcox and defendant’s landlord had arranged for Wilcox to drive defendant to the bank to get the rent money. Wilcox grabbed the hammer and defendant tried to punch him. Wilcox pushed defendant to the ground, went to his own trailer and called 911. Wilcox’s head wound was later closed with seven staples. Defendant was arrested and charged in Shasta County Superior Court case No. 14F5267 with assault with a deadly weapon, a serious felony. (§§ 245, subd. (a)(1), 1192.7, subd. (c)(23), (31).) The People further alleged defendant was previously