People v. Dunlap CA5

Filed 6/3/21 P. v. Dunlap CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F078528 Plaintiff and Respondent, (Super. Ct. No. CRF55433) v.

WAYNE MARTIN DUNLAP, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Tuolumne County. James A. Boscoe, Judge. Karriem Baker, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry Joseph Colombo, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Poochigian, J. and Detjen, J.

INTRODUCTION In January 2018, defendant Wayne Martin Dunlap was arrested in Tuolumne County after he assaulted his pregnant girlfriend while she was driving with defendant and her young daughter in the car.1 He was charged with felony child abuse (Pen. Code, § 273a, subd. (a); count I),2 felony assault by means likely to produce great bodily injury (§ 245, subd. (a)(4); count II), corporal injury to a cohabitant (§ 273.5, subd. (a); count III), and misdemeanor failure to obey a court order (§ 166, subd. (a)(4); count IV). The charging document also alleged two prior serious felony convictions for burglary, within the meaning of the “Three Strikes” law. (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d).) Defendant was convicted by jury of all four counts, and he admitted two prior strike convictions for first degree burglary. The trial court dismissed one of the strike convictions and sentenced defendant to an aggregate term of 10 years in state prison as follows: the middle term of four years on count I, doubled to eight years based on the prior strike conviction; a consecutive one-year term on count II pursuant to section 1170.1, subdivision (a), doubled to two years; the full middle term of three years on count III, doubled to six years and stayed under section 654; and a concurrent term of 180 days on count IV. Relevant to the issue raised on appeal, the court also imposed, without objection, a restitution fine of $4,200 under section 1202.4, subdivision (b)(1), and a parole revocation restitution fine of $4,200 under section 1202.45, subdivision (a), suspended. Relying on the Court of Appeal’s decision in People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), which was issued postsentencing, defendant claims