People v. Dunn CA4/1

Filed 9/10/21 P. v. Dunn CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D078793

Plaintiff and Respondent,

v. (Super. Ct. No. SCD264080)

EMANUEL DUNN JR.,

Defendant and Appellant.

APPEAL from an order of the Superior Court of San Diego County, Robert F. O’Neill, Judge. Affirmed. Emanuel Dunn, Jr., in pro. per.; and Nancy Olsen, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. In June 2016, a jury convicted Emanuel Dunn, Jr. of second degree

murder. (Pen. Code,1 § 187.) The court found true a strike prior (§ 667, subds. (b)-(i)) and a serious felony prior conviction (§ 667, subd. (a)(1)).

1 All further statutory references are to the Penal Code.

Dunn was sentenced to an indeterminate term of 35 years to life in prison. Dunn appealed and this court affirmed the judgment in People v. Dunn

(Oct. 16, 2017, D070810) [nonpub. opn.].2 In June 2020, Dunn filed a pro. per. petition for resentencing under section 1170.95. The court appointed counsel, received briefing, reviewed the record of conviction and denied the petition by written order. In its order, the court found Dunn was not convicted on a felony murder theory and the jury was not instructed on liability based on the doctrine of natural and probable consequences. The court found the record of conviction established Dunn was convicted as a direct aider and abettor who was a major participant in the killing. Thus, the court found Dunn was not eligible for resentencing under section 1170.95. Dunn filed a timely notice of appeal. Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) indicating counsel has not been able to identify any arguable issues for reversal on appeal. Counsel asks the court to review the record for error as mandated by Wende. We offered Dunn the opportunity to file his own brief on appeal. After several delays, Dunn filed a supplemental brief. We will discuss his submission later in this opinion. STATEMENT OF FACTS The facts of the underlying offense are set forth in our prior opinion. We will not repeat them here. (People v. Dunn, supra, D070810.)