People v. Dunne CA3

Filed 9/13/22 P. v. Dunne CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C095149

Plaintiff and Respondent, (Super. Ct. No. 18FE016921)

v.

ANTHONY CHARLES DUNNE,

Defendant and Appellant.

A jury found defendant Anthony Charles Dunne guilty of attempted premeditated murder after he attacked a massage therapist who rebuffed his romantic advances. The trial court excluded a detective’s lay opinion testimony that defendant was the assailant recorded in surveillance videos. Instead, the court, with defense counsel’s assent, allowed the detective to testify to the jury about common observable physical traits shared by defendant and the suspect. Defendant now contends that the court, in doing so, abused its discretion and denied him due process. The People argue defendant forfeited

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these meritless claims. Agreeing defendant’s claims are forfeited, we affirm the judgment. BACKGROUND Y.Z. gave a man she knew as “Tony” a massage at her massage parlor and he asked her out on a date. She agreed, initially, but two days later told him in a text message she did not want to go out with him. Tony replied by calling her a “prostitute.” Later that day, a man entered the massage parlor and beat and knifed Y.Z., wounding her severely. Y.Z. told police she thought Tony was the attacker and provided a description of him. After reviewing surveillance videos, Detective Nick Sheehan concluded Tony was the attacker, based on common physical characteristics and the car he drove. Sheehan later spotted a similar car and recognized the driver as Tony. A records check led to defendant,1 who was charged with attempted willful, deliberate, and premeditated murder (Pen. Code, §§ 664, 187, subd. (a));2 personally inflicting great bodily injury (§ 12022.7, subd. (a)); personally using a deadly or dangerous weapon, a stabbing instrument (§ 12022, subd. (b)(1)); and having a strike prior and prison prior (§§ 667, subds. (b)-(i), 1170.12) for shooting at an occupied house. (§ 246.) Defense counsel moved in limine to exclude Sheehan’s lay opinion identification of defendant, arguing the officer’s testimony regarding the videos was unhelpful to the jury and unduly prejudicial. (Evid. Code, §§ 352, 800.) The court clarified defense counsel’s stance: