People v. Dunsmore CA4/1

Filed 10/18/22 P. v. Dunsmore CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, D080407

Plaintiff and Respondent,

v. (Super. Ct. No. SCS215653)

DARRYL LEE DUNSMORE,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County, Lisa R. Rodriguez, Judge. Affirmed. Darryl Dunsmore, in pro. per.; and Dawn S. Mortazavi, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. A jury convicted Darryl Lee Dunsmore in March 2010 of attempted voluntary manslaughter while personally inflicting great bodily injury (Penal

Code,1 §§ 192, subd. (a), 664, 12022.7, subd. (a)), assault with a deadly

1 Further statutory references are to the Penal Code unless otherwise specified.

weapon while personally inflicting great bodily injury (§§ 245, subd. (a)(1), 12022.7, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The court found true allegations that Dunsmore had a prior prison sentence (§ 667.5, subd. (b)), a serious felony prior (§ 667, subd. (a)(1)), and a strike prior (§§ 667, subds. (b)–(i), 1170.12, 668). The court sentenced him to a total term of 22 years in prison. On his direct appeal, we affirmed the conviction in an unpublished opinion. However, we reversed the portion of the judgment related to fines, fees, surcharges, and penalty assessments and remanded with directions. (People v. Dunsmore (Dec. 22, 2011, D057645).) In an appeal from the order on remand, we reversed and remanded again with directions for the trial court to correct certain sentencing errors, modify certain fines and assessments, and to exercise its discretion about whether to strike the five- year enhancement for Dunsmore’s prior serious felony conviction under section 667. We also noted the trial court imposed, but stayed, an enhancement of one year for the prior prison term conviction (§ 667.5, subd. (b)) when it should have been stricken. (People v. Dunsmore (Oct. 8, 2019, D074656 [unpub. opn.]) citing People v. Jones (1993) 5 Cal.4th 1142, 1153.) On remand, in July 2020, the trial court struck the prior prison enhancement (§ 667.5, subd. (b)), resentenced Dunsmore to a total term of 21 years, and imposed fines and fees as directed by our prior opinion. The court considered but declined to strike the serious felony prior concluding the interest of justice would not be served. In a subsequent appeal, we determined the court erred in recalculating Dunsmore’s actual custody credits and we modified the judgment. We affirmed in all other respects. (People v. Dunsmore (Jul. 23, 2021, D077762 [unpub. opn.]).)