Opinion
A147895
12-23-2016
THE PEOPLE, Plaintiff and Respondent, v. DONALD EARL DUNAKIN, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Mendocino County Super. Ct. No. SCUK-CRCR-14-75756)
Appellant Donald Earl Dunakin, Jr. appeals from his state prison sentence aggregating 81 years to life in the above-referenced criminal case following his negotiated plea of no contest.
Appellant's counsel has filed an opening brief in which no issues are raised, and asks this court for an independent review of the record as required by People v. Wende (1979) 25 Cal.3d 436. Counsel has declared that appellant has been notified that no issues were being raised by counsel on appeal, and that an independent review under Wende instead was being requested. Appellant was also advised of his right personally to file a supplemental brief raising any issues he chooses to bring to this court's attention.
After counsel's Wende brief was filed, we received a handwritten letter from appellant himself dated October 28, 2016, asking that we review the entire record to determine if there are any arguable issues that his counsel "might have missed." He also raised a challenge to the validity of his plea, stating that he was told that he would receive no more than a 30-year sentence if he pleaded. He contends that had he known that he would have received an "80-years to life" sentence, he would have taken the case to trial.
We note that appellant has not obtained a certificate of probable cause, which is required by Penal Code section 1237.5 when a defendant seeks to appeal from a judgment entered following a guilty or no contest plea. A certificate is not required when the notice of appeal states, as appellant's does here, that the appeal is based upon the sentence or other matters occurring after the plea that do not affect the validity of the plea. Accordingly, we have reviewed the whole record pursuant to People v. Wende, supra, 25 Cal.3d 436 and People v. Kelly (2006) 40 Cal.4th 106, focusing primarily upon grounds for appeal arising after entry of the plea. Having done so, we conclude that there are no arguable issues on appeal.
Procedural and Material Factual Background of Case
A "First Amended Information" was filed by the Mendocino County District Attorney on October 23, 2015, charging appellant with 24 counts of sexual offenses against two victims designated in the information as Jane Doe 1 and Jane Doe 2. The crimes allegedly were committed at various times between 1997 and 2005 as against Jane Doe 1, and between 2012 and 2014 against Jane Doe 2. The crimes included multiple counts of aggravated sexual assault of a child (Pen. Code, § 269, subd. (a)(4)), torture (§ 206), continued sexual abuse of a child (§ 288.5, subd. (a)), and sexual acts with a child of 10 years or younger (§ 288.7, subd. (b)). Several of the counts were accompanied by special allegations that appellant was not eligible for probation or suspension of sentence pursuant to section 1203.065, subdivision (a).
All further statutory references are to the Penal Code, unless otherwise indicated. --------
On that same day, a "Plea Form, With Explanations and Waiver of Rights—Felony" was filed (Plea Form). Pursuant to the Plea Form, appellant entered a plea of no contest to six of the charges, including one count of aggravated sexual assault of a child (§ 269, subd. (a)(4)), one count of continuous sexual abuse of a child (§ 288.5, subd. (a)), and four counts of oral copulation of a child under the age of 10 years (§ 288.7, subd. (b)).
It was acknowledged by appellant's initials that as part of the plea agreement, he would be sentenced to no less than 21 years to life in state prison, and to no more than 81 years to life. Under the agreement, appellant would be sentenced to an indeterminate term of 15 years to life in state prison for the aggravated sexual assault count to be served consecutively with a six-year prison term for the continuous sexual abuse of a child count. Appellant specifically understood and agreed that at sentencing the court could impose either a concurrent or consecutive indeterminate prison term of 15 years to life on each of the remaining four counts of oral copulation on a child under age 10. Appellant also agreed to waive all appellate rights relating to the plea up to the date of the plea.
All constitutional rights pertaining to criminal proceedings were waived by initialing and signing the Plea Form. The Plea Form was signed by both appellant and his counsel. Appellant's counsel also signed the Plea Form acknowledging that counsel had discussed with appellant the facts, consequences, and possible defenses to the charges, and that there was a factual basis for the plea.
The plea was taken and entered in open court on that same day. In explaining the negotiated plea terms the prosecutor stated the following:
"He will serve a minimum of 21 years to life in prison. That will be the low end of the agreement. The high end of the agreement will be 81 years to life in prison. And that will be argued at the sentencing hearing. so the range is, the lowest is 21 years to life and the highest is 81 years to life.
"And I notified [defense counsel], but want to make it—I want to make it clear so the defendant understands, that we used to call these sometimes, the term was a wink and a nod. There's no wink and a nod in this case, that I am going to stand silent and have the defendant get 21 years to life. I am going to be asking the Court for the maximum of 81 years to life. The victim is going to be at his sentencing hearing and she' s going to urge the Court for the maximum of 81 years to life. I want, in all fairness to everybody, I want everybody to go in with their eyes open that this isn't one of those deals we are saying, ah, we give the judge a range but we are going to stand silent or not urge the court to give him the max of [81] years to life in [s]tate prison."
In response to questions from the trial judge, appellant confirmed that he initialed and signed the Plea Form. The court explained further the terms of the plea including that the minimum appellant was agreeing to was to serve 21 years to life in state prison. As to the four "open" counts, the court explained as follows: "And at the conclusion of the sentencing because you are going to get, you know, get the six-year mitigated term on one of the counts, the maximum you can receive is 81 years to life. [¶] Do you understand that?" After appellant answered that he did understand, the court asked him again: "You understand that the decision with respect to sentencing is solely up to me?" Appellant again answered yes. The court then concluded with the explanation of the length of sentence by saying: "I am not—I am not agreeing to anything except that 81 years to life is the maximum and 21 years to life is the minimum." Appellant answered again that he understood.
The court then went on to explain the further consequences of the plea, after which the court accepted the plea concluding that it had been entered knowingly, voluntarily and intelligently. Appellant also waived his right to be sentenced within 20 days, and the matter was referred to the probation department for a sentencing report to be prepared. Sentencing was set for January 26, 2016. At a hearing on January 26, sentencing was continued to February 23, 2016.
At the request of appellant's counsel, appellant was examined by clinical psychologist Dr. Paul Good, who authored a 9-page report dated February 21, 2016. The report discussed at length appellant's history and current and past mental health problems, concluding that appellant was "a very disturbed individual indeed." The report concludes as follows: "Overall, [appellant]'s pathetic past matches his pathetic crimes. A person treated as badly as he was, tends to repeat that abuse on others. It is a tragedy all the way around. While he cannot be excused for his crimes, it is important to acknowledge that [appellant] suffered greatly as a child and was unable to cope with life as an adult. It led to marginal functioning and psychotic behavior that ultimately drove his criminal behavior."
A 16-page probation report was also submitted to the court before sentencing. After a thorough review of numerous sentencing factors, including appellant's background and the nature of the crimes, the recommendation of the department was that the terms in aggravation far outweighed the factors in mitigation and, in addition to the 21 years to life sentence already agreed to, appellant should be sentenced to 15 years to life for each of the "open" convictions with the terms to run consecutively; for a total aggregate sentence of 81 years to life.
The sentencing hearing began by the court indicating it had read and considered the aforementioned reports, as well as additional investigative reports that the court explained constituted "about two inches of reports." In addition to hearing from counsel, the prosecution presented victim impact testimony from Jane Doe 1. The court then spoke, noting that appellant's conduct was "the most callous and injurious, meanspirited and depraved that I have—I have seen." The court specifically found no factors in mitigation present, pointing to Dr. Good's report as "informative," but ultimately not mitigating. As a result, the court imposed 15 years to life on each of four "open" counts, running them consecutively to the 21 years to life agreed to as part of the plea deal as to the remaining two counts, for a total aggregate state prison term of 81 years to life.
Conclusions Based Upon Independent Record Review
Upon our independent review of the record we conclude there are no meritorious issues to be argued, or that require further briefing on appeal.
We also discern no error in the plea disposition or in sentencing. The sentence appellant received, and the restitution fines, penalties, and conditions imposed were supported by the law and facts. At all times appellant was represented by counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
RUVOLO, P. J. We concur: /s/_________
REARDON, J. /s/_________
STREETER, J.