Opinion
D076678
04-13-2020
THE PEOPLE, Plaintiff and Respondent, v. DARRYL LEE DUNSMORE, Defendant and Appellant.
Darryl Dunsmore, in pro. per.; and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN THE JUDGMENT THE COURT:
The petition for rehearing is denied.
It is ordered that the opinion filed on April 13, 2020, be modified as follows:
On page 3, first paragraph, beginning with "(Anders)" the sentence is modified to read:
"(Anders). In this case, there are realistically no appellate issues, whether they be possible or arguable issues. Here, Dunsmore appeals from the denial of his motion to withdraw a 15-year-old guilty plea, which had been final for over a decade before the
motion. There is simply no basis for this appeal and failure to address possible Anders issues has not hindered our review of the record."
THERE IS NO CHANGE IN JUDGMENT.
HUFFMAN, Acting P. J. Copies to: All parties
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. SCS179057, SCS215653) APPEAL from an order of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Darryl Dunsmore, in pro. per.; and John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In 2004, Darryl Lee Dunsmore pleaded guilty to attempted criminal threats (Pen. Code, §§ 422 and 664) in case No. SCS179057. He was advised at the change of plea hearing that the offense was a serious felony. He was sentenced to prison for the low term of 8 months.
All further statutory references are to the Penal Code unless otherwise specified.
In 2010, a jury convicted Dunsmore of attempted voluntary manslaughter (§§ 192, subd. (a) and 664) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) in case No. SCS215653. His 2004 conviction was used as a "strike" in the 2010 sentencing.
In 2019, Dunsmore filed a motion to withdraw his 2004 guilty plea on the basis his sentence in that case was a misdemeanor, and thus, it was unlawfully used as a strike prior in the 2010 sentencing. The trial court denied the motion in a written order. Dunsmore filed a timely notice of appeal and requested a certificate of probable cause (§ 1237.5). The trial court denied the request for a certificate of probable cause.
Appellate counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende), indicating he has not been able to identify any arguable issues for reversal on appeal. Counsel asks this court to review the record for error as mandated by Wende. We offered Dunsmore the opportunity to file his own brief on appeal, Dunsmore responded with motions, declarations, points and authorities and a supplemental brief. We will address Dunsmore's materials post.
DISCUSSION
The facts of the underlying offenses are not relevant to the procedural posture of this case. We will omit a statement of facts. --------
As we have noted, appellate counsel has filed a Wende brief asking this court to review the records required by Wende and Anders v. California (1967) 386 U.S. 738 (Anders). In this case, counsel technically has not complied with Anders and has not shared with the court any possible, but not arguable issues he considered in evaluating the merits of the appeal. In this case, however, there are realistically no appellate issues, whether they be possible or arguable issues. Here, Dunsmore appeals from the denial of his motion to withdraw a 15-year-old guilty plea, which had been final for over a decade before the motion. There is simply no basis for this appeal and failure to address possible Anders issues has not hindered our review of the record.
Dunsmore's materials complain about many things. He complains about prison authorities. He argues appellate counsel was deficient for not serving trial counsel with the brief. Dunsmore alleges the record was incomplete. He appears to continue to argue his strike prior should be challenged on this appeal. Regarding those matters that relate to this case, Dunsmore claims he did not understand the waiver of rights during the plea. He alleges his due process rights have been infringed and he should be allowed to withdraw his plea. We have carefully reviewed Dunsmore's submissions and the record. He has not raised any arguable issues for reversal based on the record before us.
We have reviewed the entire record as mandated by Wende and Anders. We have not identified any arguable issues for reversal on appeal. Competent counsel has represented Dunsmore on this appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J. WE CONCUR: O'ROURKE, J. GUERRERO, J.