Filed 9/15/16 P. v. Dunn CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B271245

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA067506)
         v.

DYLAN L. DUNN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen
Blanchard, Judge. Affirmed.
         Lori A. Quick, under appointment by the Court of Appeal, for Defendant and
Appellant.
         No appearance for Plaintiff and Respondent.
                                          _______________________
       Defendant and appellant Dylan L. Dunn entered into a case settlement agreement
with the prosecution. Defendant entered a plea of no contest to custodial possession of a
weapon (Pen. Code, § 4502, subd. (a))1 and admitted one of seven alleged prior
convictions falling under the three strikes law (§§ 667, subds. (b)-(j) and 1170.12). In
return for defendant’s plea and admission, the trial court sentenced defendant to the
agreed upon term of six years in state prison. The prosecutor moved to dismiss the six
remaining prior conviction allegations under the three strikes law and seven prior prison
term allegations (§ 667.5, subd. (b)).
       Defendant filed a notice of appeal and obtained a certificate of probable cause
(§ 1237.5) from the trial court. This court appointed counsel for defendant on appeal.
Appointed counsel filed a brief raising no issues, but requesting this court to
independently review the record for arguable contentions pursuant to People v. Wende
(1979) 25 Cal.3d 436. Defendant was advised of his right to file a supplemental brief
within 30 days. Defendant filed a supplemental brief arguing he received inadequate
assistant of trial counsel in connection with the case settlement.
       We have completed our independent review of the record. The claims in
defendant’s supplemental brief are without merit and in material aspects misstate the
record on appeal. For example, defendant argues that he was convinced by counsel to
waive preliminary hearing with the understanding that the prosecution would hold open
its pre-preliminary hearing offer of four years in state prison. This is incorrect. The
preliminary hearing magistrate stated, “We should put on the record the agreement was
the defendant was going to waive preliminary hearing with the understanding the People
were going to keep their six-year offer open,” a fact confirmed by the prosecutor. The
record expressly refutes defendant’s claim of a four-year offer. Defendant also argues
defense counsel mislead him into believing she would speak with the judge in the trial
court about a four year sentence, but she failed to do so. This also misrepresents the


       1   Statutory references are to the Penal Code.

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appellate record. The trial court explained to defendant before the plea that “[y]our
attorney came to me to see if you can do any better on the open plea and I indicated given
your criminal history and also the nature of how the weapon was possessed in custody
I’m not willing to do anything better than six years. That’s why I’m referring to it as the
People’s offer.” Counsel did, in fact, try to convince the court to impose a lesser
sentence on an open plea to the court.
       Defendant’s further arguments that he was distracted by looking for his wife in
court and he did not understand he was receiving a six year sentence are also contrary to
the record. Nothing in the appellate record indicates defendant was not paying attention
to the court’s questions during the plea colloquy. He consulted with counsel at different
points during the plea. The trial court unambiguously explained to defendant the six-year
sentence that would be imposed: “Do you understand the offer from the prosecution for
six years total?” Defendant replied, “Yes, Your Honor.” Defendant expressly told the
court he wanted to accept the prosecutor’s offer. Defendant further claims he had
inadequate communication with counsel before his plea. The trial court asked, “Have
you had an opportunity to speak with your lawyer about your case, including any
defenses you might have?” Defendant replied, “Yes, I have.”
       What the record does reflect is that the trial court carefully explained to defendant
the offer of six years, how the sentence would be calculated, and what allegations the
prosecution would dismiss, including a specific explanation that the allegations would be
dismissed for purposes of this case only. Defendant at all times responded appropriately
to the court’s inquiries. He was fully advised of his constitutional rights. There is no
basis in the record to question the validity of the plea.
       Finally, defendant challenges the $1,800 restitution fine imposed by the trial court
under section 1202.4. The amount of the fine was not an abuse of discretion. The
minimum fine under section 1202.4, subdivision (b)(1), is $300. The court is permitted
under section 1202.4, subdivision (b)(2), to calculate the amount of the fine by
multiplying the minimum fine by the number of years imposed as a sentence, multiplied



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by the number of felonies committed. The restitution fine in this case was calculated in a
manner consistent with the statute—$300 multiplied by six years, for a total of $1,800.
      The judgment is affirmed. (Smith v. Robbins (2000) 528 U.S. 259.)




             KRIEGLER, J.


We concur:



             TURNER, P.J.



             KUMAR, J.




         Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

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