Filed 5/12/21 P. v. Bunn 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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, C091654
Plaintiff and Respondent, (Super. Ct. No. 08F06142)
v.
GARY LAMONT BUNN,
Defendant and Appellant.
Defendant Gary Lamont Bunn appeals from a resentencing order where the trial
court declined to exercise its discretion in striking several personal use of a firearm
enhancements (Pen. Code, § 12022.53, subd. (b)).1 We appointed counsel to represent
defendant on appeal. Appointed counsel filed an opening brief invoking the independent
judicial review procedures set forth in Anders v. State of California (1967) 386 U.S. 738
1 Undesignated statutory references are to the Penal Code.
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[18 L.Ed.2d 493] and People v. Wende (1979) 25 Cal.3d 436 (Wende). Finding no
arguable error that would result in a disposition more favorable to defendant, we will
affirm the judgment.
We provide the following brief description of the facts and procedural history of
the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
In June 2010, a jury found defendant guilty of five counts of residential robbery
(§ 211)--with the additional enhancement he committed these in concert with two or
more persons (§ 213, subd. (a)(1)(a)) and that one of the robberies involved a victim of
65 years or older (§ 667.9, subd. (a))--and two counts of attempted first degree robbery
(§§ 664/211). The jury also found true as to all seven counts defendant personally used a
firearm (§ 12022.53, subd. (b)). The trial court sentenced him to 37 years in prison.
Defendant appealed and on September 24, 2012, we found there was insufficient
evidence supporting the personal use of a firearm allegation for two of the counts so we
reversed those two findings and remanded for resentencing. (People v. Bunn (Sept. 24,
2012, C067731) [nonpub. opn.].) On remand, the trial court resentenced defendant to 37
years in prison.
On November 6, 2018, after receiving a letter from the California Department of
Corrections and Rehabilitation, the court corrected some issues in the sentencing minutes
and defendant’s abstract of judgment. The court noted this was a form of resentencing
and so it had discretion to strike any of the remaining section 12022.53, subdivision (b)
personal use of a firearm enhancements. The court offered to hold a hearing, at either
party’s request, on this issue and defendant requested such a hearing.
The parties briefed and argued on whether the court can and should strike
defendant’s section 12022.53, subdivision (b) enhancements. The court found it could
strike the firearm enhancements but declined to exercise its discretion to do so given the
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severity of the crimes and “the plethora of serious disciplinary rules violations” while
incarcerated. The court resentenced defendant to 37 years.
Defendant timely appealed. While his appeal was pending, the trial court
corrected the total number of day credits in the abstract of judgment.
DISCUSSION
Appointed counsel filed an opening brief setting forth the facts of the case and
asking this court to review the record and determine whether there are any arguable
issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of
the right to file a supplemental brief within 30 days of the date of filing the opening brief.
Defendant filed a supplemental brief, arguing several claims of error. Specifically,
he argues: (1) the underlying robbery convictions lack substantial evidence because none
of the robbery victims identified him and his fingerprints and DNA were not found at the
crime scenes; (2) the District Attorney forced witnesses to testify at his trial even though
they had no idea who defendant was; (3) he was improperly shackled during trial; (4) the
trial court improperly required the jurors to redeliberate after initially declaring a hung
jury; and (5) his closing arguments and certain victims’ testimony at trial are inaccurately
recorded in the reporter’s transcript. Defendant’s contentions do not raise any relevant
arguable error because they are attacks on his 2005 convictions, which we addressed in
our previous opinion in his direct appeal. Any attack on our previous opinion is
precluded under the doctrine of res judicata. (People v. Barragan (2004) 32 Cal.4th 236,
252.) It is well established that a defendant may challenge the validity of a prior
conviction by way of a petition for writ of habeas corpus. (People v. Allen (1999)
21 Cal.4th 424, 429; People v. Picklesimer (2010) 48 Cal.4th 330, 339.)
Having undertaken an examination of the entire record, we find no arguable error
that would result in a disposition more favorable to defendant. Accordingly, we affirm
the judgment.
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DISPOSITION
The judgment is affirmed.
HULL, Acting P. J.
We concur:
MAURO, J.
RENNER, J.
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