Filed 9/14/26 P. v. Dunn CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B345971
(Super. Ct. No. 2024008442)
Plaintiff and Respondent, (Ventura County)
v.
SEAN DUNN,
Defendant and Appellant.
Sean Dunn appeals after a jury convicted him of assault
with intent to commit sexual penetration by force, fear, or threats
(Pen. Code, 1 §§ 220, 289) and simple battery (§ 242). Appellant
contends the trial court abused its discretion by denying his
motion pursuant to People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero). We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A.G. met appellant in a walkway behind Walmart. The two
engaged in small talk and drank alcohol together. A.G. had been
drinking Jameson for about one to two hours before meeting
1 Undesignated statutory references are to the Penal Code.
appellant. A.G. had trouble remembering the incident due to
intoxication.
A.G. remembered at some point being in bushes near an
apartment complex. Appellant forced himself on A.G. He pulled
the back of A.G.’s hair. A.G. told appellant to stop and was “just
trying to get away.” Appellant put his fingers in A.G.’s vagina.
A.G. did not consent to any sexual activity with appellant.
Kelly Donnelly was walking her dog in “broad daylight.”
She heard a woman repeatedly say “get off me, get off me right
now.” When she looked into the bushes, Donnelly saw A.G. flat
on her back with appellant on top of her. Appellant was making
sexual motions.
Donnelly “yelled get the F off her.” Donnelly felt she
needed to yell because appellant was not listening to A.G.
Appellant did not immediately stop. Another person arrived and
called the police.
In body-worn video, A.G. said appellant tried to “hump”
her. She said appellant tried to take her pants off and put “it” in.
A.G. thought appellant was going to rape her. Eventually, after
A.G. went to the police department, an ambulance had to be
called due to her level of intoxication.
The jury convicted appellant of assault with the intent to
commit sexual penetration by force, fear, or threats (§§ 220, 289;
count 1) but found not true the allegation that appellant engaged
in violent conduct indicating a serious danger to society (Cal.
Rules of Ct., rule 4.421(b)(1)). The jury found appellant not
guilty of sexual penetration by force, fear, or threats (§ 289, subd.
(a)(1)(A); count 2) and instead found him guilty of the lesser
included offense of simple battery (§ 242).
Appellant had previously sustained three strike prior
convictions—one for robbery (§ 211) committed in 2007 and two
for criminal threats (§ 422) committed in 2020.
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As to the first strike, along with two fellow gang members,
appellant robbed a bank and a person within it. One of
appellant’s codefendants was armed with a firearm. Appellant
received five years in prison.
The two criminal threats convictions arose out of one
incident. Appellant was with his mother, three sisters, and an
11-year-old nephew. Appellant became upset and told his
mother, “I’ll fucking kill you all!” After appellant’s mother told
him to be quiet, appellant responded, “I’ll kill you, you fucking
bitch!” Appellant grabbed a fork and made a stabbing motion
toward his nephew while yelling, “I’ll fucking stab you!”
Appellant received 32 months in prison.
The court denied appellant’s Romero motion. The court
underscored appellant’s brazen conduct against a vulnerable
victim. The court acknowledged the temporal remoteness of the
robbery conviction but noted appellant’s “consistent pattern of
criminal activity over the years . . . .” Appellant’s Static-99 score
fell into the “well-above-average risk category.” Appellant’s
vague plan to “do better” did not inspire confidence in the court.
There was “little doubt” in the court’s mind that “but for
the intervention of a [G]ood Samaritan . . . [appellant] would
have completed the rape of the victim . . . . The concern is that he
would seize upon such opportunity again if one were to present
itself which is why I do believe a lengthy prison sentence is
warranted, namely, to protect society.” The court sentenced
appellant to a total of 25 years to life.
DISCUSSION
Courts deciding Romero motions “‘must consider whether,
in light of the nature and circumstances of his present felonies
and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
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in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.’” (People v. Carmony (2004) 33 Cal.4th 367, 377
(Carmony).) We review Romero motion denials for abuse of
discretion. (Id. at p. 376.)
Such abuse of discretion occurs in limited circumstances—
for example, “where the trial court is not aware of its discretion;
where [it] considers impermissible factors; or where applying the
Three Strikes law would produce an arbitrary, capricious, or
patently absurd result under the specific facts of a particular
case.” (People v. Dryden (2021) 60 Cal.App.5th 1007, 1029.) “The
[trial] court is presumed to have considered all of the relevant
factors in the absence of an affirmative record to the contrary.”
(People v. Myers (1999) 69 Cal.App.4th 305, 310 (Myers).)
The trial court did not abuse its discretion. Appellant
forced himself upon a highly intoxicated A.G. in broad daylight.
He penetrated A.G.’s vagina with his fingers and refused to get
off her although she repeatedly asked him to do so. Even when a
third party intervened by yelling at appellant, he did not
immediately stop. Appellant’s lengthy criminal history was not
limited to the strike offenses of robbery and criminal threats. It
also included drug offenses, disrupting a school, and failure to
register as a sex offender. Appellant was 49 years old at the time
of sentencing and lacked a concrete plan for reforming his
criminal behavior. He does not present the “extraordinary case”
in which failure to strike is an abuse of discretion. (Carmony,
supra, 33 Cal.4th at p. 378.)
Relying on People v. Avila (2020) 57 Cal.App.5th 1134
(Avila), appellant argues the trial court improperly gave
significant weight to a crime that did not occur. In Avila, the
defendant was convicted of attempted robbery and attempted
extortion after he tried to extract money from individuals selling
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oranges at or near a freeway offramp. (Id. at p. 1139.) He then
squashed bags of oranges. The Court of Appeal faulted the trial
court for speculating that “had someone not called the police,
‘who knows what would have happened.’” (Id. at p. 1142.) The
trial court thereby implied physical harm that “never appeared in
the evidence at trial.” (Ibid.)
Here, by contrast, appellant physically forced himself upon
a vulnerable victim and inserted his fingers into her vagina. By
his own admission, appellant’s goal was “maybe to have sex.”
Appellant tried to “hump” A.G. and remove her pants. Given the
evidence, the trial court’s conclusion regarding the likelihood of a
completed rape but for third-party intervention is unlike the
unsupported flight of “imagination” from squashing oranges to
physical harm. (Avila, supra, 57 Cal.App.5th at p. 1142.)
Although appellant argues the court’s conclusion conflicts with
the jury’s verdicts, those verdicts did not bind the court in its
assessment of the evidence at sentencing. (Cf. In re Coley (2012)
55 Cal.4th 524, 557.)
Appellant argues the court failed to meaningfully consider
or properly weigh his mental health and substance abuse as
mitigating factors, the remoteness and nature of his robbery prior
strike, and his prospects for rehabilitation. We presume the trial
court considered all relevant factors when, as here, an affirmative
record to the contrary is absent. (Myers, supra, 69 Cal.App.4th at
p. 310.) Moreover, except for substance abuse as mitigation, the
court addressed the foregoing factors in its Romero ruling.
Appellant’s arguments reweighing factors before the trial court
do not show that its decision was “so irrational or arbitrary that
no reasonable person could agree with it.” (Carmony, supra, 33
Cal.4th at p. 377.)
Appellant contends the trial court dismissed his mental
health “outright due to lack of formal proof . . . .” We disagree.
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The court simply noted the limited information and the absence
of a “nexus between any mental health condition [and] the
commission of the underlying offense.” Appellant has not shown
the court’s analysis was improper.
Finally, appellant contends that because his “two section
422 strike convictions arose from the same act, the trial court
was required to dismiss one of them under Romero.” We
disagree. Two prior convictions arising out of a single act “may
not be treated as two strikes for purposes of Three Strikes
sentencing” even when two victims are harmed. (People v. Shaw
(2025) 18 Cal.5th 1089, 1093.) Here, however, appellant
committed separate acts. He both (1) told his mother, “I’ll kill
you, you fucking bitch!” and (2) made a stabbing motion with a
fork toward his nephew while yelling, “I’ll fucking stab you!”
That these acts occurred during the same course of conduct did
not prevent the trial court from treating each resulting conviction
as a separate strike. (See People v. Vargas (2014) 59 Cal.4th 635,
638.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
CODY, P. J.
We concur:
YEGAN, J. BALTODANO, J.
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Catherine M. Voelker, Judge
Superior Court County of Ventura
______________________________
Layana White, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General, and Margaret K. Lee, Deputy Attorney
General, for Plaintiff and Respondent.
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