People v. Logan CA4/2

• Court: California Court of Appeal
• Decided: November 13, 2023
• Docket: E080358
• Status: Unpublished

Opinion

Filed 11/13/23 P. v. Logan CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E080358

v. (Super.Ct.No. FVI22001026)

DAVION ELISHA LOGAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. John P.

Vander Feer, Judge. Affirmed with directions.

Rex Adam Williams, under appointment by the Court of Appeal, for Defendant

and Appellant.

No appearance for Plaintiff and Respondent.

1 INTRODUCTION

Defendant Davion Elisha Logan appeals from his conviction for second degree

burglary (Pen. Code,1 § 459), following a jury trial. We appointed counsel to represent

defendant on appeal, and counsel filed an opening brief raising no arguable issues.

(People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v. California (1967) 386 U.S.

738 (Anders).) Defendant was invited to submit a supplemental brief on his own behalf,

but he has not done so. We affirm with directions.

BACKGROUND

On January 10, 2022, Arthur Gonzales, who lived alone in San Bernardino, arrived

home from work about 5:00 in the afternoon, entering through the front door and using a

key to unlock it. Upon entering, he heard the television was on and the shower was

running, so he thought someone had broken into his house, and went to the kitchen where

he grabbed a knife. A box of cereal was on the counter in the kitchen and a bowl of

cereal—that had not been there when he left for work in the morning—was on the coffee

table in the living room.

Gonzalez went into the bathroom and saw defendant getting out of the shower.

Gonzales told defendant to turn around and get on his knees, grabbed defendant by the

hair, put the knife to his throat, and called the police. Gonzales assumed defendant had

gained entry to the residence through the bathroom window because he found the

window open with the screen on the windowsill.

1 All further statutory references are to the Penal Code unless otherwise indicated.

2 Officer Hollister arrived at the house and arrested defendant in the bathroom. He

saw a shoe print on the toilet seat cover below the window that was identical to the

footwear defendant had. In the kitchen, the officer found a bowl of cereal and milk in the

sink, while in the living room, the television was on.

Gonzalez had found defendant in his house the evening before, watching

television and eating cereal, and, at that time, Gonzalez threw him out, telling him not to

come back.

On June 7, 2022, the People filed an information charging defendant with first

degree burglary. (§ 459.) On August 11, 2022, the jury found defendant guilty of second

degree burglary.

On December 9, 2022, after considering the report of the probation officer, the

court denied probation and sentenced defendant to county jail for two years.

On December 14, 2022, defendant filed a notice of appeal.

DISCUSSION

At his request, this court appointed counsel to represent defendant on appeal.

Counsel has filed a brief under the authority of Wende, supra, 25 Cal.3d 436 and Anders,

supra, 386 U.S. 738, setting forth a statement of the case, a summary of the facts and

potential arguable issues, and requesting that we undertake an independent review of the

entire record. We offered defendant an opportunity to file a personal supplemental brief,

but he has not done so.

Because this is defendant’s first appeal as of right, and pursuant to the mandate of

People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for

3 potential error. There is substantial evidence to support the conviction for burglary, and

the instructions given to the jury were proper. The court did not abuse its discretion by

ruling that evidence of defendant’s prior uncharged offense was admissible pursuant to

Evidence Code section 1101, subdivision (b). Further, the two-year sentence pursuant to

Penal Code section 1170, subdivision (h), being the middle term, was proper. (Pen.

Code, §1170, subd. (b)(1).)

The only irregularity we have found relates to the clerk’s corrected minute order

from the December 9, 2022 sentencing hearing. The minutes from the sentencing hearing

do not clearly reflect that, as part of the sentence in the instant felony, a disposition had

been reached in two pending and trailing matters, case Nos. FVI22001032 and

MVI22004309, in which the prosecutor agreed to dismiss the charges in return for

defendant’s waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754. For this reason,

it was confusing to read in the minute order that a probation restitution fine, previously

suspended, was to be imposed in this case pursuant to section 1202.44 in the amount of

$300.00. This is in error.

According to the People’s sentencing memorandum, defendant suffered

convictions in 2018 and 2019 for which he was placed on probation, and he violated

probation in 2019. But defendant’s probation was then terminated in 2021 pursuant to

Assembly Bill No. 1950. At the time of sentencing on the current matter, defendant had

two active cases trailing the instant case, a felony and a misdemeanor. Therefore, at the

time of sentencing, defendant had no violations of probation pending, and the sentencing

court did not revoke probation in any case relating to defendant. In the oral

4 pronouncement of judgment, the trial court did not impose any previously suspended

probation revocation restitution fines.

Because probation was denied when the court imposed sentence for the current

matter, defendant is not subject to probation for the felony and therefore is not subject to

a probation revocation restitution fine for the current offense. (People v. Holmes (2007)

153 Cal.App.4th 539, 547.) As for the trailing cases, the record shows the People made a

motion to dismiss those cases subject to defendant’s Harvey waiver, so he is not on

probation for either of them.

Thus, our independent review of the record cannot identify a basis for any order

imposing a suspended probation revocation restitution fine, pursuant to section 1202.44,

although perhaps the clerk intended to refer to the parole revocation restitution fine that is

normally suspended unless or until parole is revoked, as provided by section 1202.45,

subdivision (b). That includes a provision to assess an additional postrelease community

supervision revocation restitution fine or mandatory supervision revocation restitution

fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.

Given that defendant was sentenced to two years in county prison, subject to postrelease

supervision, this suspended restitution fine would be applicable. We therefore direct the

clerk of the court to prepare an amended sentencing minute order.

We are satisfied that defendant’s attorney has fully complied with the

responsibilities of counsel and no arguable substantive issue exists, aside from the error

in the clerk’s minutes. (People v Kelly, supra, 40 Cal.4th at p. 126; Wende, supra, 25

Cal.3d at pp. 441-442.)

5 DISPOSITION

The judgment is affirmed with directions to the clerk of the superior court to

amend the minutes of the December 9, 2022 sentencing hearing to reflect that two

pending cases, case Nos. FVI22001032 and MVI22004309, were dismissed upon

defendant’s waivers pursuant to People v. Harvey, supra, 25 Cal.3d 754, to allow the

court to consider the dismissed cases for purposes of setting restitution and/or restitution

fines. The clerk should further amend the minutes to delete reference to the imposition of

a previously suspended restitution fine pursuant to section 1202.44, and to instead

indicate the imposition of a parole revocation restitution fine pursuant to section 1202.45,

subdivision (b), to be suspended unless defendant violates parole.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

FIELDS J.

RAPHAEL J.