Opinion
F081021
06-16-2021
THE PEOPLE, Plaintiff and Respondent, v. DEVON DANTE HARRIS, Defendant and Appellant.
Erica L. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BF175085A H.A. Staley (Retired Judge of the Kern Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.); Barbara Lane (Retired Judge of the Ventura Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.); Collette M. Humphrey; and Charles R. Brehmer, Judges.
Judge Staley presided over the motion to set aside the information; Judge Humphrey presided over the arraignment; Judge Lane presided over the preliminary hearing; and Judge Brehmer presided over the motion to amend the information and the sentencing hearing.
Erica L. Gambale, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT [*]
INTRODUCTION
Appellant and defendant Devon Dante Harris pleaded no contest to an assault charge for a term of four years in prison. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm.
The following facts are from the preliminary hearing in case No. BF175085A.
At 4:42 a.m. on December 30, 2018, Deputy Santos of the Kern County Sheriff's Department responded to a residence and spoke with J.R. (the victim). The victim reported that she had been sleeping in a bedroom that night. Her cousin slept on the floor, and defendant was sitting in a nearby chair watching television. The victim said defendant was a family friend, and they were not in an intimate relationship.
The victim reported that she woke up at 3:00 a.m. and defendant was sitting on the side of her bed, and she went back to sleep. She woke up at 4:00 a.m., and defendant was kneeling behind her on the bed and attempting to perform an act of sodomy on her. She discovered her shorts had been lowered to expose her body. The victim said she punched defendant in the face multiple times, left the bedroom, and told her family what had happened. Defendant fled before the deputy arrived.
The charges
On January 7, 2019, a felony complaint was filed in case No. BF175085A, charging defendant with count 1, sodomy of an unconscious person (§ 286, subd. (f)); and count 2, sodomy by force or duress (§ 286, subd. (c)(2)(A)), with prior conviction allegations. On the same day, the court issued a criminal protective order that prohibited defendant from having contact with the victim.
On February 15, 2019, the court conducted the preliminary hearing and held defendant to answer.
On February 22, 2019, the information was filed that charged defendant with the same offenses as in the complaint, with one prior strike conviction and one prior prison term enhancement (§ 667.5, subd. (b)).
On September 25, 2019, defendant filed a motion to set aside the information for insufficient evidence. On October 7, 2019, the People filed opposition. On October 9, 2019, the court denied the motion.
Plea and admission
On February 18, 2020, the court granted the People's motion to amend the information and added count 3, assault with force likely to produce great bodily injury, committed against the same victim (§ 245, subd. (a)(4)), with a prior strike conviction.
Thereafter, defendant pleaded no contest to count 3 and admitted the prior strike conviction, and the court dismissed the remaining charges and allegations, for an indicated second strike term of four years. Defendant also admitted that he violated probation in the unrelated case No. BF171027C.
Sentencing
On April 1, 2020, the court conducted the sentencing hearing. In case No. BF175085A, the court imposed the lower term of two years, doubled to four years as the second strike sentence, for his conviction of assault with force likely to produce great bodily injury. The court issued a protective order that prohibited defendant from having any contact with the victim for 10 years. The court also sentenced defendant to four years for his conviction in case No. BF171027C, to be served concurrently with the term imposed in case No. BF175085A.
On April 1, 2020, defendant filed a notice of appeal in case No. BF175085A. The court granted his request for a certificate of probable cause.
DISCUSSION
As noted above, defendant's counsel has filed a Wende brief with this court. The brief also includes the declaration of appellate counsel indicating that defendant was advised he could file his own brief with this court. By letter on October 19, 2020, we invited defendant to submit additional briefing. To date, he has not done so.
After independent review of the record, we find that no reasonably arguable factual or legal issues exist.
DISPOSITION
The judgment is affirmed. [*] Before Hill, P.J., Levy, J. and Detjen, J.