P. v. Logan CA1/4

Filed 5/31/13 P. v. Logan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A134389 v. JEROME LOGAN, (Contra Costa County Super. Ct. No. 1107515) Defendant and Appellant.

In re JEROME LOGAN, A137892 & A137962 on Habeas Corpus.

I. INTRODUCTION A jury convicted appellant Jerome Logan of four counts of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)).1 The jury also found true two out of four enhancement allegations alleging that appellant had personally used a dangerous or deadly weapon, pepper spray, in the commission of the robberies (§ 12022, subd. (b)(1)). In this appeal, appellant argues that the two enhancement allegations must be reversed because the evidence does not support the jury‘s finding that pepper spray was a dangerous or deadly weapon capable of inflicting great bodily injury. Finding no merit to this contention, we affirm the judgment.

1 All statutory references are to the Penal Code.

1

After this appeal was fully briefed, appellant filed two handwritten petitions for writs of habeas corpus in propria persona, seeking to raise additional issues not raised by his counsel on appeal. On our own motion, we order the petitions (A137892 & A137962) consolidated with the appeal (A134389) for purposes of resolution by a single opinion. We deny the petitions because appellant has failed to make a prima facie case that he is entitled to relief. II. FACTS On November 24, 2010, and again on December 3, 2010, a Black male wearing a black coat with a hood and aviator sunglasses entered Coach stores in Concord (the November 24th incident) and in Walnut Creek (the December 3d incident) and brazenly started shoving Coach handbags that were on display into a black plastic garbage bag. During each incident, he held something in his hand that resembled a can of pepper spray, which he held up as a warning to anyone who started to come too close. Witnesses to both robberies saw the perpetrator leave in a burgundy-colored truck/SUV. The vehicle, which had a distinctive tow hitch, was recorded on a surveillance camera and a photograph was distributed to Bay Area law enforcement agencies. An officer saw a vehicle that matched the description and photograph of the vehicle involved in the robberies. The officer obtained the vehicle‘s license plate number. That license plate number was registered to a 1996 GMC Yukon belonging to appellant. A photo lineup was created that included appellant‘s photo. Three of the four Coach store employees who were working when the robberies took place picked appellant‘s photo out of a six-person photo lineup. A jury trial was held and appellant was convicted of four counts of second degree robbery. The jury found an allegation that appellant used a deadly or dangerous weapon in the commission of the offense––the canister of pepper spray––to be true as to two of the four robbery counts. The evidentiary distinction supporting the true finding was that the employees named in these counts each came within three to six feet of appellant during the robbery while the other employees kept their distance.