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People v. Logan CA4/2 (2023) · DecisionDepot
/ California Court of Appeal People v. Logan CA4/2 Unpublished Filed 11/13/23 P. v. Logan CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
More from California Court of Appeal Source: opinion data from the Free Law Project / CourtListener (public-domain court records). DecisionDepot is for informational use only and is not legal advice — verify against the official reporter before relying on any text or AI-generated summary.
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.
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
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
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,
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
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
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
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.
FIELDS J.
RAPHAEL J.