Filed 6/16/21 P. v. Harris CA5

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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

DEVON DANTE HARRIS,

Defendant and Appellant.

F081021

(Kern Super. Ct. No. BF175085A)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Kern County. 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.

†

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.

-ooOoo-

* Before Hill, P.J., Levy, J. and Detjen, J.

†

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.
2.

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.

FACTS1

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.

1 The following facts are from the preliminary hearing in case No. BF175085A.
3.

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.
4.

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.