Filed 6/16/21 P. v. Harris CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

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, Judge s

. † 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.

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* 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 charg e for a term of four years in prison. On appeal, his appellate counsel has filed a

brief that summarizes the facts with citation s to the record, raises no issues, and asks this court to independently review the record. ( People v. Wende (1979) 25 Cal.3d 4 36 ( Wende ). ) We affirm.

FACTS 1

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 def endant 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 pr ohibited 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 s ame 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 te rm 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 c ourt 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. BF175085 A . 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 h is 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 i ndependent review of the record, we find that no reasonably arguable factual or legal issues exist.

DISPOSITION The judgment is affirmed.