People v. Logan CA1/2 ( 2023 )

Filed 6/20/23 P. v. Logan CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
A166841
v.
SEAN LOGAN, (Mendocino County
Super. Ct. No. 22CR01031)
Defendant and Appellant.
Defendant Sean Logan appeals from a judgment entered after he pled
no contest to two felony counts of assault with a deadly weapon and one
misdemeanor count of driving with a blood alcohol level in excess of .08
percent. Defendant’s court-appointed counsel has filed a brief asking this
court for an independent review of the record under People v. Wende (1979)
25 Cal.3d 436. Defendant was informed of his right to file supplemental
briefing. On June 9, 2023, defendant’s counsel on appeal filed with the court
a one-page handwritten document counsel had received from defendant the
day before, entitled “Supplement Brief.” We have reviewed counsel’s brief
and defendant’s supplemental brief and have independently reviewed the
record. We find no errors or other issues requiring further briefing.
Accordingly, we affirm.
1
On August 4, 2022, defendant was charged by information with three
felony counts of assault with a deadly weapon (a vehicle) (Pen.1 Code, § 245,
subd. (a)(1); counts 1–3) and three misdemeanors: (false imprisonment (§ 236;
count 4), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a);
count 5) and driving with a blood alcohol content of .08 percent or more (Veh.
Code, § 23152, subd. (b); count 6).
According to the preliminary hearing transcript, the incident giving
rise to the current charges occurred on April 26, 2022, in Fort Bragg. Darin
Hammond was coming out of a Safeway and talking to a friend when he was
approached by a woman (Alicia Miller) who expressed fear about a man who
was in her van in the Safeway parking lot and wanted Hammond’s help in
removing him. Miller’s brother later arrived on the scene. The brother and
Hammond went to the van where they encountered defendant and removed
him from the van. According to Hammond, defendant was argumentative
and claimed it was his van. Hammond saw defendant get into a vehicle next
to the van and drive away. Hammond, Miller and her brother and others
were then in the middle of the street between the Safeway and a Starbucks
when defendant came “flying out of the Safeway parking lot” and, according
to Hammond “trie[d] to run us over.” Defendant did a U-turn and returned
and tried to hit them again. For purposes of the preliminary hearing, defense
counsel stipulated that defendant’s blood alcohol content that night was .10
percent after driving.
As part of a negotiated disposition, on September 22, 2022, defendant
pled no contest to two felony counts of assault with a deadly weapon (counts 1
and 2, amended to strike the word “vehicle” from each count) and to a
1All further statutory references are to the Penal Code unless
otherwise stated.
2
misdemeanor violation of Vehicle Code section 23152, subdivision (b) (count
6). Pursuant to the plea agreement, the parties stipulated to a five-year
prison term (with execution of sentence suspended), including the aggravated
term of four years on count 1, on terms and conditions that included three
years of formal probation. Defendant admitted to circumstances in
aggravation.2
Defendant completed a written change of plea form that advised him of
his rights and the rights he was waiving; the forms were signed by his
counsel and by the court. The parties stipulated to a factual basis for the no
contest pleas. As to the felonies, it was agreed that on or about April 26,
2022, in Mendocino County, defendant committed an assault with a deadly
weapon other than a knife on Alicia Miller and on Darin Hammond. The
court (Honorable Keith Faulder) reviewed the change of plea form,
questioned defendant, and found defendant knowingly, voluntarily, and
intelligently waived his rights and entered pleas of no contest.
2 The probation officer “as a friend of the court” had noted at the change
of plea hearing that “in light of the fact that the parties stipulated to the
aggravated term, given the change in the law” it was “best practice” to have
defendant “admit at least one aggravated factor to support the plea,” which
he did. In context, the court and parties were referring to Senate Bill No.
567 (2021–2022 Reg. Sess.), which became effective January 1, 2022, and
amended section 1170 “in several fundamental ways.” (People v. Flores
(2022) 73 Cal.App.5th 1032, 1038.) As pertinent here, section 1170,
subdivision (b)(2), now provides, in relevant part, “The court may impose a
sentence exceeding the middle term only when there are circumstances in
aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have been found
true beyond a reasonable doubt at trial by the jury or by the judge in a court
trial.” (Italics added.) At sentencing, it was similarly noted by the court that
the unexecuted sentence was “notwithstanding the change in the law and the
presumption of the middle term.”
3
At the sentencing on November 3, 2022, the court (Honorable Carly
Dolan) stated that it had read and reviewed the presentence investigation
report. (Defendant had previously waived the right to be sentenced by the
judge who had taken his change of plea.) The court also noted defendant was
“ineligible for probation. I count about six prior felony convictions. I am
prepared to find unusual circumstances based on the parties essentially
stipulating to unusual circumstances.3 [Defendant] clearly does suffer from a
substance abuse disorder. [¶] There was an element of provocation here and
elements of unusual circumstances to the offense. This wasn’t just a blatant
attack on just a random community member.”
Defendant was sentenced consistent with the plea agreement: five
years of imprisonment, execution of sentence suspended, and defendant was
placed on formal probation for three years, with various conditions including
that he serve 300 days in jail, with credit for 150 days actual time served.4
The then-unexecuted prison sentence consisted of the aggravated term of four
years on count 1, a consecutive one year on count 2, and six months on the
misdemeanor count to run concurrent with the prison term.
3 The deputy district attorney stated at the sentencing hearing, “I
would just note that I do believe drugs and alcohol were a factor in this
situation. I also think that drugs and alcohol were a factor in regards to the
victims at the time as well. The situation became exacerbated because of
that, and so I think that is one of the reasons why this agreement was crafted
as it was. [¶] And I also think there was some acknowledgment that
[defendant] was assaulted pretty seriously after by the victims, so I think
that was part of what the people were contemplating as well.”
4 Counsel on appeal advises that this amounted to credit for time
served. Counsel also advises that defendant’s probation was later revoked,
but this matter is not before us.
4
The trial court ascertained that defense counsel had received the
proposed terms and conditions of probation and gone over them with his
client. After stating the terms and conditions of probation, the trial judge
asked defendant whether he accepted all of the terms outlined in the order of
probation, and defendant said yes. Defendant also signed the Order of
Probation indicating his understanding of the terms of his probation and
agreeing to abide by them. The remaining counts of the information were
dismissed.
DISCUSSION
We have reviewed the record on appeal for any arguable issues.
Defendant’s supplemental brief consists of a one-page recitation of
what he believes occurred on April 26, 2022. He claims he was asleep in “a
woman’s van,” on medication, and had drunk a beer, which made him “unable
to function physicly [sic] or mentaly [sic].” He was “unconscious” when
Hammond “dragged” him from the van and “beat me unconscious.” He was
“disoreantated” [sic] and tried to leave the parking lot in his car. Miller and
Hammond were in the middle of the street; he “swearved [sic] away from
them and ended up in Starbucks parking lot where again they were blocking
the street from me getting away.” He claims he was “falsely accused of trying
to hit them.” He claims Hammond “had been in trouble before for draging
[sic] someone from there [sic] vehicle to beat them up yet I’m thrown in jail
because of my past.” He concludes, without more: “I have had my 8th
amendment stomped all over since I’ve been in California. My lawyer was
incompatant [sic] and did not stand up for my rights and [illegible] me.” The
supplemental brief ends there, in mid-sentence, and is not signed.
Defendant was sentenced after a no contest plea and did not obtain a
certificate of probable cause. His appeal was timely filed. Any issues as to
5
the validity of his plea are not before us. (§ 1237.5.) Before entering his no
contest plea, defendant was advised of his rights, and there is no indication
he did not understand his rights, including the rights he was waiving. The
court found defendant had knowingly, voluntarily, and intelligently waived
his rights and his plea was voluntary. Counsel and defendant stipulated to
the factual basis for the plea.
The sentence imposed appears to be authorized by law, including the
fines and fees, and was in compliance with the plea agreement. Custody
credits appear to have been calculated correctly.
Based on our review of the record before us, defendant was
represented by competent counsel who acted to protect his rights and
interests. Although defendant was presumptively not eligible for probation,
his trial counsel was successful in negotiating a probationary sentence. She
filed a three-page sentencing statement urging the court to find factors
indicating the existence of an “unusual case” in which probation may be
granted if otherwise appropriate. Among the factors counsel identified as
“limiting defendant’s culpability” were that he was “beaten up by Mr.
Hammond,” that defendant “says he was in his car trying to get away from
Mr. Hammond” and “was in fear for his safety,” that defendant suffers from
alcohol and drug dependency and on the day in question was “under the
influence of alcohol coupled with his prescription medication,” and that
defendant was “not opposed to treatment for his dependency and mental
health issues,” all of which “support a finding of unusual circumstances to
support a grant of probation” in his case.
We conclude there are no arguable issues within the meaning of People
v. Wende, supra, 25 Cal.3d 436.
The judgment is affirmed.
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_________________________
Miller, J.
WE CONCUR:
_________________________
Stewart, P.J.
_________________________
Markman, J.*
A166841, People v. Logan
*Judge of the Alameda Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
7