Filed 5/31/13 P. v. Logan CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              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.


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       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.


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       On December 9, 2011, the trial court sentenced appellant to five years four months
in prison.
                                            III.
                                      DISCUSSION
       A. Sufficiency of the Evidence
       Appellant raises a single contention on appeal––that the evidence is insufficient to
support the two weapon use enhancements under section 12022, subdivision (b)(1)
because pepper spray was not proven to be a dangerous or deadly weapon capable of
inflicting great bodily injury. We disagree.
       We review the record in the light most favorable to the judgment and presume in
support of the judgment the existence of every fact the jury could reasonably deduce from
the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1175.) Our inquiry is directed to
whether any rational trier of fact could have found the elements of the enhancement
beyond a reasonable doubt. (Ibid.) We do not resolve credibility issues or evidentiary
conflicts, because that is the exclusive province of the trier of fact. (People v. Martinez
(2003) 113 Cal.App.4th 400, 412.) Reversal is not warranted unless it appears ― ‗that
upon no hypothesis whatever is there sufficient substantial evidence‘ ‖ to support the true
finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
       Section 12022, subdivision (b)(1) provides: ―Any person who personally uses a
deadly or dangerous weapon in the commission of a felony or attempted felony shall be
punished by an additional and consecutive term of imprisonment in the state prison for
one year, unless use of a deadly or dangerous weapon is an element of that offense.‖
(Italics added.) A true finding under this section requires proof that ― ‗during the crime
or attempted crime, the defendant himself or herself intentionally displayed in a
menacing manner or struck someone with an instrument capable of inflicting great bodily
injury or death . . . .‘ ‖ (People v. Blake (2004) 117 Cal.App.4th 543, 555, fn. omitted
(Blake).)
       Case law defines a ―deadly or dangerous weapon‖ as used in section 12022,
subdivision (b)(1), as ― ‗an instrument capable of inflicting great bodily injury or


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death,‘ ‖ and ―great bodily injury‖ as ― ‗injury which is significant or substantial, not
insignificant, trivial or moderate.‘ ‖ (Blake, supra, 117 Cal.App.4th at pp. 555-556,
fns. omitted.) In determining whether an object is a dangerous or deadly weapon in the
context of section 12022, subdivision (b)(1), the trier of fact may look to the nature of the
object, the manner of its use, and any other relevant fact. (Blake, at p. 555; see generally
People v. Page (2004) 123 Cal.App.4th 1466, 1471 (Page).)
       In Blake, for example, the court concluded that a jury reasonably could have found
that pepper spray was a ―dangerous weapon‖ and that it was used in such a way that it
was capable of causing serious bodily injury. (Blake, supra, 117 Cal.App.4th at p. 559.)
The evidence in Blake showed that the defendant had sprayed a substance that two
robbery victims believed to be pepper spray directly into their eyes. (Id. at pp. 547, 555.)
He produced a canister and threatened to ―mace‖ a third victim, convincing the victim to
hand over his money (count 6). (Id. at pp. 547-548, 555.) The court found that evidence
that the victims who were sprayed suffered substantial, though transitory, respiratory
distress, burning sensations, and blindness demonstrated that the chemical spray could,
and did, inflict serious bodily injury. (Id. at p. 559.) As to the third victim who was
threatened with the pepper strayed but not actually sprayed (count 6), the jury convicted
the defendant of robbery while using a dangerous or deadly weapon. (Id. at p. 555.)
Surveying out-of-state cases involving the use of pepper spray, the Blake court observed,
―it takes little imagination to picture the more serious injuries these victims were
fortunate to escape, such as burns, chemical pneumonia, cornea damage or serious
asthma attacks.‖ (Id. at p. 559.) The court believed the evidence supported the
conclusion that ―appellant intended to, and did, use the chemical spray to immobilize and
temporarily disable his victims in order to escape with the loot. Evidence of these
circumstances in combination supports the jury‘s reasonable deduction appellant used the
chemical spray as a dangerous weapon in committing the robberies. (Ibid.)
       Appellant claims the evidence here, unlike the evidence in Blake, was insufficient
to support a finding that the pepper spray possessed by appellant during the robberies was
a deadly and dangerous weapon capable of causing great bodily injury. Appellant claims


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―[t]here is a crucial difference between the Blake case and this one: in Blake, the
perpetrator actually sprayed the pepper spray right into the faces of two shopkeepers,‖
while in this case, the evidence showed the pepper spray ―was not used, but only
brandished . . . .‖ He claims that ―in this case, there is insufficient evidence that pepper
spray, when brandished but not detonated, is capable of ‗significant‘ or ‗substantial‘
injury . . . .‖
        There are several problems with appellant‘s argument. In the first place, appellant
ignores the fact that the Blake court upheld a conviction in a situation that closely
parallels the one before us, where the pepper spray was merely displayed, but did not
actually used, in the perpetration of the robbery (count 6). (Blake, supra, 117
Cal.App.4th at pp. 547-548; 555.) Also, the focus of our inquiry is upon the reasonable
potential or capability of the weapon to inflict great bodily injury or death, not whether
the injury that was actually inflicted. (See People v. Pollock (2004) 32 Cal.4th 1153,
1178; People v. Savedra (1993) 15 Cal.App.4th 738, 744-745; Page, supra, 123
Cal.App.4th at p. 1472 [―an instrument can be a deadly weapon even if it is not actually
used with deadly force‖].)
        There is sufficient evidence in this case to suggest that if the victims had attempted
to interfere with appellant as he was stashing handbags into the garbage bag, he was
prepared to use pepper spray to temporarily incapacitate them. Moreover, the jury heard
testimony concerning pepper spray and its ability to inflict great bodily injury within the
meaning of the statute. (See People v. Brown (2012) 210 Cal.App.4th 1, 8.) Steve
Bertolozzi, a Walnut Creek police detective, testified that he has been training police
officers for approximately 20 years, including how to use pepper spray. He testified that
pepper spray causes the mucous membranes to inflame. A person who is sprayed will
have a burning sensation in the eyes and will feel as if he or she is unable to breathe.
Pepper spray can incapacitate a person. It can make the person feel incapable of
functioning. A person who is sprayed will buckle over at the waist, unable to see and
struggling to breathe.



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          Appellant emphasizes that Detective Bertolozzi also testified he did not believe
pepper spray was capable of inflicting ―significant injury.‖ However, the court‘s
instructions and the parties arguments made it clear that it was the jury who was to make
the ultimate determination whether the pepper spray used to commit the robberies in this
case was capable of inflicting great bodily injury. (See Blake, supra, 117 Cal.App.4th at
p. 559, fn. omitted [―Whether appellant used the spray as a dangerous weapon capable of
inflicting great bodily injury was a question for the jury to decide‖].) From the jury‘s
decision, it is obvious the jury disregarded Detective Bertolozzi‘s lay opinion on this
point, something they were entitled to do. (Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875, 890 [jury is free to reject uncontradicted testimony of a witness and draw
its own inferences from the facts]; Conservatorship of McKeown (1994) 25 Cal.App.4th
502, 509 [same]; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632-633
[same].) Under these circumstances, there is substantial evidence from which a jury
could reasonably find that the pepper spray used by appellant in the perpetration of these
robberies was a deadly or dangerous weapon that was capable of causing great bodily
injury.
          B. Habeas Corpus Petitions
          ―When presented with a petition for a writ of habeas corpus, a court must first
determine whether the petition states a prima facie case for relief—that is, whether it
states facts that, if true, entitle the petitioner to relief—and also whether the stated claims
are for any reason procedurally barred. [Citation.]‖ (People v. Romero (1994) 8 Cal.4th
728, 737.)
          Although appellant Jerome Logan (petitioner) has filed two handwritten petitions
for habeas corpus, he asks us to ―disregard‖ his first writ, A137892, in lieu of the second
writ, A137962. So noted, we quote the basic allegations petitioner has made on habeas
corpus: (1) ―Had the DMV Records been presented at trial to prove that [p]etitioner was
not the owner of the car the proceedings would have been different and it would have
undermined confidence in the outcome of [p]etitioner‘s trial.‖ (2) ―The discovery and
inspection of those DMV records would have impeached the DA‘s statements that the car


                                               6
belonged to [p]etitioner.‖ (3) ―The evidence against [p]etitioner was not strong enough to
sustain confidence in the verdict.‖ (4) ―Petitioner was not even the person that
committed the crime.‖ (5) ―[A]t no time did [p]etitioner‘s counsel ask me where I was on
the day of the robbery this clearly violated my defense. [Citations.] [F]ailure of counsel
to investigate and present a defense is very problematic because it shows that counsel
‗abandoned a potentially fruitful avenue.‘ ‖ Based on these allegations, petitioner
requests an evidentiary hearing and a remand for a new trial.
       ―Because a petition for a writ of habeas corpus seeks to collaterally attack a
presumptively final criminal judgment, the petitioner bears a heavy burden initially to
plead sufficient grounds for relief. . . . ‗For purposes of collateral attack, all
presumptions favor the truth, accuracy, and fairness of the conviction and sentence;
defendant thus must undertake the burden of overturning them. Society‘s interest in the
finality of criminal proceedings so demands, and due process is not thereby offended.‘‖
(People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall), quoting People v. Gonzalez (1990)
51 Cal.3d 1179, 1260, original italics.)
       To satisfy this heavy initial burden of pleading adequate grounds for relief, the
habeas corpus petition must plead the facts with particularity and should ―include copies
of reasonably available documentary evidence supporting the claim, including pertinent
portions of trial transcripts and affidavits or declarations. [Citations.]‖ (Duvall, supra, 9
Cal.4th at p. 474; Younan v. Caruso (1996) 51 Cal.App.4th 401, 407 [―petitioner bears a
heavy burden to first plead sufficient grounds for relief, then prove them‖].) ―If . . . the
court finds the factual allegations, taken as true, establish a prima facie case for relief, the
court will issue an [order to show cause].‖ (Duvall, supra, 9 Cal.4th at p. 475.)
However, a habeas petition may be resolved by a summary denial of the petition when
the court determines the petitioner has not presented a prima facie case for relief. (Ibid.)
       The broad claims made by petitioner are inadequate to warrant any relief because
petitioner has failed to supply this court with any documentary evidence in support of his
claims. (Duvall, supra, 9 Cal.4th at p. 474.) ― ‗Conclusory allegations made without any
explanation of the basis for the allegations do not warrant relief, let alone an evidentiary


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hearing.‘ ‖ (Ibid., quoting People v. Karis (1988) 46 Cal.3d 612, 656 (Karis).)
Furthermore, proof of a petition‘s allegations must be a demonstrative reality and not
merely speculative. (Ibid.) Accordingly, petitioner has failed to state a prima facie case
for habeas corpus relief.
                                            IV.
                                     DISPOSITION
       The judgment is affirmed. The petitions are denied.




                                                  _________________________
                                                  RUVOLO, P. J.


We concur:


_________________________
REARDON, J.


_________________________
RIVERA, J.




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