People v. Holmes CA3 ( 2022 )

Filed 9/30/22 P. v. Holmes CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C095635
Plaintiff and Respondent, (Super. Ct. No. 21FE008679)
v.
AARON HOLMES,
Defendant and Appellant.
Appointed counsel for defendant Aaron Holmes has filed an opening brief setting
forth the facts of the case and asking this court to review the record to determine whether
there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.)
Although we find no arguable error in defendant’s favor, we will modify the judgment to
correct a sentencing error and affirm the judgment as modified.
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FACTUAL AND PROCEDURAL BACKGROUND
Between 2004 and 2011, defendant was convicted of four misdemeanor offenses
and one felony offense. Defendant’s felony conviction was for violating Penal Code
section 273.5, subdivision (a).1 He struck his girlfriend in the face five times with a
closed fist. In 2012, defendant was convicted of violating section 288, subdivision (a),
for sexually assaulting a 13-year-old girl who was more than 10 years younger than he.
In May 2021, while defendant was on parole, peace officers found guns and
ammunition in his car. A complaint filed that month alleged defendant was a felon in
possession of a firearm (§ 29800, subdivision (a)(1); count one); was a person prohibited
from owning a firearm who possessed ammunition (§ 30305, subd. (a)(1); count two);
and carried a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count three). The
complaint also alleged defendant’s section 288, subdivision (a) conviction was a serious
felony for purposes of California’s three strikes law. (§§ 667, subds. (b)-(i) & 1170.12.)
In January 2022, defendant filed a motion to dismiss the prior strike under section
1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court
denied the Romero motion, explaining, “the prior strike [was] not that remote,” as
defendant had “been out” of prison “for a few years” when he committed the instant
offenses. And while the instant case was “not the worst in the world,” it also was “not
the best.”
The trial court continued: “You know, there’s two guns, some additional
ammunition. They are both in locations where, you know, clearly they could be
offensive or defensive use in a motor vehicle. So -- and that’s not a good sign. [¶] The
other thing [was] [defendant] ha[d] some domestic violence history, which is problematic
as well.” “And then finally . . . the [section 288(a)] victim was 13 and [defendant] was
1 Undesignated statutory references are to the Penal Code.
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right around 27. So it’s not like he was an 18-year-old kid. [¶] So when you put that all
together. . . . I’m going to exercise my discretion under Romero . . . so it’s denied.”
Later, defendant pleaded no contest to all three counts and admitted the prior
strike. The trial court sentenced defendant to 32 months in state prison for count one (the
low term, doubled for the prior strike) and stayed the sentences for counts two and three
(§ 654) without pronouncing sentence on those counts. Minute orders reflect the trial
court sentenced defendant to 32 months for the other two offenses as well. The abstract
of judgment reflects only that terms for counts two and three were stayed.
Defendant filed a notice of appeal challenging only the denial of the Romero
motion. He did not request a certificate of probable cause.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening
brief that sets forth the facts and procedural history of the case and requests this court to
review the record and determine whether there are any arguable issues on appeal.
(People v. Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of his right
to file a supplemental brief within 30 days from the date the opening brief was filed.
More than 30 days have elapsed, and defendant has not filed a supplemental brief.
Our review of the record pursuant to Wende has disclosed no arguable errors in
defendant’s favor. However, we note an error in pronouncing sentence that must be
corrected. “A sentence must be imposed on each count, otherwise if the nonstayed
sentence is vacated, either on appeal or in a collateral attack on the judgment, no valid
sentence will remain.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1469.)
Accordingly, the trial court was required to impose sentence on counts two and three.
Because it is clear from the trial court’s discussions with the parties as well as the
minute order that the court intended to sentence defendant to the same sentence on all
counts and stay execution of two of those sentences, we will modify the judgment to do
so. (See People v. Alford, supra, 180 Cal.App.4th . at p. 1473 [modifying the judgment
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on appeal consistent with how the trial court “undoubtedly . . . would have” sentenced
defendant, given the “futility and expense of” remanding for a new sentencing hearing].)
We impose sentences of 32 months for count two and 32 months for count three
(the lower term for each, doubled for the prior strike). Per the previous order of the trial
court, which we do not disturb, those sentences are stayed.
DISPOSITION
The judgment is modified to impose stayed sentences of 32 months in state prison
on counts two and three. The trial court is directed to prepare an amended abstract of
judgment and forward a certified copy to the Department of Corrections and
Rehabilitation. As modified, the judgment is affirmed.
/s/
Duarte, Acting P. J.
We concur:
/s/
Renner, J.
/s/
Earl, J.
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