People v. Holmes

SHINN, P. J.

Nathan Boyd Holmes was indicted under the name of Spurlock, as he was then known to the police, for the unlawful sale of heroin and following his conviction in a non-jury trial we reversed (Cal.App.) 2 Cal.Rptr. 518 and the Supreme Court reversed the judgment (54 Cal.2d 442 [5 Cal.Rptr. 871, 353 P.2d 583]) upon the ground that it was not shown by the record that Holmes had personally waived trial by jury. In a subsequent trial, Holmes was convicted in a jury trial. He admitted a former felony narcotic conviction, for which he had served a term in state prison. Upon his appeal from the judgment he applied for appointment of counsel on

[625]

the appeal. In accordance with our practice, and settled California law

(People

v.

Hyde,

51 Cal.2d 152 [331 P.2d 42]), we concluded from an independent examination of the record that the appeal was frivolous and denied the application. In accordance with our invariable rule in such cases, we considered and decided the appeal on the merits. The judgment was affirmed.

(People

v.

Holmes,

197 Cal.App.2d 699 [17 Cal.Rptr. 599].) Hearing was denied by the Supreme Court.

Pursuant to mandate of the Supreme Court of the United States, issued in accordance with the holding in

Douglas

v.

California,

372 U.S. 353 [83 S.Ct. 814, 9 L.Ed.2d 811], we recalled our remittitur, vacated the judgment and appointed counsel. Briefs have been filed. The appeal has no merit.

The point urged by counsel is the one that was decided adversely to defendant upon the second appeal. When défendant’s true name was ascertained the indictment was amended and in each place in which John Doe “Spurlock” appeared the clerk had written above it “T. N. Nathan Boyd Holmes.” We held that the use of “T. N.” instead of “True Name,” which should have been used was not an irregularity which deprived Holmes of a fair trial.