People v. Holbert CA3

Filed 6/18/14 P. v. Holbert CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C073721

Plaintiff and Respondent, (Super. Ct. No. 12F04487)

v.

NICHOLAS RYAN HOLBERT,

Defendant and Appellant.

Defendant Nicholas Ryan Holbert appeals his convictions for identity theft, using a false identity to gain goods and services, being a felon in possession of a firearm, and illegally possessing ammunition. He contends the trial court erred in denying his motion to dismiss the information for multiple prosecutions under Kellett v. Superior Court (1966) 63 Cal.2d 822 (Kellett). We disagree and affirm the judgment. BACKGROUND On June 13, 2012, Sacramento County Sheriff’s Deputies Robert French and Sean Berry conducted a stop of defendant’s vehicle. Defendant falsely identified himself to

1

the officers as Bobbie Eberly. The officers learned Bobbie Eberly was on probation and conducted a probation search. In the course of the search, the officers found a nine- millimeter semiautomatic firearm, a black plastic bag containing an unloaded replica .44- caliber revolver, and nineteen .38-caliber bullets. In the trunk of the car were copies of checks, medical records from a dental office that included the personal information of at least 10 different people, identifying information for at least eight different people, and a laptop computer. Defendant was arrested for providing an officer with a false name. Deputy French gave the items to Detective Albert Kirby of the sheriff’s department high tech crimes unit. Detective Kirby and Detective Sean Smith spoke with seven of the people whose information and property was found in the trunk of the car and they indicated they did not know defendant and he did not have permission to have that information. After hearing a recorded jail phone call, Deputy Berry obtained a search warrant and retrieved another firearm from the car, a loaded .38-caliber revolver. On June 15, 2012, a complaint charged defendant with falsely indentifying himself to a police officer to evade proper identification. (Pen. Code, § 148.9, subd. (a).)1 Defendant pleaded no contest. He was sentenced to 45 days in county jail and granted three years of informal probation. On July 2, 2012, the district attorney filed a felony complaint charging defendant with two counts of unlawful possession of a firearm. (§ 29800, subd. (a)(1).) Ultimately, the district attorney, on January 24, 2013, charged defendant by amended information with three counts of unlawful possession of a firearm (§ 29800, subd. (a)(1)), two counts of unlawful possession of ammunition (former § 12316, subd. (b)(1)), 10 counts of unlawful acquisition and retention of personal identifying information (§ 530.5, subd. (b)(2)), and one count each of receiving stolen property (§ 496, subd. (a)), unlawful