People v. Holmes CA5

Filed 6/18/21 P. v. Holmes CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F081154 Plaintiff and Respondent, (Kern Super. Ct. No. MF013738A) v.

KEVIN HOLMES, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and John R. Brownlee, Judges.† Kristin Traicoff, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo-

* Before Hill, P.J., Levy, J. and Detjen, J. †Judge Bush presided over the motion to suppress; Judge Brownlee presided over the trial and sentencing hearing.

INTRODUCTION Appellant and defendant Kevin Holmes was convicted of two counts of second degree commercial burglary and was sentenced to seven years four months in state prison. On appeal, his appellate counsel has filed a brief that summarizes the facts with citations to the record, raises no issues, and asks this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We affirm. FACTS At approximately 2:20 a.m. on November 21, 2018, the Tehachapi Police Department received a report of an alarm at Henry’s Café. Sergeant Funderburk responded to the dispatch with Officers Caudillo and McCombs, and they discovered one of the café’s doors had been pried open. The cash registers were open, and the cash drawers had been “ransacked.” An interior office door had also been pried open and the area ransacked. Kristie Wheeler, the café’s manager, arrived at the scene and provided the officers with the building’s surveillance video. The three officers watched the video, and it showed that two men approached the café’s exterior door, pried it open with some type of tool, entered the building, opened the cash registers, and took money and electronics. One of the men was wearing a sweater that said “Cali” in large print on the front. Ms. Wheeler testified the café was closed at the time of the burglary, and defendant did not have permission to be there. Around 3:00 a.m., as they were still investigating at the café, the officers received a dispatch about an alarm going off at Red House Barbeque (Red House), approximately one to two miles from Henry’s Café. Officer Caudillo testified it was unusual for burglar alarms to activate in succession in Tehachapi. Officer McCombs immediately left the café and drove to Red House. About a minute after Officer McCombs left the café, he was a few blocks from Red House and saw a silver sedan pull out of a parking lot about 20 feet from the