People v. Holmes CA3

Filed 11/29/21 P. v. Holmes CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091586

Plaintiff and Respondent, (Super. Ct. No. 19FE018565)

v.

CLARENCE AUSTIN HOLMES,

Defendant and Appellant.

Appointed counsel for defendant Clarence Austin Holmes filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Having reviewed the record as required by Wende, we will modify the judgment to correct the erroneous imposition of restitution fines per count. Finding no other arguable errors that are favorable to defendant, we will affirm the judgment as modified.

1

FACTUAL AND PROCEDURAL BACKGROUND The People’s amended felony information charged defendant with assault with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count one);1 possession of methamphetamine and heroin in jail (§ 4573.6; count two); and resisting, delaying, or obstructing peace officers (§ 148, subd. (a)(1); count three). The matter was tried to a jury, which was unable to reach a verdict as to the assault, but found defendant guilty of the possession and resisting counts. Thereafter, the People’s request to dismiss the assault count in the interest of justice was granted. Given the jury verdict, the court determined defendant had violated probation in another matter and revoked that probation, sending both matters to probation for the preparation of a sentencing recommendation. According to the probation report, defendant had been driving a stolen car when the authorities attempted to detain him. Defendant ignored their commands and fled on foot, hiding in a nearby apartment complex. He was arrested after an altercation with the victim from the dismissed count. Defendant then discarded a bindle of cocaine while being processed into jail. He was then strip searched, at which time authorities discovered a plastic bag containing bindles of cocaine, methamphetamine, and heroin. At the sentencing hearing, the court denied defendant’s request for probation and, after giving its reasons, sentenced him to the upper term of four years on count two, with two years of that sentence to be served on mandatory supervision. For count three, the court imposed 134 days to run concurrent to count two. Defendant received 134 days’ actual credit plus 134 days’ conduct credit for a total of 268 days’ custody credit. The court also imposed a $300 restitution fine for count two (§ 1202.4, subd. (b)), a matching suspended $300 parole revocation restitution fine (§ 1202.45), and a $150 restitution fine