People v. Holmes CA3

Filed 9/30/22 P. v. Holmes CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.

1

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