People v. Holmes CA3

Filed 11/2/22 P. v. Holmes CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C094576

Plaintiff and Respondent, (Super. Ct. No. 05F06126)

v. OPINION ON TRANSFER

JESSICA HOLMES,

Defendant and Appellant.

Defendant Jessica Holmes appeals the trial court’s order denying her petition for resentencing under Penal Code former section 1170.95 (now renumbered as section 1172.6 (Stats. 2022, ch. 58, § 10)); statutory section citations that follow are to the Penal Code) based on changes made to the felony-murder rule by Senate Bill No. 1437 (2017- 2018 Reg. Sess.) (Senate Bill 1437). Defendant contends the trial court erred by relying on the jury’s special circumstance finding to deny the petition. We filed an unpublished opinion on June 28, 2022, affirming the trial court’s order. Our Supreme Court granted review of the matter on September 28, 2022, and

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transferred the case to us with directions to vacate our previous decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). Defendant submitted supplemental briefing arguing the case should be remanded to the trial court; the People did not file a supplemental brief. We will reverse the trial court’s order and remand the matter for further proceedings.

FACTS AND HISTORY OF THE PROCEEDINGS

On our own motion, we take judicial notice of the opinion deciding defendant’s direct appeal to provide basic factual context. (Evid. Code, § 452, subd. (d).) Over the course of two weeks in 2005, defendant, along with codefendants Joseph Terrell Johnson and Corey Schroeder, “robbed or attempted to rob at least five gas stations in the Sacramento area.” (People v. Johnson et al. (2010) 183 Cal.App.4th 253, 261.) In one of the attempts, Johnson shot and killed the victim, a gas station employee. (Id. at pp. 267- 269.) A jury found defendant guilty of murder (§ 187, subd. (a)), attempted robbery (§§ 211, 664), and found true an allegation that the murder occurred in the commission of the attempted robbery (§ 190.2, subd. (a)(17)). The jury also found defendant guilty of three other counts of robbery and one count of attempted robbery, and found true firearm enhancement allegations as to all counts (§ 12022, subd. (a)(1)). On appeal, we affirmed the convictions, modified defendant’s custody credits, and corrected the abstract of judgment. (Johnson et al., at p. 301.)