People v. Hola CA3

Filed 6/29/23 P. v. Hola CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C096716

Plaintiff and Respondent, (Super. Ct. No. 15F07862)

v.

CHARLIE HOLA,

Defendant and Appellant.

In a prior appeal by defendant Charlie Hola, a panel of this court reversed his second degree murder conviction but affirmed convictions for other offenses he committed when he was 19 years old. On remand, the trial court resentenced defendant to an aggregate felony sentence of eight years, which included the upper term for robbery. In this appeal, defendant argues the trial court (1) abused its discretion by imposing the upper term because recent legislation created a presumption for the lower term when a defendant was under the age of 26 at the time of his crime, and (2) abused its

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discretion by denying defense counsel’s request to continue the resentencing hearing, because defense counsel was not adequately prepared. We affirm. BACKGROUND The underlying facts of the crimes defendant committed when he was 19 years old are largely immaterial to the issues raised on appeal. Simply put, in April 2018, a jury found defendant guilty of second degree murder (§ 187, subd. (a)); found the crime was committed for the benefit of, or in association with, a criminal street gang (§ 186.22, subd. (b)(1)); and found that defendant was a principal in an offense in which a principal personally discharged a firearm causing death (§ 12022.53, subds. (d), (e)(1)). The jury also found defendant guilty of two second degree robbery counts (§ 211) with firearm enhancements (§ 12022, subd. (a)(1)), possessing a firearm as a felon (§ 29800, subd. (a)), and misdemeanor taking or driving a vehicle (Veh. Code, § 10851, subd. (a)). (People v. Hola (2022) 77 Cal.App.5th 362, 368-369 (Hola).) In a prior appeal, a panel of this court reversed defendant’s second degree murder conviction and vacated the associated enhancements in light of recent legislation prohibiting murder convictions based on the natural and probable consequences doctrine and permitting criminal defendants to challenge on direct appeal the infirmity of such convictions. (Hola, supra, 77 Cal.App.5th at pp. 368-370, 376-377.) The panel remanded the matter to the trial court to permit the People to decide whether to retry defendant on the second degree murder charge and associated enhancements, and affirmed the judgment in all other respects. (Id. at p. 377.) On remand in July 2022, the prosecutor declined to retry defendant, and asked the trial court to impose an upper term sentence on one of the robbery offenses. Defense counsel argued “[t]here is a presumption of low term” for offenses committed by “those that are under 26 years old, pursuant to [section] 1170[, subdivision] (b)(6)(B).” Defense counsel also explained that he had not had a chance to review the probation report and previously had asked for another week to prepare for resentencing.