Opinion
B335220
08-30-2024
THE PEOPLE, Plaintiff and Respondent, v. ALONZO HOLLOWAY, Defendant and Appellant.
Alonzo Holloway, in pro. per.; and Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. J84488 Chet L. Taylor, Judge.
Alonzo Holloway, in pro. per.; and Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
EDMON, P. J.
Alonzo Holloway appeals from an order denying his "Petition for Vacatur Evidentiary Hearing Requested." His appellate counsel filed a brief under People v. Delgadillo (2022) 14 Cal.5th 216, and Holloway filed a supplemental brief. As we now explain, the trial court did not err in denying the petition.
In 1994, an information alleged that Holloway committed first degree murder (Pen. Code, § 187, subd. (a); count 1) and attempted second degree robbery (§§ 664, 211; count 2). As to the murder count, the information also alleged that Holloway personally used a gun (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)) and that he committed the murder while engaged in an attempted robbery (§ 190.2, subd. (a)(17)). After conviction by a jury, the trial court sentenced Holloway in 1995 to life without parole for the murder plus 10 years for the firearm enhancement and stayed the sentence on the attempted robbery count.
All further undesignated statutory references are to the Penal Code.
The record does not contain the verdict forms or a minute order reflecting the verdicts.
In August 2023, Holloway, in propria persona, filed a document titled, "Petition for Vacatur Evidentiary Hearing Requested." In the petition, Holloway said that different abstracts of judgments, judgments, and minute orders existed in his case. His judgment was therefore "defective" or "fraudulent," because the prison warden lacked authority to receive him without proper certified documents. Holloway further asserted that a sentencing error occurred on his firearm enhancement because 10 years was imposed but the sentencing range under section 12022.5 was three, four or five years.
On September 15, 2023, the trial court denied the petition, stating in its minute order, "Petitioner was previously sentenced and his appeal was affirmed in 1997. As an aside[,] the sentencing range for Penal Code section 12022.5(A) is 3, 4, or 10 years and was the sentencing range at the time of the commission of the offense." The trial court did not appoint counsel for Holloway or hold a hearing.
This appeal followed. Holloway's appellate counsel filed an opening brief that raised no issues and asked this court to independently review the record under People v. Delgadillo, supra, 14 Cal.5th 216. Holloway has submitted a supplemental brief that reiterates the arguments made in his petition. However, the record does not show any fraud or defect in the proceedings such that the prison warden had no authority to receive him. Rather, Holloway was sentenced on count 1 to life without parole for the murder, and the sentence on count 2 was stayed.
In his supplemental brief, Holloway also appears to claim that his appellate counsel provided ineffective assistance by not meticulously reviewing the case file and not pursuing issues. (See generally People v. Marsden (1970) 2 Cal.3d 118.) Holloway fails to show that his appellate counsel provided ineffective assistance. Moreover, his counsel is not required to raise issues that are not arguably meritorious. (People v. Lyons (2009) 178 Cal.App.4th 1355, 1359, fn. 1 [counsel is"' "captain of the ship" '" who decides what contentions are arguably meritorious].) Accordingly, Holloway fails to show appellate counsel has provided inadequate representation. Holloway otherwise fails to show that the trial court erred in denying his petition.
DISPOSITION
The order is affirmed.
We concur: ADAMS, J., BERSHON, J. [*]
[*] Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.