Opinion
A152128
06-14-2018
THE PEOPLE, Plaintiff and Respondent, v. KEVIN EARL HOLMES, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Marin County Super. Ct. No. SC199495A)
A jury convicted Kevin Earl Holmes of petty theft. (Pen. Code, § 666, subd. (a).) The court found Holmes suffered a prior conviction that required him to register as a sex offender (§ 290, subd. (c)), and the conviction qualified as a "strike" (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)), and a "super strike" conviction (§ 667, subd. (e)(2)(C)(iv)). The court sentenced Holmes to six years in prison. Having reviewed the record as required by People v. Wende (1979) 25 Cal.3d 436 (Wende), we find no arguable appellate issue and affirm.
All undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Holmes with the crime of petty theft with prior theft-related convictions (§ 666, subd. (a)). After a preliminary hearing, the court held Holmes to answer. The information alleged Holmes had four prior convictions for burglary (§ 459), and two prior theft convictions (§ 666). It was further alleged Holmes had a prior conviction for an offense requiring registration as a sex offender (§ 290, subd. (c)), and a "strike" conviction for a serious or violent felony (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1)), which also qualified as a "super strike" (§ 667, subd. (e)(2)(C)(iv)). It was further alleged Holmes had two prison priors (§ 667.5, subd. (b)), and 10 prior felony convictions.
Before trial, Holmes moved the court to strike his prior strike conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). After considering the nature of the alleged current offense, as well as Holmes' background, character, and prospects, the court denied his Romero motion. To preclude the jury from learning of his prior convictions, Holmes stipulated he suffered six prior convictions for theft and burglary. The court bifurcated the trial for the remaining prior conviction allegations, and Holmes waived his right to a jury trial regarding those allegations.
At trial, the parties presented the following evidence:
On November 26, 2016, the victim was shopping at the Terra Linda Safeway store in Marin County. She used a tote bag as her purse, and it contained her wallet, checkbook, cellphone, and other items. Inside her wallet, she had $365, credit cards, business cards, and her driver's license. While in the store, the victim put her tote bag and some grocery bags in the baby seat of her shopping cart.
When the victim bent down to retrieve items from a low shelf, she heard a "rustling" sound, and, when she turned, she saw "the back of a person walking away quickly." She described the person as an African-American man, who wore a white Dallas Cowboys t-shirt, a lanyard around his neck, and jeans. The victim immediately checked her purse and discovered her wallet was missing. The victim made an in-court identification of Holmes as the person she saw in the store.
When the victim reported the theft to staff, she provided a description of the person who may have stolen her wallet. An assistant store manager reviewed the store's surveillance video for a person matching the description. When he showed the victim a still image of a person from the surveillance video, the victim stated "that's my wallet."
The court admitted the statement as a spontaneous declaration. (Evid. Code, § 1240). --------
Later the same day, the victim's wallet was found on the side of a road in Terra Linda. It was returned to her, but it was missing the money, her driver's license, and her debit card. The victim's driver's license was found on a bike path in Terra Linda and returned to her.
One week later, on December 2, 2016, an officer of the San Rafael Police Department interviewed Holmes at his residence in San Rafael. Holmes acknowledged he had been to the Terra Linda Safeway store a week earlier, and that he was wearing a Dallas Cowboys football jersey at the time. Holmes was arrested. The detective who searched Holmes' residence and car did not find any items belonging to the victim.
During Holmes' trial, defense counsel requested a mistrial based on an officer's statement that Holmes had gone to multiple Safeway stores on the day of the theft. The court sustained an objection to the statement as nonresponsive, but denied the request for a mistrial, concluding the statement did not prejudice Holmes because the officer's testimony did not come into evidence as part of an argument that Holmes was "trolling for victims at Safeways."
After the victim's testimony, the court received a note from a juror stating she knew the victim, who exercised at her husband's gym. Outside the presence of the other jurors, the court discussed the matter with the juror and counsel, and denied defense counsel's request to remove the juror, finding her contact with and knowledge of the victim was "extremely limited."
The jury found Holmes guilty of committing theft on November 26, 2016, as alleged in count 1 of the information. The court held a bifurcated trial on Holmes' prior convictions. The court found Holmes suffered a prior conviction for assault with intent to commit rape (§ 220), which required him to register as a sex offender (§ 290, subd. (c)), and the court found this prior conviction was a "strike" (§§ 667, subd. (d)(i), 1170.12, subd. (b)(i), and a "super strike." (§ 667, subd. (e)(2)(C)(iv)). The court also found Holmes suffered a prior separate prison term (§ 667.5, subd. (b)).
At sentencing, the court denied Holmes' motion for the court to reconsider its Romero ruling, finding Holmes fell within the spirit of the three strikes law. Because the circumstances in aggravation outweighed the circumstances in mitigation, the court sentenced Holmes to the upper term of three years (§ 18, subd. (a); Cal. Rules of Court, rule 4.420), and the court doubled the sentence to six years for his prior strike (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). The court exercised its discretion to strike Holmes' prison prior. Holmes had credits of 489 days, and the court imposed various fines.
DISCUSSION
Holmes appeals. His appointed counsel filed an opening brief requesting this court to review the record to determine whether there are any arguable issues. Counsel informed Holmes he had the right to file a supplemental brief on his own behalf. Holmes did not do so.
We have reviewed the record pursuant to Wende and find no reasonably arguable appellate issue.
DISPOSITION
The judgment is affirmed.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.