P. v. Holmes

Filed 6/25/07 P. v. Holmes CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Albert Lee Holmes (Holmes) appeals from a judgment entered following his plea of no contest. His court-appointed counsel has filed a brief seeking our independent review of the record, pursuant to People v. Wende (1979) 25 Cal.3d 436 (see also Anders v. California (1967) 386 U.S. 738), in order to determine whether there is any arguable issue on appeal. We find no arguable issue and affirm.

I. FACTS AND PROCEDURAL HISTORY

A complaint was filed in Contra Costa Superior Court on April 18, 2006, charging Holmes with felony stalking from January 18, 2006, through February 7, 2006 (Pen. Code,  646.9, subd. (a)), felony stalking of the same victim while subject to a restraining order, from February 7, 2006, through March 31, 2006 ( 646.9, subd. (b)), and misdemeanor violation of a court order from January 31, 2006, through March 31, 2006 ( 273.6, subd. (a)).^[1] As to the first two counts, it was further alleged that Holmes committed at least one of the offenses against the victim in Contra Costa County. (See  784.7, subd. (b).)

The underlying events were described in the probation officers report of April 26, 2006. According to the report, Holmes and his victim were in a relationship for over a year until the victim ended it on January 18, 2006. Holmes bizarre behavior then escalated. From January 19, 2006, through March 2006, he telephoned the victim over 900 times, contacted the fathers of her sons and threatened her with death, contacted her friends and parents, and wrote letters to her employers containing false allegations of illegal behavior on her part. He also changed her cellular telephone service without her consent, parked within view of her residence, telephoned her and said he knew what she was doing and what car she was driving, and once acted as if he was going to shoot her. The victim feared for her life and the lives of her children and took a leave of absence from her work due to stress. When Holmes was arrested on March 17, 2006, police found a tote bag containing various medications, a pair of handcuffs, a small baseball bat, and a survival knife in his car.

Holmes told police that it was the victim who was contacting and harassing him. He advised the police that he was a voter and into politics, and when the restraining orders were lifted he wanted the right to bear arms.

The police report of the incident referenced multiple restraining orders that had been issued against Holmes, which protected the victim or other victims in two prior instances. Holmes had previously been granted diversion on a battery charge.

On May 10, 2006, while represented by his attorney, Holmes signed and initialed an ADVISEMENT OF RIGHTS, WAIVER AND PLEA FORM (Plea Form). In the Plea Form, he pled no contest to count two of the complaint, felony stalking with a restraining order ( 646.9, subd. (b)). He acknowledged his understanding that the legal maximum state prison sentence for the charge to which he was pleading was four years, that his sentence to state prison would be two years, suspended, and that he would be placed on felony probation for three years. (See  646.9, subd. (b).) He also indicated that he understood the specified constitutional rights he was waiving as well as the consequences of his plea. In addition, Holmes initialed his acknowledgement that he read, discussed with [his] attorney and [understood] all allegations in the complaint/information/indictment filed against him. He further initialed his agreement that Except for what is promised to me in open court ON THE RECORD I have not been promised or offered anything by anyone (including my attorney) that causes me to enter a guilty/no contest plea. (Bold in original.) His attorney represented that she had reviewed the Plea Form with Holmes, explained his rights to him, and answered all of his questions.

At the plea hearing on May 10, 2006, Holmess attorney summarized the terms of the plea agreement for the court. The court then engaged Holmes in the following conversation: THE COURT: Im showing you this . . . white form called Advisement of Rights, Waiver and Plea Form. [] Did you initial and sign this form? [] THE DEFENDANT: Yes. [] THE COURT: Did you read and understand its contents? [] THE DEFENDANT: Yes. [] THE COURT: Did you put in these initials to show that you read and understood each corresponding paragraph? [] THE DEFENDANT: Yes. [] THE COURT: Did you sign it on the back on page four? [] THE DEFENDANT: Yes. [] THE COURT: Did you have enough time to discuss all of this information with your attorney, Ms. Gin? [] THE DEFENDANT: Yes.

The court and counsel next confirmed that, pursuant to the plea agreement, Holmes would be sentenced to the statutory low term of two years. The court asked Holmes: Do you have any remaining questions about entering a plea in this matter? Holmes responded: No. The court then inquired: And are you entering this plea freely and voluntarily because this is how you want to take care of your case today? Holmes replied: Correct. Holmes thereafter entered his plea of no contest, and the court found that he expressly, knowingly, understandingly and intelligently waived his constitutional rights and that the plea was freely and voluntarily made with an understanding of the nature and consequences thereof.

The court sentenced Holmes pursuant to the plea agreement: imposing the low term of two years state prison, suspending execution of that sentence and placing him on three years of formal supervised probation with specified conditions, and ordering a $200 restitution fine, $20 court security fee, $400 as a domestic violence fine, and a $200 probation revocation fine that was suspended unless probation is revoked. The court imposed restraining orders with respect to the victim and her children. The court then concluded: THE COURT: Okay. Mr. Holmes, do you understand the terms and conditions of your probation? [] THE DEFENDANT: Yes. [] THE COURT: Do you agree to accept them? [] THE DEFENDANT: Yes.

A few weeks later, Holmes submitted to the court a handwritten document dated June 30, 2006, requesting a certificate of probable cause on the ground that his attorney did not explain anything to [him] about the charges or any stipulation in his case, that he was not given a chance to understand or negotiate this case, and that he was rushed to make a decision under stress. He contended that his defense attorney had not provided effective assistance of counsel. The request was not signed under penalty of perjury. (See  1237.5.)

Holmes filed a notice of appeal dated July 6, 2006, along with a formal application under penalty of perjury for a certificate of probable cause. ( 1237.5.) The request for a certificate of probable cause was submitted on the same grounds as his handwritten request, and it contended that Holmes was denied effective assistance of counsel. The trial court denied the request on July 20, 2006.

This appeal followed.

II. DISCUSSION

Holmess appellate counsel has represented that he has advised Holmes of his opportunity to file a supplementary brief with the court within 30 days and to request the court to relieve counsel from representation if he so desires. This court has not received such a request or supplemental written argument from appellant.

We find no arguable issues on appeal. There are no legal issues that require further briefing.

III. DISPOSITION

The judgment is affirmed.

NEEDHAM, J.

We concur.

JONES, P. J.

SIMONS, J.

^[1] Unless otherwise indicated, all statutory references are to the Penal Code.