People v. Nichols CA3 ( 2021 )

Filed 9/17/21 P. v. Nichols 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
THE PEOPLE, C092439
Plaintiff and Respondent, (Super. Ct. No. 19CF00755)
v.
GARRISON J. NICHOLS,
Defendant and Appellant.
Defendant Garrison J. Nichols pled no contest to one count of committing a lewd
or lascivious act on a child under 14. The trial court denied probation and sentenced
defendant to the upper term of eight years in state prison. On appeal, defendant contends
the court abused its discretion in denying his request for probation and sentencing him to
the upper term. We find no abuse of discretion and affirm the judgment.
I. BACKGROUND
Defendant began dating E.S., the mother of six-year-old Jane Doe, and moved into
the home with E.S., Jane Doe, and her brother. The children called defendant, “Daddy
Gary.” Several months after defendant moved in, Jane Doe reported to E.S. that
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defendant wanted her to put her mouth on his penis. E.S. told her that was bad and not to
say such things. Jane Doe responded, “ ‘I couldn’t keep it a secret anymore, but daddy
asked me to.’ ” While Jane Doe’s mother and brother were sleeping, defendant lured her
to put her mouth on his penis by telling her it would give her milk. Jane Doe said she put
her mouth on defendant’s penis as he instructed. E.S. confronted defendant; he denied
the allegation and begged E.S. not to report it to the police. He then fled. Jane Doe
reported multiple similar incidents of defendant touching or attempting to touch her
inappropriately.
The district attorney filed an amended complaint charging defendant in count 1
with oral copulation or sexual penetration with a child under the age of 10 (Pen. Code,1
§ 288.7, subd. (b)), and in count 2 with committing a lewd or lascivious act on a child
under the age of 14 (§ 288, subd. (a)). Defendant pled no contest to count 2. In
exchange, count 1 was dismissed with a waiver pursuant to People v. Harvey (1979)
25 Cal.3d 754, 758. The trial court ordered a psychological examination of defendant,
pursuant to sections 288.1 and 1203.067.
The prosecutor filed a sentencing statement in aggravation and cited no factors in
mitigation. Attached was a victim impact statement that E.S. provided, detailing the
trauma defendant inflicted on Jane Doe. In response, the defense filed a sentencing
statement in mitigation, arguing for probation. Attached were letters in support of
defendant and a report that he had a Static-99R risk assessment score of 2, with an
average risk for sexual offense recidivism. At the sentencing hearing, the trial court
issued a tentative ruling to deny probation and impose the upper term. The court noted it
had read and considered the probation report with a confidential attachment; the
prosecutor’s statement in aggravation; defense counsel’s statement in mitigation,
including attachments; and a psychiatric evaluation pursuant to section 288.1. The
1 Undesignated statutory references are to the Penal Code.
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probation report recommended the middle term. Defendant’s father requested that he be
placed on probation. Defendant made a statement that it was difficult for him not to go to
trial to prove his innocence and asked for a chance for probation. He continued to
proclaim his innocence after his plea.
Defense counsel argued that defendant’s crime was an isolated incident
and cited the psychiatric evaluation, which noted that denial of the offense is not
necessarily a risk factor for recidivism. Defense counsel argued that the psychiatric
report noted factors that indicated defendant would successfully respond to sex offender
treatment and posed a minimal risk to Jane Doe or for recidivism. Defense counsel
requested a low-term sentence in the event probation was denied.
The trial court denied defendant’s request for probation and sentenced him to the
upper term of eight years in state prison. The trial court found that because defendant
had previously suffered two felony convictions, he was statutorily ineligible for probation
pursuant to section 1203, subdivision (e)(4), absent a finding that this was an “unusual
case” in which the interest of justice would be served in granting probation. The court
found that defendant failed to meet criteria for an unusual case under California Rules of
Court, rule 4.413. The trial court further reasoned: “The Court has carefully considered
in this case a grant of probation for a number of reasons in this case. The Court,
however, continuously goes back to the nature of the charges in this case; the statements
made by the young victim . . . and the graphic nature of the statements made by the
victim are difficult in this case to ignore. [¶] And for that reason, even if the defendant
were not statutorily ineligible for probation, probation would be denied; and that will be
due to the nature, the seriousness, and the circumstances in this case which is considered
more egregious than circumstances, other circumstances of cases involving similar
charges. Additionally in this case, the victim was particularly vulnerable. Additionally,
the defendant betrayed a position of trust that had developed between himself and the six-
year-old victim.” In imposing the upper term, the court found that the balance of factors
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in aggregation outweighed those in mitigation. Specifically, the court considered that the
victim was “particularly vulnerable,” “the manner in which the crime was committed
indicate[d] planning and some sophistication,” and “defendant took advantage of a
position of trust or confidence.” In mitigation, the court noted defendant had a minimal
prior criminal record and his prior performance on probation was satisfactory.
Defendant filed a timely notice of appeal and requested but did not obtain a
certificate of probable cause.
II. DISCUSSION
A. Denial of Probation
Defendant contends the trial court abused its discretion in denying his request for
probation. He recognizes that he was ineligible for probation unless the court found
unusual circumstances but argues such circumstances are present here. We disagree.
“Except in unusual cases where the interests of justice would best be served if the
person is granted probation, probation shall not be granted to . . . [¶] . . . [¶] [a]ny person
who has been previously convicted twice in this state of a felony or in any other place of
a public offense which, if committed in this state, would have been punishable as a
felony.” (§ 1203, subd. (e)(4).) California Rules of Court, rule 4.413(c) sets forth the
factors which may indicate an “unusual case” in which probation may be granted. One
such factor is where there is a circumstance, not amounting to a defense, that reduces the
defendant’s culpability, including: (1) there was a great provocation, coercion, or duress
and the defendant has no record of committing crimes of violence; (2) the crime was
committed because of a reduced mental condition not amounting to a defense; or (3) the
defendant is youthful or aged and has no significant record of prior criminal offenses.
(Cal. Rules of Court, rule 4.413(c)(2).) These factors are indicators the trial court may
use to find the case unusual, but it is not required to do so. (People v. Stuart (2007)
156 Cal.App.4th 165, 178 (Stuart).) If the court determines presumptive ineligibility is
overcome, that is not the end of the inquiry; the court must still decide whether to grant
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probation based on the criteria in California Rules of Court, rule 4.414. (Stuart, supra, at
p. 178.)
The defendant bears a heavy burden when attempting to show an abuse of
discretion. (People v. Aubrey (1998) 65 Cal.App.4th 279, 282.) “In reviewing [a trial
court’s determination whether to grant or deny probation,] it is not our function to
substitute our judgment for that of the trial court. Our function is to determine whether
the trial court’s order granting [or denying] probation is arbitrary or capricious or exceeds
the bounds of reason considering all the facts and circumstances.” (People v. Superior
Court (Du) (1992) 5 Cal.App.4th 822, 825 (Du).)
Here, defendant claims the trial court erred in denying him probation but does not
explain which of the factors overcoming presumptive ineligibility applies to him. Even if
the trial court erred in concluding that defendant’s case did not fall within any of the
“unusual case” factors, the court was not required to find presumptive ineligibility has
been overcome based on any one factor. (See Stuart, supra, 156 Cal.App.4th at p. 178
[The trial court may but is not required to find the case is unusual just because
circumstances listed in the rule have been established].) Further, defendant was not
prejudiced because the court expressly stated it would deny probation even if defendant
was eligible. Defendant asserts that the court’s finding that there was planning is not
supported by the record. We disagree. The stipulated factual basis for the plea and the
probation report reveal that defendant gained Jane Doe’s trust by quickly becoming a
father figure and took advantage of at least one time when he was left alone with Jane
Doe and lured her with a claim he was going to give her milk. This was evidence of
planning, and the court was well within its discretion to deny probation based on the
seriousness and manner of the offense, even if defendant was not presumptively
ineligible for probation. (See Cal. Rules of Court, rule 4.414(a)(1).) Accordingly,
defendant has failed to show the trial court’s decision was arbitrary, capricious, or
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exceeded the bounds of reason under the circumstances of this case. (See Du, supra,
5 Cal.App.4th at p. 825.)
B. Sentence Imposed
Defendant contends the trial court abused its discretion by imposing the upper
term. Specifically, he argues that the court improperly relied on aggravating factors that
were legally inapplicable and failed to consider a mitigating factor. We disagree.
A trial court’s sentencing decision is reviewed for abuse of discretion. (People v.
Sandoval (2007) 41 Cal.4th 825, 847.) A trial court’s choice to select an upper term is
permissible if it finds even one aggravating factor. (People v. Osband (1996) 13 Cal.4th
622, 728-729 (Osband).) “Aggravating circumstances include those listed in the
sentencing rules, as well as any facts ‘statutorily declared to be circumstances in
aggravation’ [citation] and any other facts that are ‘reasonably related to the decision
being made.’ ” (People v. Black (2007) 41 Cal.4th 799, 817.)
Here, the court imposed the upper term because it found the circumstances in
aggravation outweighed those in mitigation. The trial court noted several aggravating
factors relating to the crimes, including that defendant took advantage of a position of
trust or confidence to commit the crime, the vulnerability of the victim, and that the
manner in which the crimes were carried out demonstrated sophistication. (See Cal.
Rules of Court, rule 4.421, (a)(3), (8), (11).) Defendant contends that the court erred in
referencing the child victim’s young age, which he contends is not a proper aggravating
factor because it is an element of the crime itself. It is true that “[a] fact that is an
element of the crime on which punishment is being imposed may not be used to impose a
particular term.” (Cal. Rules of Court, rule 4.420(d).) However, the record shows the
trial court relied on several facts in aggravation, including that (1) “the victim was
particularly vulnerable,” (2) “the manner in which the crime was committed indicate[d]
planning and some sophistication,” and (3) that “defendant took advantage of a position
of trust or confidence.” As defendant concedes, any one of these aggravating factors is
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enough to deny probation. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1263
[“Only a single aggravating factor is required to impose the upper term”].) Defendant
contends there was no evidence of planning. For the reasons we have discussed ante, he
is incorrect. Defendant does not challenge the court’s finding that he took advantage of
the victim’s trust and confidence. Instead, he makes the meritless argument that “[t]his
was a one-time incident,” which is utterly contradicted by the stipulated factual basis for
the plea and the probation report, where Jane Doe recited multiple uncharged acts of
molestation perpetrated by defendant during the short period of a few months he was
living in her home. The court’s imposition of the upper term was permissible based on
any one of these aggravating factors. (See Osband, supra, 13 Cal.4th at pp. 728-729.)
In mitigation, the court found defendant had minimal prior criminal history and
had performed satisfactorily on his prior probation. Nonetheless, defendant argues the
aggravating factors cited by the court could not outweigh the mitigating factors, including
his minimal criminal record, the letters submitted on his behalf, his claim this was a “one-
time incident,” and the fact he received an average risk score on the Static-99R, which is
an actuarial measure of risk for sexual offense recidivism. We disagree. The court stated
it reviewed and considered all of these materials, heard argument, and listed the factors it
weighed in aggravation and mitigation. The trial court did not fail to give the mitigating
factors proper consideration. Rather, the court did not believe that all the mitigating
factors could mitigate the aggravating factors, such as the fact that he used that position
to find his victim and commit these crimes. There was no abuse of discretion.
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III. DISPOSITION
The judgment is affirmed.
/S/
RENNER, J.
We concur:
/S/
BLEASE, Acting P. J.
/S/
ROBIE, J.
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