People v. Nolan CA2/2 ( 2021 )

Filed 4/29/21 P. v. Nolan CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B306447
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA033029)
v.
DEMPSEY NOLAN, JR.,
Defendant and Appellant.
THE COURT:
In 1997, Dempsey Nolan, Jr., (appellant) was charged with
first degree residential burglary (Pen. Code, § 459). The
information alleged that he had suffered two prior serious felony
convictions for first degree burglary within the meaning of Penal
Code sections 667, subdivisions (b) through (i) and 1170.12,
subdivisions (a) through (e). As alleged, the first prior conviction
occurred on January 10, 1989, in case No. A647353, and the
second prior conviction occurred on April 4, 1989, in case
No. A920347.
In 1998, appellant was convicted by a jury of the 1997
burglary charge. The trial court imposed a sentence of 25 years
to life under the “Three Strikes” law. Subsequently, the Court of
Appeal affirmed the conviction.
Appellant filed a petition for writ of habeas corpus. He
argued that he should be resentenced as a second-strike offender.
Per his petition, he entered a guilty plea in case No. A647353 on
January 10, 1989, pursuant to a plea agreement that was
designed to resolve case No. A647353 (first-degree burglary
charged in Compton), case No. 648728 (sexual battery charged in
Compton), and case No. A920347 (first degree-burglary charged
in Torrance). The agreed sentence was five years in state prison
for all three cases combined. Appellant was sentenced in case
No. A647353 on January 24, 1989. Then, on April 4, 1989, he
was sentenced to a concurrent four-year term in case
No. A920347. Appellant represented that he was not present on
April 4, 1989, he never entered a guilty plea in case No. A920347,
and he never waived his right to a jury trial and confrontation of
his accusers, and he never waived his right against self-
incrimination. As a result, he claimed that the prior serious
felony conviction in case No. A920347 was invalid and did not
support the third strike sentence.
The trial court denied the petition. In the minute order, it
stated, “[Appellant] asserts that the strike prior in case
[No.] A920347 could not be used to sentence [him] pursuant to
the Three Strikes law insofar as the legal record reflects that he
entered a not guilty plea on [October 25, 1988]. While this is
correct, the abstract of judgment reflects that he was
subsequently sentenced to [four] years in state prison on [April 4,
1989]. A common sense reading of the [appellant’s] exhibits
2
establish[es] that subsequent to his arraignment on [October 25,
1989], [he] changed his plea and was convicted of first degree
residential burglary in case [No.] A920347.”
Appellant now appeals.
DISCUSSION
Appointed counsel filed a brief stating that there are no
arguable issues and requesting that we follow the procedure in
People v. Serrano (2012) 211 Cal.App.4th 496. On January 8,
2021, we notified appellant of counsel’s no merit brief and
advised him that he had 30 days to file a supplemental brief or
letter stating any grounds for appeal. Appellant filed a
supplemental brief. As established in People v. Cole (2020) 52
Cal.App.5th 1023, 1039–1040, our sole task is to review the
arguments that he has raised.
He does not argue that the trial court erred. Rather, he
reargues his petition and asserts he is entitled to relief because
he did not enter a guilty plea in case No. A920347, he was not
present at a hearing on April 4, 1989, and, except for the abstract
of judgment, there is no record that case No. A920347 was
adjudicated. Because he has not shown prejudicial error, we
must affirm. (Cal. Const., art. VI, § 13.)
To be complete, we note that the trial court made a factual
finding that appellant changed his plea in case No. A920347 to
guilty and was convicted and sentenced accordingly. Impliedly,
appellant is challenging the sufficiency of the evidence to support
the trial court’s factual finding. When reviewing the sufficiency
of the evidence, we determine whether there is substantial
evidence, contradicted or uncontradicted, which will support the
trial court’s factual determinations. (Ermoian v. Desert Hospital
(2007) 152 Cal.App.4th 475, 501.) When he entered his plea in
3
case No. A647353, the prosecutor stated that under the terms of
the deal, appellant would be sentenced to four years in case
No. A647353 and a consecutive one-year sentence in the sexual
battery case, both of which were in Compton, and that the five-
year sentence would “be concurrent to the time he receives in
[case No. A920347 in Torrance], which would be no more than
five years.” The prosecutor explained that “in the next week or so
[appellant is] going to be pleading guilty to a residential burglary
in Torrance. And I believe the case number is 920347.” The trial
court asked if it would be “five years all around,” and the
prosecutor said that was correct. The prosecutor informed the
trial court that the deal had been explained to appellant
“downstairs,” at which point the prosecutor then asked appellant,
who was in court, if he understood the deal. Appellant said, “Yes
sir.” Appellant was sentenced in case No. A647353 and the
sexual battery case as agreed. The April 4, 1989, minute order in
case No. A920347 stated that the case was called for trial,
appellant and his attorney were present and waived the right to
trial, and appellant was sentenced to the mid-term of four years
in state prison. (The bottom portions of the two pages of the
minute order are cut off and therefore missing.) Finally, there is
an abstract of judgment showing that on April 4, 1989, appellant
was sentenced consistent with the minute order. Because this
evidence supported the trial court’s factual finding, and because
it was reasonable in nature, credible, and of solid value (ibid.), we
conclude that the record contained substantial evidence that
appellant changed his plea to guilty and was convicted in case
No. A920347.
4
DISPOSITION
The order denying appellant’s petition for writ of habeas
corpus is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
____________________________________________________________
LUI, P. J ASHMANN-GERST, J. HOFFSTADT, J.
5