People v. Nunally CA2/1 ( 2023 )

Filed 7/27/23 P. v. Nunally CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE, B318340
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA249053)
v.
JAMAR CORNELL NUNALLY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Michael E. Pastor, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
____________________________
Jamar Cornell Nunally appeals from the order denying his
resentencing petition under Penal Code1 former section 1170.95,
now section 1172.6. We affirm.
In 2003, during a carjacking perpetrated by Nunally and
Dane Woodsen, Woodsen shot and killed the carjacking victim.
Nunally was charged with special circumstances murder,
carjacking, and conspiracy. He pleaded guilty to second degree
murder. On May 1, 2006, the trial court sentenced him to
15 years to life for the murder and dismissed the other counts in
the interest of justice. We affirmed the judgment.
On April 12, 2019, Nunally filed a petition for resentencing
under former section 1170.95, contending his conviction under a
felony murder theory was invalid because he was not the actual
killer, and did not act with intent to kill or reckless indifference
to human life.
The trial court appointed counsel, received briefing, and
held an evidentiary hearing. The court found beyond a
reasonable doubt Nunally was a major participant in the
carjacking and acted with reckless indifference to human life, and
therefore was ineligible for resentencing.
Nunally appealed and we appointed counsel. Appellate
counsel filed a brief pursuant to People v. Delgadillo (2022)
14 Cal.5th 216 (Delgadillo) stating counsel found no arguable
issues. We notified Nunally of his right to file a supplemental
brief, and he did so.
Under Delgadillo, we do not have to review independently
the entire record to identify unraised issues, but we must
evaluate arguments relating to the postconviction ruling on
1 Unspecified statutory citations are to the Penal Code.
2
appeal raised in any supplemental brief filed by the defendant.
(Supra, 14 Cal.5th at p. 232.)
In his supplemental brief, Nunally raises the following
challenges to the evidence and argument at the evidentiary
hearing. First, he claims the district attorney violated the federal
Health Insurance Portability and Accountability Act of 1996
(42 U.S.C. § 1320d et seq.; HIPAA) by introducing Nunally’s
criminal risk assessment. Second, he claims the Fifth
Amendment of the United States Constitution barred admission
of Nunally’s statements during a parole eligibility hearing.
Third, he claims the district attorney breached Nunally’s plea
agreement by arguing at the evidentiary hearing that Nunally
was a knowing and willing participant in the murder, when the
district attorney had agreed years earlier as part of the plea
agreement to strike those terms from the factual basis of
Nunally’s plea. Fourth, he argues his counsel at the evidentiary
hearing was ineffective to the extent counsel failed to object on
any of the above bases.
It appears Nunally’s first three contentions are forfeited for
failure to raise them below. Given his claim of ineffective
assistance of counsel, we nonetheless address them on the merits.
Nunally cites no authority that information protected by
HIPAA cannot be introduced in a criminal or postconviction
proceeding. HIPAA imposes civil and criminal penalties for the
unauthorized disclosure of medical information, but does not
contain a suppression remedy. (Y.C. v. Superior Court (2021)
72 Cal.App.5th 241, 255, 257.) We express no opinion whether
introduction of the criminal risk assessment violated HIPAA.
There is no Fifth Amendment right against self-
incrimination in a postconviction proceeding under former
3
section 1170.95, and courts have held that “parole hearing
transcripts are proper evidence in this setting.” (People v.
Mitchell (2022) 81 Cal.App.5th 575, 586, 589.)
If, as Nunally claims,2 the district attorney agreed at the
time of the plea agreement to amend the factual basis for
Nunally’s plea to reflect that Nunally did not admit to being a
knowing and willing participant, that did not preclude the
district attorney from later arguing in a postconviction
proceeding that Nunally was in fact a knowing and willing
participant. Nunally cites no authority to the contrary. His cited
case, U.S. v. Lovelace (8th Cir. 2009) 565 F.3d 1080, held the
government breached a plea agreement by advocating a higher
offense level for a drug offense than was specified in the
agreement. (Id. at p. 1087.) Here, Nunally does not contend the
district attorney advocated for greater punishment than that to
which Nunally had agreed when he took his plea.
Because Nunally’s arguments lack merit, trial counsel
was not ineffective for failing to raise them. (People v. Jones
(2010) 186 Cal.App.4th 216, 234–235 [to establish ineffective
assistance of counsel, defendant must show “counsel’s
representation ‘fell below an objective standard of
reasonableness,’ ” and “ ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ”].)
2 Nunally provides no record citations and we have been
unable to verify the accuracy of his characterization of the facts.
We assume arguendo his characterization is correct.
4
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
WEINGART, J.
5