People v. Nickerson CA2/8 ( 2024 )

Filed 1/9/24 P. v. Nickerson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B319196
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. LA051175)
v.
JAMES DANIEL NICKERSON,
JR.,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County. Michael V. Jesic, Judge. Affirmed.
Michelle T. LiVecchi-Raufi, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan S. Pithey, Assistant Attorney
General, Idan Ivri and Nikhil Cooper, Deputy Attorneys General,
for Plaintiff and Respondent.
_____________________________
Following a court trial in 2008, appellant James Daniel
Nickerson, Jr., was convicted of second degree robbery with a
firearm enhancement, among other crimes. The trial court
sentenced Nickerson to an aggregate term of 24 years in state
prison. On January 11, 2021, the Secretary of the California
Department of Corrections and Rehabilitation (CDCR)
recommended that the superior court recall Nickerson’s sentence
and resentence him. The resentencing court declined to recall
Nickerson’s sentence because it found him to be an unreasonable
risk of danger to public safety under Penal Code section 1172.1,
subdivision (b)(2).1 We conclude that the resentencing court did
not abuse its discretion in declining to recall the sentence.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying offenses and first appeal2
On November 12, 2005, Christopher Ames met Nickerson
to sell him marijuana. During the transaction, Nickerson handed
Ames less money than Ames had been expecting, and Ames
protested. Nickerson responded to Ames’s protests by pulling out
a handgun, shooting Ames in the chest, and then clubbing Ames
in the head with the weapon, before running away with some of
the marijuana. Los Angeles Police Detective Thomas Townsend
investigated the shooting. On January 4, 2006, Detective
Townsend interviewed Nickerson by phone. Nickerson admitted
1 All statutory references are to the Penal Code unless
otherwise stated.
2 We take a portion of the factual and procedural background
from this Court’s prior opinion. (People v. Nickerson (Feb. 19,
2010, B213581) [nonpub. opn.].)
2
that he had shot Ames, but claimed the gun had discharged
accidentally. Nickerson agreed to see Detective Townsend the
next day.
In May 2007, the People filed an information charging
Nickerson with the following counts: count 1, second degree
robbery with firearm allegations under section 12022.53,
subdivisions (b) [personal use], (c) [discharge], and (d) [discharge
causing great bodily injury]; count 2, assault with a firearm
(based on the clubbing) with a firearm allegation under section
12022.5 [personal use], and an infliction of great bodily injury
allegation under section 12022.7, subdivision (a); count 3, assault
with a firearm (based on the shooting) with an infliction of great
bodily injury allegation under section 12022.7, subdivision (a);
and count 4, possession of a firearm by a felon.
The information additionally alleged that Nickerson was
previously convicted of burglary, which qualified as both a strike
and as a prior serious felony conviction, and that he had three
prior convictions for which he served prison terms. (§ 667,
subds. (b)–(i), § 1170.12, subds. (a)–(d), § 667, subd. (a)(1),
§ 667.5, subd. (b).)
At a court trial in December 2008, the People presented
evidence establishing the facts summarized above. Nickerson
presented no evidence; his trial counsel argued that there was
reasonable doubt whether Nickerson had intentionally shot
Ames. On December 19, 2008, the trial court found Nickerson
guilty as charged in counts 2, 3, and 4, and found true the
ancillary firearm and great bodily injury allegations. The court
found the prior conviction allegations to be true. The court took
count 1 under submission to consider the question whether
Nickerson could be guilty of robbery for taking an illegal
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substance, i.e., marijuana. On December 22, 2008, the trial court
found Nickerson guilty of second degree robbery, with firearm
findings under section 12022.53, subdivisions (b) [personal use],
and (c) [discharge].
On January 14, 2009, the trial court sentenced Nickerson
to an aggregate term of 24 years in state prison as follows: on
count 1 (robbery), 2 years, doubled to 4 years for the strike, plus
20 years for the firearm enhancement under section 12022.53,
subdivision (c); on count 2 (assault with a firearm/clubbing),
10 years concurrent; on count 3 (assault with a firearm/shooting),
7 years concurrent; and on count 4 (possession of a firearm by a
felon), 2 years 8 months concurrent.
In 2010, this Court affirmed the judgment of conviction and
modified the sentence by staying the terms imposed on counts 2
and 3. (People v. Nickerson, supra, B213581.) We further
awarded Nickerson five additional days of custody credit. (Ibid.)
2. Resentencing proceedings
On January 11, 2021, the Secretary of the CDCR
recommended that the trial court recall Nickerson’s sentence and
resentence him under former section 1170, subdivision (d)(1),
since renumbered as section 1172.1. The Secretary’s letter asked
the trial court to consider amendments to section 12022.53 that
took effect on January 1, 2018. Prior to the amendments,
a sentencing court was required to impose enhancements for
personal firearm use in the commission of enumerated felonies.
(People v. Morrison (2019) 34 Cal.App.5th 217, 221.) Now courts
have discretion to strike or dismiss a personal use firearm
enhancement at sentencing or resentencing in the interest of
justice. (§ 12022.53, subd. (h).)
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The Secretary detailed Nickerson’s commitment offense
and his criminal history. Nickerson had three juvenile offenses:
two convictions for burglary under section 459 and one for grand
theft under section 487.1. Nickerson also had six adult
convictions: (1) June 8, 1983, receiving stolen property under
section 496; (2) December 2, 1985, first degree burglary under
section 459; (3) April 26, 1988, possession of a narcotic controlled
substance for sale under Health & Safety Code section 11351;
(4) September 26, 1989, possession of a narcotic controlled
substance under Health & Safety Code section 11350,
subdivision (a); (5) July 28, 1990, possession or purchase of
cocaine base for sale under Health & Safety Code section 11351.5;
and (6) September 8, 2000, felon or addict in possession of a
firearm under section 12021, subdivision (a). The case summary
noted that Nickerson violated parole three times.
The case summary also included Nickerson’s 11 rule
violations in custody. The two most recent violations were on
January 25, 2019, for fermenting or distilling materials in a
manner consistent with alcohol production and for fighting on
August 25, 2017.
Nickerson had nine written counselings during his
incarceration. The two most recent ones were in 2019 for being
absent from a work assignment and disobeying an order.
The Secretary’s letter also detailed Nickerson’s work and
education progress reports. Nickerson’s “mental health status is
listed as Enhanced Outpatient Level of Care. Nickerson’s
developmental disability status is listed as DD2-Usually needs
reminders & assistance with daily functions.”
Nickerson’s retained counsel then filed a motion urging the
court to recall and resentence him. Nickerson argued that his
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sentence should be recalled because he “possesses broad
community support, positive education progress, and a strong
dedication to overcoming his mental health issues.” The motion
stated that “Nickerson was born with cognitive issues but has
always been committed to his mental health appointments even
while incarcerated.” Nickerson attached letters of support from
family members and friends.
On January 22, 2022, the resentencing court, different from
the original trial court, held a hearing on the motion. Nickerson’s
counsel read into the record the trial court’s statement at the
original sentencing hearing after it denied Nickerson’s motion
under People v. Superior Court (1996) 13 Cal.4th 497 (Romero) to
dismiss a prior strike conviction if doing so would serve the
interest of justice. “Let me state I feel that my hands were bound
by the law. But if there is any way that the appellate court finds
that I’ve abused my discretion in denying the Romero motion, I
will certainly welcome it. . . . Oh, I also want to state that he was
borderline—his IQ is very low, and so he was borderline as to the
specific intent in this court’s opinion.”
Nickerson’s counsel then argued to the resentencing court
that Nickerson’s IQ was so low that he could not have
premeditated the attempted murder. The resentencing court
later corrected Nickerson’s counsel that Nickerson was convicted
of robbery with a firearm enhancement.
The resentencing court declined to recall Nickerson’s
sentence because it concluded that Nickerson would pose an
unreasonable risk of danger to public safety. The court stated its
reasons on the record:
“Just to be clear about the facts of the case, he shot
someone in the chest. And I’ve got to say, I’m a little surprised
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that the enhancement that he was sentenced on wasn’t the
12022.53(d), which is the 25-to-life enhancement for discharging
a firearm in the commission of robbery causing great bodily
injury because it’s clear that the jury found that there was great
bodily injury as to the other counts he was convicted on including
the assaults where those counts were run concurrent. So I’m
looking at the severity of offense was extreme. It’s a miracle that
the victim didn’t die being shot in the chest.
“If you look at his history, his juvenile history has from ’79
to ’82, 3 separate offenses, theft offenses for burglary and grand
theft. Starting in ’83 when he became an adult it’s every year or
2 he’s convicted of another offense, including first degree
residential burglary. And then we have this case. In terms of
how well he’s done in the prison, there’s numerous rule
violations. Nothing horribly serious. There’s some for fighting
but nothing serious. But based on the conduct in his history and
on the actual facts of this case I do find that he’s an unreasonable
risk to safety to the public if he’s released. I am making that
finding.
“But I want to point out that if I were to recall the sentence
and resentence him I wouldn’t give him less than the 24 years.
I’d give him the 24 years, so it wouldn’t make a difference. So the
motion is denied at this time.”
Nickerson timely appealed.
DISCUSSION
I. The trial court did not abuse its discretion when it
refused to recall Nickerson’s sentence
A. Governing law
“Prior to January 1, 2022, section 1170, former subdivision
(d)(1) . . . ‘authorize[d] the Secretary of the CDCR to recommend
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to the superior court that the court recall a previously imposed
sentence and resentence the defendant. [Citation.] The CDCR
recommendation furnishe[d] the court with jurisdiction it would
not otherwise have to recall and resentence and [was] “an
invitation to the court to exercise its equitable jurisdiction.” ’ ”
(People v. Braggs (2022) 85 Cal.App.5th 809, 817, fn. omitted
(Braggs).)
Effective January 1, 2022, the California Legislature
“ ‘moved the recall and resentencing provisions of former section
1170(d)(1) to new section 1170.03.’ ” (Braggs, supra, 85
Cal.App.5th at p. 817.) “ ‘[T]he Legislature repeatedly indicated
that Assembly Bill 1540 was intended to “make clarifying
changes” to former section 1170(d)(1), including specifying the
required procedure and guidelines when the CDCR recommends
recall and resentencing.’ ” (Id. at pp. 817–818.)
“Effective June 30, 2022, ‘[t]he Legislature . . . renumbered
section 1170.03 to section 1172.1, but made no substantive
changes.’ ” (Braggs, supra, 85 Cal.App.5th at p. 818.) Section
1172.1 provides that a trial court may recall and resentence a
defendant at any time upon the recommendation of the Secretary
or other specified public official. (§ 1172.1, subd. (a)(1).)
Section 1172.1 also provides that if the “resentencing
request . . . is from the Secretary of the Department of
Corrections and Rehabilitation,” then “[t]here shall be a
presumption favoring recall and resentencing of the defendant,
which may only be overcome if a court finds the defendant
currently poses an unreasonable risk of danger to public safety,
as defined in subdivision (c) of Section 1170.18.” (§ 1172.1,
subd. (b)(2).)
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Subdivision (c) of section 1170.18, in turn, provides that an
“ ‘unreasonable risk of danger to public safety’ means an
unreasonable risk that the petitioner will commit a new violent
felony within the meaning of clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667.” (§ 1170.18,
subd. (c).)
The violent felonies listed in section 667, subdivision (e),
are known as “super strikes” (People v. Jefferson (2016)
1 Cal.App.5th 235, 242) and consist of the following crimes:
(1) sexually violent offenses; (2) oral copulation with a child; (3) a
lewd or lascivious act involving a child; (4) any homicide offense,
including attempted homicide; (5) solicitation to commit murder;
(6) assault with a machinegun on a peace officer or firefighter;
(7) possession of a weapon of mass destruction; and (8) any
serious or violent felony offense punishable by life imprisonment
or death. (§ 667, subd. (e)(2)(C)(iv).)
Section 1172.1, subdivision (a)(5), sets forth a list of
permissive and mandatory factors for the court to consider when
determining whether to recall and resentence. The court may
consider “postconviction factors, including, but not limited to, the
disciplinary record and record of rehabilitation of the defendant
while incarcerated, evidence that reflects whether age, time
served, and diminished physical condition, if any, have reduced
the defendant’s risk for future violence, and evidence that reflects
that circumstances have changed since the original sentencing so
that continued incarceration is no longer in the interest of
justice.” (§ 1172.1, subd. (a)(5).)
The court shall consider “if the defendant has experienced
psychological, physical, or childhood trauma, including, but not
limited to, abuse, neglect, exploitation, or sexual violence, if the
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defendant was a victim of intimate partner violence or human
trafficking prior to or at the time of the commission of the offense,
or if the defendant is a youth or was a youth as defined under
subdivision (b) of Section 1016.7 at the time of the commission of
the offense, and whether those circumstances were a contributing
factor in the commission of the offense.” (§ 1172.1, subd. (a)(5).)
“Where, as here, the CDCR recommends recall and
resentencing, the court is also now required to hold a hearing
(unless the parties otherwise stipulate), state on the record its
reasons for its decision, provide notice to the defendant, and
appoint counsel for the defendant.” (People v. McMurray (2022)
76 Cal.App.5th 1035, 1040; accord § 1172.1, subds. (a)(7)–(8),
(b)(1).) Furthermore, when recalling and resentencing under
these provisions, the court “shall . . . apply any changes in law
that reduce sentences or provide for judicial discretion.”
(§ 1172.1, subd. (a)(2); People v. Pierce (2023) 88 Cal.App.5th
1074, 1078.)
We review a court’s resentencing determination for abuse
of discretion. (People v. Frazier (2020) 55 Cal.App.5th 858, 863.)
“ ‘In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, “ ‘[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence of
such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.’ ” [Citations.] Second, a “ ‘decision will not be
reversed merely because reasonable people might disagree. “An
appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.” ’ ”
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[Citation.] Taken together, these precepts establish that a trial
court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.’ ” (People v. Strother (2021) 72 Cal.App.5th 563, 571.)
B. Analysis
The presumption in favor of recall can be overcome only by
a finding that the defendant poses an unreasonable risk to public
safety, as defined in section 1170.18, subdivision (c). Nickerson
argues that the resentencing court abused its discretion because
nothing in the record supports a finding that he is an
unreasonable risk of danger to public safety if released.
(§ 1172.1, subd. (b)(2).) We disagree.
Nickerson’s first appeal and the Secretary’s letter establish
that Nickerson brought a handgun to a drug deal and shot Ames
in the chest after a struggle. Nickerson also clubbed Ames on the
head with the handgun. The resentencing court considered these
facts, as well as Nickerson’s criminal record. The resentencing
court observed that Nickerson was a recidivist because Nickerson
had been convicted for a new offense “every year or 2 . . .
including first degree residential burglary.” Nickerson
acknowledges that his prior strike conviction for burglary “was a
serious offense.” The resentencing court also expressed that “it’s
a miracle that the victim didn’t die being shot in the chest.”
The court further observed that Nickerson had several rule
violations in prison. Based on the foregoing, the resentencing
court concluded that Nickerson was an unreasonable risk of
danger to public safety. While the court did not explicitly state
that there was an unreasonable risk that Nickerson would
commit murder or attempted murder under section 667,
subdivision (e), it made this implied finding given the nature of
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the commitment offense. It was not arbitrary or capricious for
the court to conclude Nickerson’s recidivist history culminated in
a violent offense where he shot someone. Thus, the trial court did
not err in concluding that there was an unreasonable risk that
Nickerson might again engage in similar conduct.
Nickerson attempts to relitigate the underlying facts of his
conviction by claiming that he did not have the requisite intent to
discharge the firearm. Section 12022.53, subdivision (c), requires
the prosecution to prove beyond a reasonable doubt that a
defendant personally and intentionally discharged a firearm
during the commission of a specified felony. (People v. Anderson
(2020) 9 Cal.5th 946, 953.) Nickerson points to the victim Ames’s
testimony that the firearm discharged when Nickerson and Ames
were scuffling. Nickerson also points to the investigating
detective’s testimony saying the same. However, Nickerson did
not present the resentencing court with this testimony or argue
that Nickerson lacked the requisite intent. Nor did Nickerson
object to the resentencing court’s summary of the facts. Our
Supreme Court has held that failure to object forfeits “claims
involving the trial court’s failure to properly make or articulate
its discretionary sentencing choices.” (People v. Scott (1994)
9 Cal.4th 331, 353 (Scott).) As such, the argument on appeal is
forfeited. Even if we considered this argument, testimony that
the firearm discharged during a scuffle is not evidence that
Nickerson did not intend to discharge the firearm. At
Nickerson’s trial, the trial court found true the firearm
enhancement under section 12022.53, subdivision (c), which
required a finding that Nickerson personally and intentionally
discharged a firearm. We then affirmed the judgment on appeal.
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Nickerson further argues that the resentencing court failed
to consider his rehabilitative efforts, as well as his mental health
and intellectual deficits under section 1172.1, subdivision (a)(5).
The resentencing court had Nickerson’s motion containing his
education progress and letters of support. Nickerson claims the
resentencing court did not have the benefit of the trial transcript
containing testimony of Nickerson’s Regional Center case worker
regarding his intellectual and developmental deficits. Nickerson
did not make any argument below regarding the caseworker’s
testimony or the resentencing court’s failure to consider it. This
argument is thus forfeited on appeal. (Scott, supra, 9 Cal.4th at
p. 353.) In any event, Nickerson’s counsel at the resentencing
hearing stated that Nickerson had a very low IQ. Nickerson’s
counsel also read into the record the transcript from the
sentencing hearing where the trial court stated that Nickerson
had a very low IQ. Further, the CDCR letter contained
information about Nickerson’s intellectual deficits. While the
resentencing court did not reference Nickerson’s intellectual
capacity in its ruling, the court had no obligation to do so. “[T]he
general rule is that, faced with a silent record, an appellate court
will presume that the trial court performed its duty and acted in
the lawful exercise of its jurisdiction.” (People v. Allegheny
Casualty Co. (2007) 41 Cal.4th 704, 715.) Nickerson concedes in
his reply brief that the statute does not require the resentencing
court to “recite every single consideration for and against
resentencing.” The resentencing court explained its rationale for
denying the request to recall the sentence based on the violent
nature of Nickerson’s offense, his criminal history, and rule
violations in prison. This was sufficient to comply with section
1172.1’s directive to consider this evidence and the requirement
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that the court “state on the record the reasons for its decision to
grant or deny recall and resentencing.” (§ 1172.1, subd. (a)(7).)
While a different court may have reached another result in
this case, the resentencing court’s conclusion was not “arbitrary,
capricious or patently absurd.” (People v. Carmony (2004)
33 Cal.4th 367, 378.) Nor was its conclusion completely
unsupported by the record, such that it amounted to a reversible
abuse of discretion. (Id. at p. 379.)
DISPOSITION
The order declining to recall Nickerson’s sentence is
affirmed.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
GRIMES, J.
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