People v. Nichols CA3

Filed 3/10/22 P. v. Nichols CA3
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.
OPINION ON TRANSFER
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 asserted
the court abused its discretion in denying his request for probation and sentencing him to
the upper term.
We previously filed an opinion addressing and rejecting defendant’s contentions
and affirming the judgment. Subsequently, the California Supreme Court granted review
and transferred the matter back to us with directions to vacate our decision and reconsider
the cause in light of Penal Code sections 1170 and 1170.1, as amended by Senate Bill No.
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567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567).1 (Cal. Rules
of Court, rule 8.528(d).) We vacated our decision and both parties filed supplemental
briefs following the transfer. (See Cal. Rules of Court, rule 8.200(b).) In supplemental
briefing on the effects of the amended sentencing statute, defendant contends his case
must be remanded for resentencing.
Upon reconsidering the cause in light of Senate Bill 567, we affirm. As for
defendant’s original contentions, we again find no abuse of discretion and affirm the
judgment.
I. BACKGROUND
The probation report provided the factual basis for the plea and lists the following
facts. 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
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. While Jane
Doe claimed this particular act of oral penetration occurred one time, she also reported
multiple similar incidents of defendant touching or attempting to touch her vagina. In
particular, the probation report details that during one such incident, defendant offered to
wash Jane Doe’s hair while she was in the bathtub so that E.S. could take a phone call.
Jane Doe reported to her mother that the defendant tried to put his fingers in her vagina
during the bath, and she pushed him away. Jane Doe reported to her mother that on
1 Undesignated statutory references are to the Penal Code.
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another occasion, defendant had touched the outside of her vagina. E.S. also reported
that defendant made numerous inappropriate comments about Jane Doe’s body, including
that her “ ‘boobs were growing’ ” and that “ ‘she was going to be sexual at a young
age.’ ”
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 (§ 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. Defendant stipulated to the
facts as listed in the probation report as the factual basis for the plea. In exchange for his
plea, 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
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
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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
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.
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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 in which 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
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
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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
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 the mitigating factors. We disagree.
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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
enough to impose the upper term. (People v. Burbine (2003) 106 Cal.App.4th 1250,
1263 [“Only a single aggravating factor is required to impose the upper term”]
(Burbine).) 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
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the stipulated factual basis for the plea, 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. Accordingly, the trial court did not abuse its
discretion in selecting an upper term in this case under the rules in effect at the time of
sentencing. There was no abuse of discretion.
C. Senate Bill 567
After we filed our original opinion in this matter, the Governor signed into law
Senate Bill 567. In supplemental briefing, defendant contends that this case must be
remanded for resentencing in light of Senate Bill 567, which amended section 1170 to
make the middle term of the determinate sentencing triad the presumptive prison term
unless specified circumstances exist. (§ 1170, subd. (b)(1)-(2).) Following Senate Bill
567, a trial court “may impose a sentence exceeding the middle term only when there are
circumstances in aggravation of the crime that justify the imposition of a term of
imprisonment exceeding the middle term, and the facts underlying those circumstances
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have been stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial. Except where evidence
supporting an aggravating circumstance is admissible to prove or defend against the
charged offense or enhancement at trial, or it is otherwise authorized by law, upon
request of a defendant, trial on the circumstances in aggravation alleged in the indictment
or information shall be bifurcated from the trial of charges and enhancements. The jury
shall not be informed of the bifurcated allegations until there has been a conviction of a
felony offense.” (§ 1170, subd. (b)(2).) In his supplemental briefs, defendant argues this
matter must be remanded for resentencing so the trial court may reconsider its sentencing
decisions under the rubric of the new legislation.
The People correctly concede the amended version of section 1170, subdivision
(b) that became effective on January 1, 2022, applies retroactively in this case as an
ameliorative change in the law applicable to all nonfinal convictions on appeal. (People
v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308.) Under established law, we “assume,
absent evidence to the contrary, that the Legislature intended an ‘amended statute to
apply to all defendants whose judgments are not yet final on the statute’s operative
date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) “For the purpose of
determining the retroactive application of an amendment to a criminal statute, the finality
of a judgment is extended until the time has passed for petitioning for a writ of certiorari
in the United States Supreme Court.” (Id. at pp. 341-342, citing People v. Vieira (2005)
35 Cal.4th 264, 305-306.)
The People contend, however, that any error was harmless because “the probation
report provided undisputed evidence of each of the aggravating circumstances that the
trial court relied upon such that a jury would have found each circumstance to be true
beyond a reasonable doubt.” (Fn. omitted.) While this argument may be persuasive, we
need not reach harmless error based on what a jury would have concluded where, as here,
defendant stipulated to the facts underlying the circumstances in aggravation as the
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factual basis for the plea. Defendant’s stipulation to these facts and the court’s reliance
on these stipulated facts to support its finding of circumstances in aggravation sufficiently
complies with the retroactive requirements of 1170, subdivision (b)(2).) The court found
that the balance of factors in aggravation based on the stipulated facts in the probation
report outweighed those in mitigation. Specifically, the court considered that the victim
was “particularly vulnerable,” “the manner in which the crime was committed indicates
planning and some sophistication,” and “defendant took advantage of a position of trust
or confidence.”
Defendant concedes that he stipulated to these facts but contends that “remand is
necessary in this case because at least one of the circumstances relied upon by the court
to aggravate [his] sentence was not stipulated to or found true beyond a reasonable doubt,
another of the circumstances was based on an element of the crime itself, and it would be
speculative and usurp the sentencing court’s decision making role to determine without
remand that the court would have found the remaining circumstance alone justified
elevating [his] sentence above the statutory presumption.” (Italics added.) In making
this argument, defendant rehashes arguments that we have already considered and
rejected: namely, that there was no evidence of planning, that the trial court improperly
considered the victim’s age, and that the charged offense was a one-time incident.
However, as we have discussed and as defendant concedes, any one aggravating factor,
including the violation of a position of trust, is enough to impose the upper term.
(Burbine, supra, 106 Cal.App.4th at pp. 1262-1263 [concluding that a single aggravating
factor of violation of a position of trust was sufficient to impose the upper term where the
defendant “ ‘took advantage of a position of trust that he developed with [] young
children’ ”].)
Here, defendant does not challenge the court’s finding that he took advantage of
the victim’s trust and confidence. Instead, he contends “it cannot be determined with any
certainty that the sentencing court would have determined its violation of trust
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circumstance alone justified” the upper term. We disagree. As we have discussed, a trial
court’s choice to select an upper term is permissible if there is even one aggravating
factor. (Osband, supra, 13 Cal.4th at pp. 728-729.) Additionally, as we have discussed
ante, there was ample evidence of planning. First, defendant gained Jane Doe’s trust by
quickly becoming a father figure and took advantage of a time when he was left alone
with Jane Doe and lured her by claiming he was going to give her milk. Second, he took
advantage of another time he was left alone with Jane Doe by volunteering to bathe her
so her mother could take a phone call. To rebut the court’s finding of planning,
defendant again raises the meritless claim that Jane Doe said there was only one incident.
Defendant is incorrect. The probation report is clear that after describing defendant’s oral
penetration, Jane Doe stated this particular act “only occurred one time.” The probation
report also detailed at least two other incidents Jane Doe reported of defendant touching
her vagina. Defendant stipulated to all of these facts, which were the cited circumstances
in aggravation. Accordingly, we reject defendant’s contentions and conclude that the
court properly sentenced him to the upper term in compliance with the newly-enacted
requirements of section 1170, subdivision (b)(2).
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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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