People v. Nichols CA2/7

Filed 8/25/23 P. v. Nichols CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B326893
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA007472)
v.
JOSEPH NICHOLS, III,
Defendant and Appellant.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, David Walgren, Judge. Affirmed.
Joseph Nichols, in pro. per., for Defendant and Appellant.
Richard B. Lennon, under appointment by the Court of
Appeal, for Plaintiff and Respondent.
______________________
Joseph Nichols, III, appeals the superior court’s order
granting in part and denying in part his petition for resentencing
pursuant to Penal Code section 1172.75 (former section 1171.1).1
No arguable issues have been identified following review of the
record by Nichols’s appointed appellate counsel. We also have
identified no arguable issues after our own independent review of
the record and analysis of the contentions presented by Nichols in
his supplemental brief. We affirm.
PROCEDURAL BACKGROUND
A jury in 1993 convicted Nichols of kidnapping to commit
robbery (§ 209, subd. (b)), robbery (§ 211), dissuading a witness
by force or violence (§ 136.1, subd. (c)(1)) and evading a police
officer (Veh. Code, § 2800.2) and found true firearm-use
enhancement allegations (§ 12022.5, subd. (a)). Nichols admitted
suffering a prior serious felony conviction within the meaning of
sections 667, subdivision (a), and having served a prior prison
term within the meaning of section 667.5, subdivision (b).
Nichols was originally sentenced to an aggregate
determinate state prison term of 18 years eight months with a
consecutive indeterminate term of life: A life term for aggravated
kidnapping plus the middle term of four years for the firearm-use
enhancement; a consecutive upper term of four years for
dissuading a witness by force or violence plus four years for the
firearm-use enhancement; and a consecutive term of
eight months (one-third the middle term of two years) for evading
a police officer; plus five years for the prior serious felony
conviction and one year for the prior prison term enhancement.
The court imposed and stayed pursuant to section 654 the upper
1 Undesignated statutory references are to this code.
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term of five years for robbery plus four years for the firearm-use
enhancement.
We affirmed Nichols’s convictions on appeal (People v.
Nichols (1994) 29 Cal.App.4th 1651), but modified his sentence to
stay the firearm-use enhancement on the count for dissuading a
witness, agreeing with Nichols the trial court erred in imposing
two section 12022.5 enhancements (Nichols, at p. 1658), and to
strike the one-year enhancement under section 667.5,
subdivision (b), agreeing with Nichols’s additional contention the
court erred in imposing both a section 667, subdivision (a), and a
section 667.5, subdivision (b), enhancement for Nichols’s single
prior conviction for voluntary manslaughter. (Nichols, at
p. 1659.)
On October 11, 2022 Nichols filed a petition for
resentencing pursuant to former section 1171.1 (renumbered
section 1172.75 effective June 30, 2022), seeking resentencing
pursuant to ameliorative legislation that eliminated the
section 667.5, subdivision (b), prior prison term enhancement for
most prior offenses including Nichols’s prior manslaughter
conviction, and made the enhancement for a prior serious felony
discretionary rather than mandatory. The superior court initially
denied the petition as premature but on November 1, 2022
granted the petition in part, striking the one-year prior prison
term enhancement (apparently not recognizing that this court
had already done so in 1994). In addition, the court reaffirmed
imposition of the upper-term sentences for robbery (stayed) and
dissuading a witness by force or violence, noting Nichols’s prior
convictions or sustained petitions in delinquency proceedings
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were numerous and of increasing seriousness.2 The court
declined to modify any other aspect of Nichols’s sentence.3
DISCUSSION
We appointed counsel to represent Nichols on appeal from
the denial of his postjudgment petition. After reviewing the
record, appointed counsel did not identify any arguable issues
and so informed this court. Appointed counsel advised Nichols on
July 20, 2023 that he was filing a brief stating he was unable to
find arguable issues and that Nichols could personally submit
any contentions he believed the court should consider.
On July 31, 2023 Nichols submitted a 41-page, single-
spaced handwritten supplemental brief with hundreds of pages of
exhibits in which he raised a plethora of challenges to the validity
of his original judgment of conviction and sentence; the
competency and adequacy of representation provided by his trial
counsel, appellate counsel and appointed counsel at the
2 The superior court’s identification of aggravating factors to
support imposition of the upper-term sentences for dissuading a
witness and robbery was unnecessary. Section 1172.75,
subdivision (d)(4), excepts cases in which “the court originally
imposed the upper term” from the requirement that, when
resentencing the petitioner, the court “may not impose a sentence
exceeding the middle term unless there are circumstances in
aggravation that justify the imposition of a term of imprisonment
exceeding the middle term, and those facts 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.”
3 The court subsequently denied Nichols’s November 21,
2022 request to amend his October 11, 2022 petition, finding the
request untimely because the court had already ruled on
the petition.
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resentencing proceedings; the fairness (bias) of the judges
hearing his case; and the propriety of various decisions by the
California Department of Corrections and Rehabilitation and the
Board of Parole Hearings. Except as discussed in the following
paragraph, none of these issues is properly before us in this
appeal of the partial denial of Nichols’s petition for resentencing
under section 1172.75, but must be presented with appropriate
supporting material in a petition for writ of habeas corpus—a
procedure Nichols has utilized on numerous occasions since this
court affirmed his convictions in 1994.
At the November 1, 2022 resentencing hearing Judge David
Walgren disclosed on the record that his spouse was employed as
a Los Angeles County deputy district attorney. Nichols contends,
because of that relationship, it was a violation of canon 3E of the
California Code of Judicial Ethics for Judge Walgren to preside at
the hearing and the order denying his petition in part must be
reversed. Nichols is mistaken. The disclosure was proper under
canon 3E(2)(a). No objection or request for recusal was made by
Nichols’s counsel. Under these circumstances, Judge Walgren’s
continued participation in the case was required by Code of Civil
Procedure section 170. (See Rothman, et al., California Judicial
Conduct Handbook (4th ed. 2017) § 7.45, p. 461 [“[w]here a family
member, as described in this rule, is employed in a governmental
law office and is not in the private practice of law, the Legislature
has made it clear that mere association in the government law
office appearing before the judge is not a basis for
disqualification, and it would be incorrect for a judge to do so
absent some other factor”].)
Because no cognizable legal issues have been raised by
Nichols’s appellate counsel or by Nichols or identified in our
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independent review of the record, the order denying his petition
for resentencing is affirmed. (See People v. Delgadillo (2022)
14 Cal.5th 216, 231-232; see also People v. Serrano (2012)
211 Cal.App.4th 496, 503; see generally People v. Kelly (2006)
40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436,
441-442.)
DISPOSITION
The postjudgment order is affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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