People v. Nicholson CA3

Filed 6/18/25 P. v. Nicholson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C101177

Plaintiff and Respondent, (Super. Ct. Nos. STK-CR-FE- 2014-0005067, SF127084B) v.

KYREN NICODEMUS NICHOLSON,

Defendant and Appellant.

Defendant Kyren Nicodemus Nicholson appeals from the trial court’s order declining to dismiss an enhancement under Penal Code1 section 1385. Defendant contends that remand is necessary to ensure that the order comports with our Supreme Court’s decision in People v. Walker (2024) 16 Cal.5th 1024, issued subsequent to the trial court’s decision. Defendant argues that the trial court failed to consider mitigating circumstances and failed to present substantial, credible evidence of aggravating factors

1 Undesignated statutory references are to the Penal Code.

1

“to neutralize the ‘great weight’ of the mitigating circumstances.” (Id. at p. 1036.) We conclude that the trial court was not required to consider mitigating circumstances in light of the court’s finding that defendant would endanger the public if his sentence were reduced. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 2016, a jury found defendant guilty of second degree murder and found true that he personally discharged a firearm causing death. The trial court sentenced defendant to 15 years to life for second degree murder and 25 years to life for the firearm enhancement. Defendant appealed and this court remanded the matter to the trial court to consider whether to strike the firearm enhancement under section 1385, as amended by Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018; § 12022.53, subd. (h)). (People v. Nicholson (Feb. 2, 2021, C083498) [nonpub. opn.].) On remand, the trial court declined to strike the firearm enhancement. Defendant appealed, contending, inter alia, the trial court erred in concluding the enhancement could not result in a sentence of over 20 years. (People v. Nicholson (Jan. 22, 2024, C097850) [nonpub. opn.].) We agreed with defendant. Because the record did not establish the trial court would have reached the same conclusion but for this error, we vacated the order and remanded for resentencing. (Ibid.) In April 2024, defendant filed a resentencing brief arguing the enhancement should be dismissed under section 1385 based on two mitigating circumstances enumerated in the statute: (1) the enhancement resulted in a sentence over 20 years and (2) defendant’s youth at the time of the offense. Defendant also maintained the presence of statutory mitigating circumstances created a presumption in favor of dismissal that the prosecution failed to rebut. The prosecution opposed, arguing that striking the enhancement would not be in the interest of justice given the circumstances of the crime: Defendant stood over the victim who was on the ground begging for his life and fired two shots killing him. The