People v. Denham

Filed 1/13/14 CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C069068

Plaintiff and Respondent, (Super. Ct. No. P08CRF0279)

v.

NICHOLAS JAMES DENHAM,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of El Dorado County, James R. Wagoner, Judge. Affirmed as modified.

Steven Schorr, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Robert C. Nash and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts I through III and V.

1

Defendant murdered Gerald Cody Ludden and took his motorcycle. Convicted of first degree murder, second degree robbery, and carjacking, and sentenced to an indeterminate term of 25 years to life in state prison, defendant appeals. In this appeal from the judgment, defendant contends the court erred by awarding victim restitution based on expenses not attributable to defendant‟s conduct. In the published part of this opinion, we conclude that defendant‟s contention concerning victim restitution is not cognizable because defendant did not appeal from the separately appealable victim restitution order. In the unpublished part of this opinion, we conclude that the judgment must be modified. Accordingly, we modify the judgment and affirm it as modified. BACKGROUND Defendant does not challenge the sufficiency of the evidence and our consideration of the issues raised by defendant does not otherwise require a detailed recitation of the facts. Briefly stated, the facts are that defendant killed Ludden and dumped his body off Mosquito Bridge, an old, wooden bridge over the south fork of the American River. After the murder, defendant was seen driving Ludden‟s distinctive motorcycle. Defendant told an acquaintance that he “killed a guy for it.” The district attorney charged defendant by information with murder (Pen. Code, § 187, subd. (a) -- count I);1 second degree robbery (§ 211 -- count II); and carjacking (§ 215, subd. (a) -- count III). A jury convicted defendant as charged and found that the murder was in the first degree. The trial court sentenced defendant to an indeterminate term of 25 years to life in state prison for murder. The court then stated: “The [section] 667.5(b) [one-year enhancement for a prior prison term] and Counts II [second degree robbery] and III