People v. Nickerson CA4/3

Filed 10/1/14 P. v. Nickerson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G049405

v. (Super. Ct. No. FBA006680)

MICHAEL VAUGHN NICKERSON, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of San Bernardino County, Michael A. Smith, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Michelle Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent. * * *

Appellant Michael Vaughn Nickerson was convicted by jury in 2005 of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)), driving with a 0.08 percent blood alcohol level causing injury (Veh. Code, § 23153, sub. (b)), leaving the scene of an accident (Veh. Code, § 20001, subd. (a)), and possession of a deadly weapon (Pen. Code, § 12020, subd. (a)(1)). It was also found that appellant had suffered two strike priors (Pen. Code, §§ 667, subds. (b)-(i) and 1170.12, subds. (a)-(d)), and five state prison priors (Pen. Code, § 667.5, subd. (b)). The court sentenced him to 25 years to life on the manslaughter with two prior strike offenses, added the 5 one-year priors consecutively, and ran the other charges on which he could be sentenced concurrently. We affirmed his conviction on appeal in 2008, after which it wended its way through federal habeas corpus before a United States magistrate, a United States district judge, and the 9th Circuit Court of Appeals without alteration. On November 6, 2012, the voters of this state enacted Proposition 36, which amended the “Three Strikes” law and enabled a prisoner serving an indeterminate sentence because of two prior strike convictions to petition for resentencing if his or her current conviction was not for a serious felony. Proposition 36 was enacted into law as Penal Code section 1170.126. On October 2, 2013, appellant petitioned for relief under this provision, despite the fact he was incarcerated for a crime classified as a serious felony (gross vehicular manslaughter while intoxicated, listed in Pen. Code, § 1192.8, subd. (a)). His petition was denied on the basis he was ineligible because his commitment offense was a serious felony. Nickerson appealed, and we appointed counsel to represent him. Counsel did not argue against her client, but advised this court she could find no issues to argue on appellant’s behalf. (People v. Wende (1979) 25 Cal.3d 436.) Counsel filed a brief which