People v. Nickolsen CA3

Filed 11/17/15 P. v. Nickolsen CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Sacramento) ----

THE PEOPLE, C069879

Plaintiff and Respondent, (Super. Ct. No. 11F07731)

v.

KELLY GEORGE NICKOLSEN,

Defendant and Appellant.

On November 14, 2011, defendant, Kelly George Nickolsen, was charged with one count of unlawfully possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). On November 29, 2011, pursuant to a negotiated plea, defendant pleaded no contest to the charge with the understanding that the court would sentence him to 16 months confinement in the county jail. Waiving his right to a presentence probation report, defendant was sentenced in conformance with his plea agreement on that same date and remanded to the custody of the Sacramento County Sheriff. On December 6, 2011, the trial court recalled defendant’s sentence because defendant’s 16 month sentence to county jail was unauthorized given the fact that his past criminal record included a conviction of a serious or violent felony within the meaning of subdivision (c) of Penal Code section 1192.7 or subdivision (c) of Penal Code section

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667.5 (unless otherwise stated, statutory references that follow are to the Penal Code) which made him ineligible for sentencing in the county jail. (§ 1170, subd. (h)(3).) During these proceedings, the trial court judge stated her opinion that the “strike” prior should have been pleaded in the complaint, and noted: “In this particular case[,] given that the [P]eople had made the decision that they were going to strike it anyway[,] we did what we should not have done and won’t do in the future[,] but short-cut the process by not filing a new complaint and then striking the strike. “Nonetheless[,] the [P]eople were aware and the court was aware at the time that I took the plea[,] that the defendant did have a prior strike that was going to be stricken in the interest of justice.” Before resentencing defendant on December 6, the trial court, being of the opinion that the sentence to state prison was “more restrictive,” gave defendant the opportunity to withdraw his plea. Defendant declined to withdraw his plea and expressly “reaffirmed” it. The trial court then sentenced him to the low term on count one of 16 months to be served in state prison. The trial court granted defendant’s request for a Certificate of Probable Cause. (§ 1237.5, subd. (b).) Somewhat curiously, despite the trial court’s sentence to state prison on December 6, 2011, he was never delivered to the California Department of Corrections and Rehabilitation and, on July 16, 2012, after eight months confinement in the county jail, the court deemed the time served on the state prison commitment, ordered his release “forthwith,” and further ordered that defendant report to the local parole authorities. Defendant now appeals arguing that, because defendant “had been formally sentenced and commenced service of his sentence, the court had no jurisdiction to recall the matter and resentence [defendant] to a term in prison.” We affirm the judgment.