People v. Nolan CA2/2

Filed 4/29/21 P. v. Nolan CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B306447

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. YA033029) v.

DEMPSEY NOLAN, JR.,

Defendant and Appellant.

THE COURT: In 1997, Dempsey Nolan, Jr., (appellant) was charged with first degree residential burglary (Pen. Code, § 459). The information alleged that he had suffered two prior serious felony convictions for first degree burglary within the meaning of Penal Code sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (e). As alleged, the first prior conviction occurred on January 10, 1989, in case No. A647353, and the second prior conviction occurred on April 4, 1989, in case No. A920347.

In 1998, appellant was convicted by a jury of the 1997 burglary charge. The trial court imposed a sentence of 25 years to life under the “Three Strikes” law. Subsequently, the Court of Appeal affirmed the conviction. Appellant filed a petition for writ of habeas corpus. He argued that he should be resentenced as a second-strike offender. Per his petition, he entered a guilty plea in case No. A647353 on January 10, 1989, pursuant to a plea agreement that was designed to resolve case No. A647353 (first-degree burglary charged in Compton), case No. 648728 (sexual battery charged in Compton), and case No. A920347 (first degree-burglary charged in Torrance). The agreed sentence was five years in state prison for all three cases combined. Appellant was sentenced in case No. A647353 on January 24, 1989. Then, on April 4, 1989, he was sentenced to a concurrent four-year term in case No. A920347. Appellant represented that he was not present on April 4, 1989, he never entered a guilty plea in case No. A920347, and he never waived his right to a jury trial and confrontation of his accusers, and he never waived his right against self- incrimination. As a result, he claimed that the prior serious felony conviction in case No. A920347 was invalid and did not support the third strike sentence. The trial court denied the petition. In the minute order, it stated, “[Appellant] asserts that the strike prior in case [No.] A920347 could not be used to sentence [him] pursuant to the Three Strikes law insofar as the legal record reflects that he entered a not guilty plea on [October 25, 1988]. While this is correct, the abstract of judgment reflects that he was subsequently sentenced to [four] years in state prison on [April 4, 1989]. A common sense reading of the [appellant’s] exhibits