People v. Nichols CA3

Filed 9/17/21 P. v. Nichols CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

THE PEOPLE, C092439

Plaintiff and Respondent, (Super. Ct. No. 19CF00755)

v.

GARRISON J. NICHOLS,

Defendant and Appellant.

Defendant Garrison J. Nichols pled no contest to one count of committing a lewd or lascivious act on a child under 14. The trial court denied probation and sentenced defendant to the upper term of eight years in state prison. On appeal, defendant contends the court abused its discretion in denying his request for probation and sentencing him to the upper term. We find no abuse of discretion and affirm the judgment. I. BACKGROUND Defendant began dating E.S., the mother of six-year-old Jane Doe, and moved into the home with E.S., Jane Doe, and her brother. The children called defendant, “Daddy Gary.” Several months after defendant moved in, Jane Doe reported to E.S. that

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defendant wanted her to put her mouth on his penis. E.S. told her that was bad and not to say such things. Jane Doe responded, “ ‘I couldn’t keep it a secret anymore, but daddy asked me to.’ ” While Jane Doe’s mother and brother were sleeping, defendant lured her to put her mouth on his penis by telling her it would give her milk. Jane Doe said she put her mouth on defendant’s penis as he instructed. E.S. confronted defendant; he denied the allegation and begged E.S. not to report it to the police. He then fled. Jane Doe reported multiple similar incidents of defendant touching or attempting to touch her inappropriately. The district attorney filed an amended complaint charging defendant in count 1 with oral copulation or sexual penetration with a child under the age of 10 (Pen. Code,1 § 288.7, subd. (b)), and in count 2 with committing a lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)). Defendant pled no contest to count 2. In exchange, count 1 was dismissed with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754, 758. The trial court ordered a psychological examination of defendant, pursuant to sections 288.1 and 1203.067. The prosecutor filed a sentencing statement in aggravation and cited no factors in mitigation. Attached was a victim impact statement that E.S. provided, detailing the trauma defendant inflicted on Jane Doe. In response, the defense filed a sentencing statement in mitigation, arguing for probation. Attached were letters in support of defendant and a report that he had a Static-99R risk assessment score of 2, with an average risk for sexual offense recidivism. At the sentencing hearing, the trial court issued a tentative ruling to deny probation and impose the upper term. The court noted it had read and considered the probation report with a confidential attachment; the prosecutor’s statement in aggravation; defense counsel’s statement in mitigation, including attachments; and a psychiatric evaluation pursuant to section 288.1. The