People v. Nicholas CA3

Filed 2/9/22 P. v. Nicholas CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C091668

Plaintiff and Respondent, (Super. Ct. No. 97F03179)

v.

JOSEPH ELDRIDGE NICHOLAS,

Defendant and Appellant.

In 1998, a jury found defendant Joseph Eldridge Nicholas guilty on two counts of first degree murder and attempted robbery. The jury found true the special circumstances that the murder was committed during the commission or attempted commission of a robbery (Pen. Code, § 190.2, subd. (a)(17)(A))1 and defendant committed multiple murders (§ 190.2, subd. (a)(3)). The jury also found true the allegation that defendant

1 Undesignated statutory references are to the Penal Code.

1

used a deadly weapon in the commission of the offenses. We affirmed that judgment in an unpublished opinion. (People v. Nicholas et al. (Sept. 21, 2000, C031099) [nonpub. opn.] (Nicholas).) Defendant appeals from a postjudgment order denying his petition for resentencing on his murder convictions under section 1170.95. He argues the trial court erred by looking beyond the face of his petition without issuing an order to show cause, and determining he was ineligible for resentencing under this statute based on the jury’s felony-murder special circumstance finding. We disagree and affirm. I. BACKGROUND On October 2, 1998, a jury found defendant and his co-defendant guilty on two counts of first degree murder and one count of attempted first degree robbery. (Nicholas, supra, C031099.) The jury also found true special allegations that the murders were committed during the commission of the attempted robbery and multiple murders were committed, as well as allegations that defendant used a deadly weapon to commit the offenses. (Ibid.) The trial court sentenced defendant to consecutive life terms without the possibility of parole, plus 18 years. On appeal, we struck a five-year enhancement and affirmed the judgment as modified. (Ibid.) On March 25, 2019, defendant filed a petition for resentencing of his murder conviction pursuant to section 1170.95. The court appointed counsel, the People responded to the petition, and defendant filed a reply. After briefing, the court denied the petition finding defendant was ineligible for relief under section 1170.95 based on the jury’s special circumstance finding and the evidence supporting the findings of premeditation and deliberation. Thus, no order to show cause issued. II. DISCUSSION A. Senate Bill No. 1437 Senate Bill No. 1437 (2017-2018 Reg. Sess.), which became effective on January 1, 2019, was enacted “to amend the felony murder rule and the natural and probable