People v. Nichols CA3

Filed 5/23/22 P. v. Nichols CA3 (opinion on rehearing) NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON REHEARING 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 asserted the court abused its discretion in denying his request for probation and sentencing him to the upper term. We previously filed an opinion addressing and rejecting defendant’s contentions and affirming the judgment. Subsequently, the California Supreme Court granted review and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of Penal Code sections 1170 and 1170.1, as amended by Senate Bill No.

1

567 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3) (Senate Bill 567).1 (Cal. Rules of Court, rule 8.528(d).) We vacated our decision and both parties filed supplemental briefs following the transfer. (See Cal. Rules of Court, rule 8.200(b).) In supplemental briefing on the effects of the amended sentencing statute, defendant contends his case must be remanded for resentencing. After filing an opinion addressing Senate Bill 567, we granted rehearing on our own motion. On rehearing, we remand the matter for resentencing in light of Senate Bill 567. I. BACKGROUND The probation report provided the factual basis for the plea and lists the following facts. 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 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. While Jane Doe claimed this particular act of oral penetration occurred one time, she also reported multiple similar incidents of defendant touching or attempting to touch her vagina. In particular, the probation report details that during one such incident, defendant offered to wash Jane Doe’s hair while she was in the bathtub so that E.S. could take a phone call. Jane Doe reported to her mother that the defendant tried to put his fingers in her vagina during the bath, and she pushed him away. Jane Doe reported to her mother that on another occasion, defendant had touched the outside of her vagina. E.S. also reported