People v. Nicholas CA3

Filed 1/25/23 P. v. Nicholas CA3 Opinion following transfer from Supreme Court NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. OPINION ON TRANSFER

JOSEPH ELDRIDGE NICHOLAS,

Defendant and Appellant.

Defendant Joseph Eldridge Nicholas appealed from a post judgment order denying his petition for resentencing on his murder convictions under former section 1170.95.1 In an unpublished opinion, we affirmed that decision, holding the felony-murder special-

1 Effective June 30, 2022, section 1170.95 was renumbered as section 1172.6 without substantive change. (Stats. 2022, ch. 58, § 10.) When applicable, we will refer to the section by its new numbering.

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circumstance findings against defendant rendered him ineligible for relief as a matter of law. On April 27, 2022, our Supreme Court granted review of the matter, and on November 30, 2022, transferred the matter back to us with directions to vacate our previous decision and reconsider the cause in light of People v. Strong (2022) 13 Cal.5th 698 (Strong). On December 1, 2022, we ordered our opinion vacated. In supplemental briefing, defendant relies on Strong to argue the jury’s true finding on the felony-murder special-circumstance allegation rendered prior to the opinions in People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, does not render him ineligible for relief under section 1172.6. He seeks remand to allow the trial court to consider whether a prima facie case can be established on the record of conviction. The People concede remand is warranted. Having reconsidered the issue, we accept the People’s concession; we will reverse and remand the matter accordingly. 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. (People v. Nicholas et al. (Sept. 21, 2000, C031099) [nonpub. opn.].) The jury also found true special-circumstance 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 convictions pursuant to former section 1170.95. The court appointed counsel, the People responded to the petition, and defendant filed a reply. After briefing, the court denied the