People v. Nichols CA1/5

Filed 3/23/23 P. v. Nichols CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A164696 v. KATHRYN LEE NICHOLS, (Sonoma County Defendant and Appellant. Super. Ct. No. SCR-747896-1)

This is an appeal from final judgment after a jury convicted defendant Kathryn Lee Nichols of assault and attempted criminal threats and found true allegations that she used a deadly weapon. Defendant contends the trial court failed to exercise the discretion vested in it by the recently amended Penal Code1 section 1170 in imposing the one-year middle term for the criminal threats offense plus an additional year for the deadly weapon enhancement. The version of section 1170 in effect at the sentencing hearing set the lower term as the presumptive term for certain offenses when a defendant’s prior trauma was a contributing factor. According to defendant, although the court recognized her prior trauma, it failed to impose the presumptive lower term, such that her

1 Unless otherwise stated, all statutory citations herein are to the Penal Code.

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sentence must be vacated and the matter remanded for resentencing. We disagree and affirm the judgment. FACTUAL AND PROCEDURAL BACKGROUND On November 29, 2021, an amended information was filed charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1); count 1), making criminal threats (§ 422, subd. (a); count 2), felony vandalism (§ 594, subd. (a); count 3), misdemeanor falsely identifying herself to a peace officer (§ 148.9, subd. (a); count 4), and misdemeanor trespassing (§ 602, subd. (o); count 5). The amended information further alleged defendant used a deadly weapon in the commission of counts 2 and 3 (§ 12022, subd. (b)(1)). These offenses were alleged to have been committed in the early morning hours of July 26, 2021. A security guard at a winery in Guerneville found a woman, later identified as defendant, asleep on the ground. He greeted defendant and told her to move along. Defendant was uncooperative. However, the security guard remained insistent and moved to his vehicle while defendant began to gather her belongings. When the security guard asked defendant for her name, she began to threaten him. The security guard warned that he was going to call the sheriff, which led defendant to pick up a golf club, approach him, and state that she was going to kill him. The security guard began to drive away, and as he did so, defendant used the golf club to break his windshield. The sheriff was summoned, and defendant was ultimately arrested. Defendant testified in her own defense and, among other things, admitted 2020 convictions for unlawfully causing a fire and driving a vehicle without the owner’s consent. On December 9, 2021, a jury found defendant not guilty of assault with a deadly weapon but guilty of the lesser included offense of simple assault