People v. Harper CA2/5

Filed 12/22/23 P. v. Harper CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, B324324

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA055372) v.

NICHOLAS HARPER,

Defendant and Appellant.

APPEAL from a postjudgment order of the Superior Court of Los Angeles County, Kathleen Blanchard, Judge. Affirmed. Emry J. Allen, under Appointment by the Court of Appeal; for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Noah P. Hill and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.

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FACTS Defendant Nicholas Harper (Harper) appeals the trial court’s denial of his petition for resentencing under Penal Code section 1172.6 at the prima facie stage. We affirm. 1. The Shooting1 On February 7, 2012, Harper shot his roommate James McElroy in the face, causing his death. Harper then threw his gun off his apartment’s balcony and into the bushes below. McElroy’s girlfriend was in the bedroom of the apartment and entered the living room upon hearing the gunshot. She saw McElroy sitting on the couch with blood gushing from his mouth, and Harper on the phone requesting an ambulance. She ran into the bathroom, locked the door, and called McElroy’s mother. Harper “busted” into the bathroom, grabbed McElroy’s girlfriend by her shoulders, and told her “two Black guys did it.” When McElroy’s mother arrived, Harper told her that two Black guys had shot her son, which he also reported to the police upon their arrival. Specifically, he reported to the police who arrived at the scene of the shooting that “two men had approached him in the apartment complex” and “wanted to buy marijuana”; Harper brought the men up to his apartment, and when they entered the living room, one “pulled out a rifle and shot” McElroy. Harper later confessed to shooting McElroy himself, but claimed it was an accident that resulted from trying to force the loaded shotgun closed. There was evidence that tension had been building between Harper and McElroy in the weeks before the shooting; that