People v. Nicholson CA3

Filed 1/22/24 P. v. Nicholson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (San Joaquin) ----

THE PEOPLE, C097850

Plaintiff and Respondent, (Super. Ct. Nos. SF127084B, STKCRFE20140005067) v.

KYREN NICODEMUS NICHOLSON,

Defendant and Appellant.

Defendant Kyren Nicodemus Nicholson appeals from the trial court’s order declining to dismiss an enhancement pursuant to Penal Code1 section 1385. Among other things, defendant contends the trial court erred by concluding that the enhancement’s application could not result in a sentence of over 20 years. We agree. Because the record does not establish that the court would have reached the same conclusion but for this error, we will vacate the sentence and remand for resentencing. I. BACKGROUND As relevant here, in 2016, a jury found defendant guilty of second degree murder (§ 187, subd. (a)) and found true that he personally and intentionally discharged a firearm

1 Undesignated statutory references are to the Penal Code.

1

causing death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 15 years to life for the second degree murder conviction and 25 years to life for the firearm enhancement. Defendant appealed and this court remanded the matter for the trial court to consider whether to strike the firearm enhancement under Senate Bill No. 620 (2017-2018 Reg. Sess.) (Stats. 2017, ch. 682, § 2, eff. Jan. 1, 2018; § 12022.53, subd. (h)). (See People v. Nicholson (Feb. 2, 2021, C083498) [nonpub. opn.].) On remand, the trial court declined to strike the firearm enhancement. The court explained: “Based on the facts that I read, I find that the action was cold-blooded, callous and I understand that the thought was he was 19 at the time, and I understand the law talks about under 26 years of age, but this was a murder. [¶] . . . [¶] But based on the facts as I read them, and it was just the one crime of second degree murder and then the one enhancement of the 12022.53, subsection (d) and [the prosecutor] pointing out that with regard to, I guess it was SB 81, this is not a case where the enhancement took the matter over 20 years. [¶] It was an indeterminate sentence, and I am not going to exercise my discretion to change the sentence at all. I do not believe that that would be in the interest of justice.” Defendant filed a timely notice of appeal. II. DISCUSSION Defendant argues the trial court erred by: (1) declining to dismiss the firearm enhancement without finding that doing so would “endanger public safety” under section 1385, subdivision (c)(2); (2) concluding that the application of the firearm enhancement “could not result in a sentence of over 20 years” under section 1385, subdivision (c)(2)(C); and (3) giving insufficient consideration to defendant’s age at the time of the offense. “In 2021, the Legislature enacted Senate Bill No. 81 (2021-2022 Reg. Sess.) . . . which amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice. (Stats. 2021, ch. 721, § 1.)” (People v. Sek (2022) 74 Cal.App.5th 657, 674.) Subdivision (c)(1) of section 1385, as amended, provides: “Notwithstanding any other law, the court shall dismiss