People v. Nichols CA3
C092439A
| Cal. Ct. App. | Mar 10, 2022Background
- Defendant Garrison Nichols pled no contest to one count of committing a lewd or lascivious act on a child under 14 (Pen. Code § 288, subd. (a)); an oral-penetration count was dismissed in exchange for the plea.
- The stipulated factual basis and probation report describe multiple sexual acts against a six‑year‑old who called Nichols “Daddy Gary,” including oral contact and attempts/touches while exploiting opportunities when left alone (e.g., luring with a promise of “milk,” offering to wash/bathe the child).
- Nichols had two prior felony convictions, making him presumptively ineligible for probation under § 1203, subd. (e)(4) unless the case was found “unusual.”
- At sentencing the court denied probation and imposed the upper term (8 years), finding aggravating circumstances: victim’s particular vulnerability, planning/sophistication in the manner of the offense, and abuse of a position of trust; the court considered but rejected mitigation (minimal prior record, Static‑99R score, support letters).
- After appeal and Supreme Court transfer, the matter was reconsidered in light of Senate Bill 567 (amending § 1170 to make the middle term presumptive). The court held Nichols had stipulated to the underlying facts supporting aggravation, satisfying the new § 1170(b)(2) requirements, and affirmed the judgment.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Nichols) | Held |
|---|---|---|---|
| Whether denial of probation was an abuse of discretion | Nichols was presumptively ineligible due to two prior felonies; the court properly found no "unusual case" and would deny probation even if eligible | The case was "unusual" and warranted probation | No abuse of discretion; record supports denial (seriousness, planning, victim vulnerability, position of trust) |
| Whether imposition of the upper term was improper | Aggravating factors (victim vulnerability, planning/sophistication, position of trust) justified the upper term | Court relied on impermissible/ element-based factor (victim age), lacked planning evidence, failed to weigh mitigation | No abuse; at least one valid aggravating factor (position of trust) suffices to impose upper term; court properly considered mitigation |
| Whether SB 567 requires remand for resentencing | SB 567 applies retroactively; but defendant stipulated to facts supporting aggravation, satisfying §1170(b)(2) so no remand needed | Remand required because not all aggravating circumstances were stipulated or proven beyond a reasonable doubt; some factors were element-based | No remand; defendant’s stipulation to the factual basis supplied the required proof of aggravating circumstances under §1170(b)(2), so the upper term stands |
Key Cases Cited
- People v. Osband, 13 Cal.4th 622 (1996) (selection of upper term permissible if any single aggravating factor is found)
- People v. Burbine, 106 Cal.App.4th 1250 (2003) (single aggravating factor — violation of position of trust — can justify upper term)
- People v. Stuart, 156 Cal.App.4th 165 (2007) (factors in rule 4.413 are indicators for finding an "unusual case" but are not mandatory)
- People v. Superior Court (Du), 5 Cal.App.4th 822 (1992) (appellate review of probation decisions limited to abuse of discretion standard)
- People v. Sandoval, 41 Cal.4th 825 (2007) (sentencing review is for abuse of discretion)
- People v. Superior Court (Lara), 4 Cal.5th 299 (2018) (ameliorative sentencing changes apply retroactively to nonfinal judgments)