Filed 10/10/23 P. v. Nicholas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E081594
v. (Super.Ct.No. SWF029543)
DAVID ELLIOTT NICHOLAS, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John M. Monterosso,
Judge. Affirmed.
David Elliott Nicholas, in pro. per.; and William Paul Melcher, under appointment
by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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I.
INTRODUCTION
Defendant and appellant David Elliott Nicholas appeals from a postjudgment order
denying his petition for resentencing under Penal Code1 section 1172.75. Appointed
counsel has filed a brief under the authority of People v. Delgadillo (2022) 14 Cal.5th
216 (Delgadillo), requesting this court to conduct an independent review of the record.
In addition, defendant has had an opportunity to file a supplemental brief with this court
and has done so raising various issues. We have considered defendant’s arguments and
affirm the trial court’s order. (Id. at pp. 231-232.)
II.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2013, an information was filed charging defendant with attempted
carjacking (§§ 664/215, subd. (a)). The information also alleged that defendant had
sustained two prior serious felony convictions (§ 667, subd. (a)) and two prior strike
convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)).
In May 2015, a jury convicted defendant as charged, and in August 2015 he was
sentenced to 35 years to life. In relevant part, defendant received consecutive terms of
five years on each of his two prior serious felony convictions pursuant to section 667,
subdivision (a).
1 All future statutory references are to the Penal Code.
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On May 31, 2023, defendant filed a section 1172.75 petition to vacate his prior
enhancements. Based on section 1172.75, defendant argued the enhancements were no
longer valid, and he requested recall and resentencing. He also requested appointed
counsel.
On June 5, 2023, the trial court issued an order stating that no action could be
taken on defendant’s petition on the grounds section 1172.75 did not apply to his case,
and that defendant could not initiate his own petition for resentencing. Defendant timely
appealed.
III.
DISCUSSION
After defendant appealed, appointed appellate counsel filed a brief under the
authority of Delgadillo, supra, 14 Cal.5th 216, setting forth a statement of the case and a
summary of the procedural background. (See People v. Wende (1979) 25 Cal.3d 436
(Wende); Anders v. California (1967) 386 U.S. 738 (Anders).) Counsel considered
potential issues on appeal but found no specific arguments as grounds for relief, and
requested that we exercise our discretion and independently examine the appellate record
for any arguable issues. Under Anders, which requires “a brief referring to anything in
the record that might arguably support the appeal,” (id. at p. 744) counsel raises the issues
of whether the trial court erred in denying defendant’s petition when it determined
section 1172.75 did not apply to his case, defendant could not initiate his own petition,
and without appointing defendant counsel.
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We offered defendant an opportunity to file a personal supplemental brief, and he
has done so. In his supplemental brief, defendant contends the trial court had discretion
to grant his petition for resentencing pursuant to section 1172.75.
In Wende, our Supreme Court held that “Courts of Appeal must conduct a review
of the entire record whenever appointed counsel submits a brief on direct appeal which
raises no specific issues or describes the appeal as frivolous.” (Delgadillo, supra, 14
Cal.5th at p. 221.) The Wende procedure applies “to the first appeal as of right and is
compelled by the constitutional right to counsel under the Fourteenth Amendment of the
United States Constitution.” (Ibid.)
In Delgadillo, supra, 14 Cal.5th 216, the Supreme Court held that the Wende
independent review procedure is not constitutionally required in an appeal from a
postconviction order denying a section 1172.6 petition for resentencing because the
denial does not implicate a defendant’s constitutional right to counsel in a first appeal as
of right. (Delgadillo, at pp. 222, 224-226.) The court further found that general due
process principles regarding fundamental fairness does not compel a Wende independent
review of the order. (Id. at pp. 229-232.) However, the court explained that if a no-
issues brief is filed in a section 1172.6 appeal and the defendant then “files a
supplemental brief or letter, the Court of Appeal is required to evaluate the specific
arguments presented in that brief and to issue a written opinion.” (Id. at p. 232.) We are
not required to conduct “an independent review of the entire record to identify unraised
issues” but may do so at our discretion. (Ibid. [“While it is wholly within the court’s
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discretion, the Court of Appeal is not barred from conducting its own independent review
of the record in any individual section 1172.6 appeal.”])
While Delgadillo addressed the application of Wende’s review procedures in the
context of a postconviction relief order under section 1172.6 (Delgadillo, supra, 14
Cal.5th at p. 231, fn. 5 [“[i]n this case, we are not deciding Wende’s application to other
postconviction contexts, which may present different considerations”]), which is not the
type of postconviction order at issue here, the same principles may nonetheless apply
given that this does not appear to be a first appeal as of right. Following Delgadillo’s
guidance, we shall consider the arguments defendant raises in his supplemental brief.
Defendant contends that the trial court had discretion to grant him resentencing
relief under section 1172.75. Defendant’s reliance on section 1172.75 is misplaced.
Section 1172.75, subdivision (a), states that “[a]ny sentence enhancement that was
imposed prior to January 1, 2020, pursuant to subdivision (b) of [s]ection 667.5, except
for any enhancement imposed for a prior conviction for a sexually violent offense . . . is
legally invalid.” The statute provides various deadlines for the California Department of
Corrections and Rehabilitation to identify, and for courts to recall and resentence, those
inmates who have a qualifying enhancement that is no longer valid. (§ 1172.75,
subds. (b), (c).)
The problem with defendant’s argument is that defendant’s sentence in this case
does not include a section 667.5, subdivision (b) enhancement. An information was filed
charging defendant with attempted carjacking (§§ 664/215, subd. (a)), as well as
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defendant having had sustained two prior serious felony convictions (§ 667, subd. (a))
and two prior strike convictions (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). Defendant
was convicted as charged and sentenced to 35 years to life. Defendant was not charged
with a prior prison term enhancement pursuant to section 667.5, subdivision (b). Thus,
the procedures set forth in section 1172.75 regarding invalid prior prison term
enhancements simply do not apply to defendant, and the trial court did not err in denying
defendant’s petition on that basis. Nothing in the record shows defendant’s sentence is
otherwise unauthorized.
IV.
DISPOSITION
The trial court’s order denying defendant’s section 1172.75 petition for
resentencing is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J.
We concur:
MILLER
Acting P. J.
MENETREZ
J.
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