Filed 10/16/17 P. v. Nicholson CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Following a preliminary hearing in February 2012, the Contra Costa County District Attorney filed an information charging defendant Jon Nicholson with the felony offenses of attempted kidnapping (Pen. Code,[1] §§ 207, subd. (a), 664) (count one); attempted carjacking (§§ 215, subd. (a), 664) (count two), and attempted second-degree robbery (§§ 211, 212.5, subd. (c), 664) (count three), with related allegations (as to each count) that in the commission of the offenses defendant personally used a deadly and dangerous weapon (knife) (§ 12022, subd. (b)(1)). The information also alleged that defendant had suffered three prior convictions that qualified as prior prison convictions (§ 667.5, subd. (b)), and a fourth prior conviction that qualified as a strike under the Three Strikes Law, a serious conviction, and a prior prison conviction (§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12). Defendant pleaded not guilty and denied the allegations.

On October 17, 2012, the criminal proceedings were suspended after defendant’s trial counsel informed the court that he had a doubt as to defendant’s competency to stand trial. (§ 1368.) Three years later, the trial court declared defendant not competent to stand trial, and, he was committed to the state hospital. Ultimately, on September 15, 2015, the trial court reinstated the criminal proceedings after declaring that defendant’s competency to stand trial had been restored.

A jury trial was held in January 2016. Both the victim and a gas station security guard testified concerning an incident that occurred on June 3, 2011, at 5:00 p.m., during which defendant, armed with a knife, attempted to enter the victim’s car while the victim and her young child were in the car stopped at a gas station. The victim was fully in the driver’s seat, when defendant held a knife against her and repeatedly told her to move over and give him her keys. Defendant and the victim struggled over the keys that were in the victim’s hand, and at one point, defendant grabbed the keys but the victim was able to grab them back. To the people standing in the station, Brown yelled, “He’s got a knife. Somebody help me.” The gas station security guard ran towards the victim’s car and saw defendant holding a knife to the victim. The security guard drew his gun and told defendant to drop the knife and come out of the car. As the security guard got closer, defendant pushed his knife onto the floorboard and under the driver’s seat. After defendant exited the car, the security guard handcuffed him. In his defense, defendant testified he had “ducked into” the victim’s car because he was attempting to hide from a man who had pointed a gun at him from a moving car traveling in the street. Defendant sat in the driver’s seat, with one foot inside the car and one foot outside the car, while the victim was seated somewhere in the middle of the front seat. Defendant had not drawn his knife, and, he did not touch or threaten the victim with a knife, nor touch or ask for the car keys. According to defendant, the victim “went hysterical,” and yelled loudly, “help or something,” but she did not say anything directly to defendant and she never hit the car horn. When the security guard approached the car, defendant did not want his knife found on his person, so he pulled it out and threw it inside the car; he never used the knife in any “interaction” with the victim. Defendant never intended or tried to take the victim’s car, or to rob or kidnap her. The jury was shown a videotape of approximately three minutes in length in which at approximately two and a half minutes into the videotape the victim is seen entering her car and then defendant is seen bent over “into the car,” and at three “minutes and 14 seconds” defendant is on the ground and the security guard is pulling out his handcuffs and handcuffing defendant. The videotape had no audio and did not show what occurred inside the victim’s car.

Following deliberations, the jury was unable to reach a verdict on the attempted kidnapping charge (count one); the court declared a mistrial as to count one, and the charge was later dismissed at the prosecutor’s request. The jury found defendant guilty of attempted carjacking (count two) and attempted second-degree robbery (count three). The jury also found true the weapon-use allegations related to counts two and three. Following the waiver of defendant’s right to a jury trial, the court held a bench trial and found true all of the prior conviction allegations.

At sentencing, the trial court struck the prior conviction findings under section 667.5, subdivision (b), for sentencing purposes. The court explained its reasons for sentencing defendant to an aggregate term of 15 years, consisting of nine years (the aggravated term of four and a half years doubled for a prior strike conviction) on the attempted carjacking conviction (count two), plus one year for the weapon-use allegation related to count two (§ 12022, subd. (b)(1)), plus five years for a prior serious felony conviction (§ 667.5, subd. (a)(1)). The court imposed but stayed sentences on the attempted second-degree robbery conviction (count three) and the related weapon-use allegation. Defendant was awarded presentence credit of 1,784 actual days in custody, plus 1,784 days local conduct credit, for a total of 3,568 days of credit for time served including time in the hospital during his competency restoration.

Defendant’s appellate counsel has filed a brief raising no issues and asks us to independently review the record under People v. Wende (1979) 25 Cal.3d 436 (Wende). As required under People v. Kelly (2006) 40 Cal.4th 106, 124, we affirmatively note appellate counsel has informed defendant of his right to file a supplemental brief and he has not filed such a brief. We have independently examined the entire record in accordance with Wende, and agree with appellate counsel that there are no issues warranting further briefing.

DISPOSITION

The judgment is affirmed.

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Jenkins, J.

We concur:

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McGuiness, P. J.

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Pollak, J.