Filed 4/29/21 P. v. Nolan CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DEMPSEY NOLAN, JR.,

Defendant and Appellant.

 B306447

 (Los Angeles County

 Super. Ct. No. YA033029)

THE COURT:

In 1997, Dempsey Nolan, Jr., (appellant) was charged with 

first degree residential burglary (Pen. Code, § 459). The 

information alleged that he had suffered two prior serious felony 

convictions for first degree burglary within the meaning of Penal 

Code sections 667, subdivisions (b) through (i) and 1170.12, 

subdivisions (a) through (e). As alleged, the first prior conviction 

occurred on January 10, 1989, in case No. A647353, and the 

second prior conviction occurred on April 4, 1989, in case 

No. A920347.
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In 1998, appellant was convicted by a jury of the 1997 

burglary charge. The trial court imposed a sentence of 25 years 

to life under the “Three Strikes” law. Subsequently, the Court of 

Appeal affirmed the conviction.

Appellant filed a petition for writ of habeas corpus. He 

argued that he should be resentenced as a second-strike offender. 

Per his petition, he entered a guilty plea in case No. A647353 on 

January 10, 1989, pursuant to a plea agreement that was 

designed to resolve case No. A647353 (first-degree burglary

charged in Compton), case No. 648728 (sexual battery charged in 

Compton), and case No. A920347 (first degree-burglary charged 

in Torrance). The agreed sentence was five years in state prison

for all three cases combined. Appellant was sentenced in case 

No. A647353 on January 24, 1989. Then, on April 4, 1989, he 

was sentenced to a concurrent four-year term in case 

No. A920347. Appellant represented that he was not present on 

April 4, 1989, he never entered a guilty plea in case No. A920347, 

and he never waived his right to a jury trial and confrontation of 

his accusers, and he never waived his right against selfincrimination. As a result, he claimed that the prior serious 

felony conviction in case No. A920347 was invalid and did not 

support the third strike sentence.

The trial court denied the petition. In the minute order, it 

stated, “[Appellant] asserts that the strike prior in case 

[No.] A920347 could not be used to sentence [him] pursuant to 

the Three Strikes law insofar as the legal record reflects that he 

entered a not guilty plea on [October 25, 1988]. While this is 

correct, the abstract of judgment reflects that he was 

subsequently sentenced to [four] years in state prison on [April 4, 

1989]. A common sense reading of the [appellant’s] exhibits 
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establish[es] that subsequent to his arraignment on [October 25, 

1989], [he] changed his plea and was convicted of first degree 

residential burglary in case [No.] A920347.”

Appellant now appeals. 

DISCUSSION

Appointed counsel filed a brief stating that there are no 

arguable issues and requesting that we follow the procedure in 

People v. Serrano (2012) 211 Cal.App.4th 496. On January 8, 

2021, we notified appellant of counsel’s no merit brief and 

advised him that he had 30 days to file a supplemental brief or 

letter stating any grounds for appeal. Appellant filed a 

supplemental brief. As established in People v. Cole (2020) 52 

Cal.App.5th 1023, 1039–1040, our sole task is to review the 

arguments that he has raised.

He does not argue that the trial court erred. Rather, he 

reargues his petition and asserts he is entitled to relief because 

he did not enter a guilty plea in case No. A920347, he was not 

present at a hearing on April 4, 1989, and, except for the abstract 

of judgment, there is no record that case No. A920347 was 

adjudicated. Because he has not shown prejudicial error, we 

must affirm. (Cal. Const., art. VI, § 13.)

To be complete, we note that the trial court made a factual 

finding that appellant changed his plea in case No. A920347 to 

guilty and was convicted and sentenced accordingly. Impliedly, 

appellant is challenging the sufficiency of the evidence to support 

the trial court’s factual finding. When reviewing the sufficiency 

of the evidence, we determine whether there is substantial 

evidence, contradicted or uncontradicted, which will support the 

trial court’s factual determinations. (Ermoian v. Desert Hospital

(2007) 152 Cal.App.4th 475, 501.) When he entered his plea in 
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case No. A647353, the prosecutor stated that under the terms of 

the deal, appellant would be sentenced to four years in case 

No. A647353 and a consecutive one-year sentence in the sexual 

battery case, both of which were in Compton, and that the fiveyear sentence would “be concurrent to the time he receives in 

[case No. A920347 in Torrance], which would be no more than 

five years.” The prosecutor explained that “in the next week or so 

[appellant is] going to be pleading guilty to a residential burglary 

in Torrance. And I believe the case number is 920347.” The trial 

court asked if it would be “five years all around,” and the 

prosecutor said that was correct. The prosecutor informed the 

trial court that the deal had been explained to appellant 

“downstairs,” at which point the prosecutor then asked appellant, 

who was in court, if he understood the deal. Appellant said, “Yes 

sir.” Appellant was sentenced in case No. A647353 and the 

sexual battery case as agreed. The April 4, 1989, minute order in 

case No. A920347 stated that the case was called for trial, 

appellant and his attorney were present and waived the right to 

trial, and appellant was sentenced to the mid-term of four years 

in state prison. (The bottom portions of the two pages of the 

minute order are cut off and therefore missing.) Finally, there is 

an abstract of judgment showing that on April 4, 1989, appellant 

was sentenced consistent with the minute order. Because this 

evidence supported the trial court’s factual finding, and because 

it was reasonable in nature, credible, and of solid value (ibid.), we 

conclude that the record contained substantial evidence that 

appellant changed his plea to guilty and was convicted in case 

No. A920347. 
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DISPOSITION

The order denying appellant’s petition for writ of habeas 

corpus is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________________________________________

LUI, P. J ASHMANN-GERST, J. HOFFSTADT, J.