Filed 8/25/23 P. v. Nichols CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSEPH NICHOLS, III,

Defendant and Appellant.

 B326893

 (Los Angeles County

 Super. Ct. No. PA007472)

APPEAL from a postjudgment order of the Superior Court 

of Los Angeles County, David Walgren, Judge. Affirmed. 

Joseph Nichols, in pro. per., for Defendant and Appellant. 

Richard B. Lennon, under appointment by the Court of 

Appeal, for Plaintiff and Respondent.

______________________
2

Joseph Nichols, III, appeals the superior court’s order 

granting in part and denying in part his petition for resentencing 

pursuant to Penal Code section 1172.75 (former section 1171.1).1 

No arguable issues have been identified following review of the 

record by Nichols’s appointed appellate counsel. We also have 

identified no arguable issues after our own independent review of 

the record and analysis of the contentions presented by Nichols in 

his supplemental brief. We affirm.

PROCEDURAL BACKGROUND

A jury in 1993 convicted Nichols of kidnapping to commit 

robbery (§ 209, subd. (b)), robbery (§ 211), dissuading a witness 

by force or violence (§ 136.1, subd. (c)(1)) and evading a police 

officer (Veh. Code, § 2800.2) and found true firearm-use 

enhancement allegations (§ 12022.5, subd. (a)). Nichols admitted 

suffering a prior serious felony conviction within the meaning of 

sections 667, subdivision (a), and having served a prior prison 

term within the meaning of section 667.5, subdivision (b). 

Nichols was originally sentenced to an aggregate 

determinate state prison term of 18 years eight months with a 

consecutive indeterminate term of life: A life term for aggravated 

kidnapping plus the middle term of four years for the firearm-use 

enhancement; a consecutive upper term of four years for 

dissuading a witness by force or violence plus four years for the 

firearm-use enhancement; and a consecutive term of 

eight months (one-third the middle term of two years) for evading 

a police officer; plus five years for the prior serious felony 

conviction and one year for the prior prison term enhancement. 

The court imposed and stayed pursuant to section 654 the upper 

1 Undesignated statutory references are to this code.
3

term of five years for robbery plus four years for the firearm-use 

enhancement. 

We affirmed Nichols’s convictions on appeal (People v. 

Nichols (1994) 29 Cal.App.4th 1651), but modified his sentence to 

stay the firearm-use enhancement on the count for dissuading a 

witness, agreeing with Nichols the trial court erred in imposing

two section 12022.5 enhancements (Nichols, at p. 1658), and to 

strike the one-year enhancement under section 667.5, 

subdivision (b), agreeing with Nichols’s additional contention the 

court erred in imposing both a section 667, subdivision (a), and a 

section 667.5, subdivision (b), enhancement for Nichols’s single 

prior conviction for voluntary manslaughter. (Nichols, at 

p. 1659.)

On October 11, 2022 Nichols filed a petition for 

resentencing pursuant to former section 1171.1 (renumbered 

section 1172.75 effective June 30, 2022), seeking resentencing 

pursuant to ameliorative legislation that eliminated the 

section 667.5, subdivision (b), prior prison term enhancement for 

most prior offenses including Nichols’s prior manslaughter 

conviction, and made the enhancement for a prior serious felony 

discretionary rather than mandatory. The superior court initially 

denied the petition as premature but on November 1, 2022 

granted the petition in part, striking the one-year prior prison 

term enhancement (apparently not recognizing that this court 

had already done so in 1994). In addition, the court reaffirmed 

imposition of the upper-term sentences for robbery (stayed) and 

dissuading a witness by force or violence, noting Nichols’s prior 

convictions or sustained petitions in delinquency proceedings 
4

were numerous and of increasing seriousness.2 The court 

declined to modify any other aspect of Nichols’s sentence.3

DISCUSSION

We appointed counsel to represent Nichols on appeal from 

the denial of his postjudgment petition. After reviewing the 

record, appointed counsel did not identify any arguable issues 

and so informed this court. Appointed counsel advised Nichols on 

July 20, 2023 that he was filing a brief stating he was unable to 

find arguable issues and that Nichols could personally submit 

any contentions he believed the court should consider.

On July 31, 2023 Nichols submitted a 41-page, singlespaced handwritten supplemental brief with hundreds of pages of 

exhibits in which he raised a plethora of challenges to the validity 

of his original judgment of conviction and sentence; the 

competency and adequacy of representation provided by his trial 

counsel, appellate counsel and appointed counsel at the 

2 The superior court’s identification of aggravating factors to 

support imposition of the upper-term sentences for dissuading a 

witness and robbery was unnecessary. Section 1172.75, 

subdivision (d)(4), excepts cases in which “the court originally

imposed the upper term” from the requirement that, when

resentencing the petitioner, the court “may not impose a sentence

exceeding the middle term unless there are circumstances in

aggravation that justify the imposition of a term of imprisonment

exceeding the middle term, and those facts have been stipulated

to by the defendant, or have been found true beyond a reasonable

doubt at trial by the jury or by the judge in a court trial.”

3 The court subsequently denied Nichols’s November 21, 

2022 request to amend his October 11, 2022 petition, finding the 

request untimely because the court had already ruled on 

the petition.
5

resentencing proceedings; the fairness (bias) of the judges 

hearing his case; and the propriety of various decisions by the 

California Department of Corrections and Rehabilitation and the 

Board of Parole Hearings. Except as discussed in the following 

paragraph, none of these issues is properly before us in this 

appeal of the partial denial of Nichols’s petition for resentencing 

under section 1172.75, but must be presented with appropriate 

supporting material in a petition for writ of habeas corpus—a 

procedure Nichols has utilized on numerous occasions since this 

court affirmed his convictions in 1994. 

At the November 1, 2022 resentencing hearing Judge David 

Walgren disclosed on the record that his spouse was employed as 

a Los Angeles County deputy district attorney. Nichols contends, 

because of that relationship, it was a violation of canon 3E of the 

California Code of Judicial Ethics for Judge Walgren to preside at 

the hearing and the order denying his petition in part must be 

reversed. Nichols is mistaken. The disclosure was proper under 

canon 3E(2)(a). No objection or request for recusal was made by 

Nichols’s counsel. Under these circumstances, Judge Walgren’s 

continued participation in the case was required by Code of Civil 

Procedure section 170. (See Rothman, et al., California Judicial 

Conduct Handbook (4th ed. 2017) § 7.45, p. 461 [“[w]here a family 

member, as described in this rule, is employed in a governmental 

law office and is not in the private practice of law, the Legislature 

has made it clear that mere association in the government law 

office appearing before the judge is not a basis for 

disqualification, and it would be incorrect for a judge to do so 

absent some other factor”].)

Because no cognizable legal issues have been raised by 

Nichols’s appellate counsel or by Nichols or identified in our 
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independent review of the record, the order denying his petition 

for resentencing is affirmed. (See People v. Delgadillo (2022)

14 Cal.5th 216, 231-232; see also People v. Serrano (2012) 

211 Cal.App.4th 496, 503; see generally People v. Kelly (2006) 

40 Cal.4th 106, 118-119; People v. Wende (1979) 25 Cal.3d 436, 

441-442.)

DISPOSITION

The postjudgment order is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J. 

FEUER, J.