Nieber

BACKGROUND AND PROCEDURAL FACTS

Nieber and co-defendant Lawrence Johnson were charged with

murder, 3 with the special circumstance that it occurred in the commission of a burglary and a robbery. After the preliminary hearing, the court found there was insufficient evidence that Nieber was a major participant, and it dismissed the allegation. The People filed a third amended information that removed the special circumstance and the felon in possession of a firearm charges. The case proceeded to trial, and the jury convicted Nieber on all counts. A. The Crimes We take the facts of the underlying conviction from our previous opinion, People v. Nieber (Jan. 21, 2020, D073059 [nonpub. opn.]): “At approximately 11:45 a.m. on May 11, 2016, S.P. went to the grocery store and then returned to the house on Tommy Drive (the Tommy Drive residence) where he had been staying with his brother, J.P, and three other individuals, B.A., B.W., and W.S. No one else was home at the Tommy Drive [r]esidence at the time. “S.P. shut the front door, set his groceries down on the counter, and went to the back room of the house to check his cell phone. As he was doing so, several men suddenly came into the…