P. v. Nicholson
Filed 6/25/13 P. v. Nicholson CA3
NOT TO BE PUBLISHED
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
TERA LEE NICHOLSON,
Defendant and Appellant.
C071918
(Super. Ct. No. 12F00334)
Defendant
Tera Lee Nicholson pled no contest to unlawfully driving under the influence of
alcohol and the enhancements of causing bodily
victim and causing great bodily injury to one victim. Before sentencing, defendant moved to
withdraw her plea. The court denied her
motion and sentenced her to seven years four months in prison. On appeal, defendant contends the court
abused its discretion by denying her motion
to withdraw her plea because her prior counsel was constitutionally
ineffective. Disagreeing, we affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
In January
2012, emergency personnel responded to a car crash at Folsom Lake Bowl. When they arrived, they found a severely
damaged car inside the patio area. The
police found defendant next to the driver’s door and noticed a “strong odor of
an alcoholic beverage.†Defendant told
the officers she was driving and admitted she had been drinking.
Defendant
was charged with driving under the influence of alcohol. It was further alleged that she caused bodily
injury to more than one victim and that she caused great bodily injury to one
victim. Following two public defenders,
John Casey (hereafter prior counsel) was substituted in as
accepted a no contest plea agreement
and the matter was referred to the Sacramento County Probation Department. Defendant admitted to the probation officer
she was driving the car the night of the accident.
On the day
of her sentencing hearing, defendant -- represented by new counsel Donald
Masuda -- moved to withdraw her plea.
Defendant contended that prior counsel was constitutionally ineffective
for failing to adequately investigate her case.
She argued that further investigation was warranted because: (1) “[i]mmediately after the incident,
officers were unable to locate any witness who saw [defendant] operating the
Mustangâ€; (2) the one victim who identified defendant as the driver was purportedly
a drug user and did not make an identification until a month after the
incident; (3) defendant owned a Droid X cell phone at the time of the accident,
not a Nokia phone, which is what was found in the center console of the
vehicle; (4) the driver’s seat air bag deployed fine white powder and there was
no report of any white powder on defendant or her personal belongings; and (5)
she did not sustain injuries consistent with what would be expected in an air
bag deployment. Defendant filed her own
personal declaration and declarations of others to support these claims.
Defendant’s
declarations also included the following assertions: she had asked prior counsel to conduct an
investigation, he initially assured her he would investigate the possibility
that someone else was driving her car that night, and after the plea she found
out no investigation had been made.
Defendant “told [prior counsel] specifically that the phone found in the
[car] was not [hers]†and that, prior to entering her plea, prior counsel told
her the results of the investigation “did not point to someone else driving
that night,†which was why she decided to take the plea agreement. Prior counsel advised her to tell the
probation officer she was driving the car to demonstrate remorse.
In
opposition, the People submitted declarations of prior counsel. He declared that defendant was upset by the
length of her prison term but never gave a substantive reason for why. Before he was retained, he advised defendant
it was unlikely that he would be able to secure a better offer. After he was retained, the prosecutor emailed
him that if defendant did not take the current plea, the prosecutor would add
further enhancement allegations. He met
with defendant and explained the best choice for her was to pursue mitigation
material. Later that month, he
unsuccessfully asked the court and prosecutor for a lower sentence. Defendant was emotional when he was telling
her this, and he “reminded her . . . she did not have to accept the offer if
she didn’t want to.†Defendant never
told him she doubted she was the driver or that the cell phone was not
hers. He never told defendant he would
investigate whether someone else was driving the car or that an investigation
had actually occurred. He did not
instruct defendant to tell the probation officer she was driving.
The court
denied defendant’s motion to withdraw her plea, finding that “[t]o the extent
disputes or conflicting statements exist between the declarations of the
defendant and those of [prior counsel], I credit [prior counsel]’s statements.â€
DISCUSSION
Defendant
contends the trial court abused its discretion in refusing to let her withdraw
her plea because her prior counsel was ineffective. She attempts to prove her contention by reasserting
the contents of her declarations and argues that because “a real defense
existed, supported both by forensic evidence as well as witness testimony,â€
prior counsel was ineffective for failing to investigate. Defendant’s argument is without merit.
“
‘Withdrawal of a . . . plea is left to the sound discretion of the trial
court. A denial of the motion will not
be disturbed on appeal absent a showing the court has abused its discretion.’ †(People v. Huricks (1995) 32
Cal.App.4th 1201, 1208; see Pen. Code, § 1018.) “ ‘The power to judge credibility of
witnesses, resolve conflicts in testimony, [and] weigh evidence . . . is vested
in the trial court. On appeal all
presumptions favor proper exercise of that power.’ †(People
v. James (1977) 19 Cal.3d 99, 107.)
Here, the trial court made an explicit credibility determination in
favor of prior counsel’s declarations; therefore, we accept as true the
statements made by prior counsel in his declarations and disregard conflicting
statements of defendant.
With the
above principles in mind, we examine whether prior counsel was ineffective to
determine whether the court abused its discretion. “ ‘ “[I]n order to demonstrate ineffective
assistance of counsel, a defendant must first
show counsel’s performance was ‘deficient’
because his ‘representation fell below an objective standard of reasonableness
. . . under prevailing professional
norms.’ [Citations.] Second, he must also show prejudice flowing
from counsel’s performance or lack thereof.†’
†(People v. Mitchell (2008)
164 Cal.App.4th 442, 466-467.)
Prior
counsel declared that defendant never told him she thought someone else was
driving, that the phone in the car was not hers, or that she wanted a secondary
investigation. To the contrary,
defendant told him on more than one occasion that she was the driver. Based on
these facts, prior counsel would have had no reason to think that an additional
investigation was necessary. Therefore,
his representation of defendant did not fall below an objective standard of
reasonableness. Based on these facts,
which the trial court credited, it was well within its discretion to deny
defendant’s motion to withdraw her plea.
DISPOSITION
The
judgment is affirmed.
ROBIE , J.
We concur:
NICHOLSON , Acting P. J.
DUARTE , J.
