People v. White CA1/1

Filed 6/23/21 P. v. White CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A161288 v. NICOLE AYLENE WHITE, (Lake County Super. Ct. No. CR953975) Defendant and Appellant.

Defendant entered a no contest plea to one count of burglary of an occupied residential structure in exchange for a prison term of two years. In addition, defendant agreed that if she failed to appear for sentencing without a legal excuse, her plea would become an open plea to the court, and it could sentence her to the maximum term of six years. Defendant subsequently sought to withdraw her plea. Appointed independent counsel reviewed defendant’s case and found no legal basis to withdraw the plea. After defendant failed to appear for sentencing, the court imposed a six-year prison term. Defendant has filed her own notice of appeal challenging the trial court’s denial of her motion to withdraw her plea and the imposition of the six-year sentence, and because her trial counsel had a conflict of interest. We affirm.

BACKGROUND An information charged defendant with two counts of burglary of an inhabited dwelling house. (Pen. Code,1 §§ 459, 462, subd. (a).) It was further alleged as to both counts that burglary is a violent felony within the meaning of section 667.5, subdivision (c). Pursuant to a plea agreement, defendant pleaded no contest to count I, first degree residential burglary. In exchange for her plea, defendant was promised a prison term of two years and dismissal of count II. Before pleading no contest, defendant signed and initialed a plea form acknowledging and waiving her rights to a court or jury trial, to confront and cross-examine witnesses, to produce evidence and to present a defense, to testify in her own defense, and her privilege against self-incrimination. In response to the court’s questions, defendant stated she had read and understood the plea form, initialed the boxes, signed the form, and did not have any questions. Defendant agreed, both in open court and on the plea form, that under People v. Cruz (1988) 44 Cal.3d 1247, if she failed to appear on the date set for sentencing without a legal excuse, her plea would become an “open plea,” she could be sentenced to the maximum term, and she would not be allowed to withdraw her plea. Defendant stipulated to a factual basis for the plea based on the prosecutor’s oral recitation of the facts that, “On May 21st, 2019, the defendant entered an occupied residence, . . . with the intent to commit larceny.” The court made “the findings and orders contained in the plea form”—that is, defendant had read or had read to her the plea form and understood the initialed items in the form, she understood the nature of the