P. v. Nicholson CA3

Filed 6/25/13 P. v. Nicholson CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C071918

Plaintiff and Respondent, (Super. Ct. No. 12F00334)

v.

TERA LEE NICHOLSON,

Defendant and Appellant.

Defendant Tera Lee Nicholson pled no contest to unlawfully driving under the influence of alcohol and the enhancements of causing bodily injury to more than one 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

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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 defense counsel. With prior counsel’s assistance, defendant 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 Mustang”; (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