People v. King CA1/2

Filed 2/2/23 P. v. King CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A164289 v. KENNETH LEE KING, (Solano County Super. Ct. No. FCR352975) Defendant and Appellant.

Defendant Kenneth Lee King’s counsel requests that this court independently review the record pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). King was informed of his right to file a supplemental brief and has not done so. Upon our independent review of the record pursuant to Wende, we conclude there are no arguable appellate issues requiring further briefing and affirm. BACKGROUND A felony complaint filed on July 22, 2020, charged King with one count of felony identifying information theft with a prior. (Pen. Code, § 530.5, subd. (c)(2).)1 On May 21, 2021, the parties reached a plea agreement in this case and another (case No. FCR351744), filed in January 2020, in which King had

1 The underlying facts of the offense are not relevant to this appeal.

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been charged with a separate violation of section 530.5, subdivision (c)(2). The plea agreement specified that King would plead no contest to one count of felony identifying information theft in each of the cases and would be sentenced to “16 m concurrent, 8 m on home detention, LCA, ASP . . . [¶] 8 m supervision.” King agreed to a provision known as a Cruz waiver (People v. Cruz (1988) 44 Cal.3d 1247) which stated: “I understand and agree that if I fail to appear on the date set for . . . sentencing without a legal excuse, . . . my plea will become an ‘open plea’ to the court, I will not be allowed to withdraw my plea, and I may be sentenced up to the maximum term of imprisonment . . .” of three years and eight months.2 At the hearing on May 21, King confirmed he had reviewed the plea form with his attorney, understood his rights and waived them, and understood the possible consequences of the plea. The trial court accepted King’s pleas and set sentencing for July 1, 2020. After King verbally promised to return to court, the court told him, “If you fail to make that promise, the deal you’ve reached, eight months in/eight months out, the A.S.P., I’m not bound on that. If you keep your promise, then I’m bound to keep mine.” King said he understood. On July 1, however, King did not appear for sentencing. His attorney had “no representations” and the court issued a no-bail bench warrant. On November 15, King appeared in court and his attorney stated that King had met with probation after the May hearing to get his ankle monitor set up and failed to appear for sentencing because “he was under the