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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

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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.”
                                       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,” prior
counsel was ineffective for failing to investigate. Defendant’s argument is without merit.



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       “ ‘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.




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                                   DISPOSITION
     The judgment is affirmed.



                                            ROBIE   , J.



We concur:



     NICHOLSON        , Acting P. J.



     DUARTE        , J.




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