Filed 3/30/21 P. v. White CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DE RRICK D EWAYNE WHITE

,

Defendant and Appellant. B 306077

(Los Angeles County Super. Ct. No. YA095380 )

APPEAL from a j udgment of the Superior Court of Los
Angeles County

, Victor L. Wright , Judge

. Affirmed

. William G. Holzer , under appointm ent by the Court of
Appeal, for Defendant and Appellant

. No appearance by Plaintiff and Respondent.

___________2 Derrick Dewayne White pleaded no contest to one count of
robbery (Pen. Code, § 211) and admitted he had been armed with
a firearm during t he offense (Pen. Code, § 12022.5, subd. (a))
pursuant to a negotiated agreement for a seven

- year state prison
term. After White failed to appear on his surrender date, the
court sentenced White to nine years in state prison, imposing the
upper term of fiv e years for robbery, rather than the middle term
of three years , and a consecutive term of four years (the middle
term) for the firearm enhancement

. No arguable issues have been identified following review of
the record by White ’s appointed appellate couns el or our own
independent review. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

White was charged in a felony complaint filed December 23,
2016 with the robbery of Amanda Wilson and Alicia Cerda on
December 13, 2016 with a special allegation as to both cou nts that he had personally used a handgun within the meaning of
Penal Code section 12022.53, subdivision (b). A first amended
felony complaint filed January 11, 2017 alleged that White and

Scott Nobl e had committed both robberies . The amended
complaint a gain alleged White had personally used a handgun
during both offenses and alleged as to Nobl e a principal had been
armed within the meaning of section 12022, subdivision (a)(1).
As established during the colloquy leading to White’s plea,

White and Noble a greed to rob Wilson and Cerda. While Noble,

Wilson and Cerda were seated in Wilson’s parked automobile,
White opened a rear passenger door, removed a handgun from his
waistband and said, “This is a robbery. Give me everything you

have.” White took a desi gner handbag containing $4,000 from3

Wilson and smart phones from Cerda and Noble. He later
returned Noble’s smart phone to him.
On May 31, 2018 White agreed to plead no contest to one of
the robbery counts. The court granted the prosecutor’s motion to

a mend the complaint to allege White had personally used a
firearm pursuant to Penal Code section 12022.5, subdivision (a),
and White admitted the allegation. The court immediately
sentenced White pursuant to the negotiated agreement to a

seven

- year state pr ison term, the middle term of three years for
robbery and a consecutive term of four years for the firearm

enhancement. At the same time White also plead ed no contest to evading a peace officer (Veh. Code, § 2800.2), a charge from a

separate case, and was sentenced to a concurrent term of 16

months for that offense. The remaining robbery count and

firearm

- use allegations were dismissed.
The court agreed to continue White’s surrender date to August 27, 2018 pursuant to what is known as a Cruz waiver. 1 The court advised White, “Mr. White. You have a right to start
serving your sentence today. Do you agree if the court continues

1 P enal Code section 1192.5 permits a defendant to withdraw

a plea if the trial court disavows its approval of the plea
agreement. In People v. Cruz (1988) 44 Cal.3d 1247 the Supreme
Court held the defendant retains this ability even if the trial

court ’ s disapproval of the plea agr eement was prompted by the
defendant ’ s failure to appear for sentencing. ( Id. at pp. 1253

- 1254.) However, a defendant may expressly waive his or her rights under section 1192.5 when entering the plea ; a nd

, “ if the
defendant willfully fails to appear for sentencing the trial court

may withdraw its approval of the defendant ’ s plea and impose a
sentence in excess of the bargained

- for term

. ” ( Cruz

, at p. 1254,
fn. 5.) Thus, a Cruz waiver.4

the surrender date until August 27, that if you fail to appear o n that date for any reason, the court would no longer be bound by
the sentence agreement and you could be sentenced to serve up to
the maximum sentence, which is 15 years in prison?” White
responded, “Yes, sir.”
On August 27, 2018, with White present, the court
continued the surrender date to September 28, 2018. White
failed to appear on that date. White’s counsel informed the court

White’s half

- brother had been killed and White was attending the

funeral services. The court issued a no

- bail bench warrant.
White was arrested on a bench warrant pick

- up in late

Oc tober 2019 and appeared in court on October 31, 2019. At the
sentencing hearing on January 3 0, 2020, White explained
through counsel that his extended absence was the result of
having been left as the sole responsible parent for his young child

and he had been unable to arrange for the child’s care. The court

indicated it understood White’s situation was difficult but stated
it was White’s responsibility to communicate with counsel and
the court and see if some appropriate accommodation could be

made. Ab sence for a year without contact was not appropriate.
Based on its finding of a violation of the Cruz waiver, the
court sentenced White to a state prison term of nine years: the
upper term of five years for robbery plus a consecutive middle

term of four years for the firearm enhancement. The sentence for
the other offense was left to run concurrently with the robbery

sentence. White was awarded 174 days of custody credit.
White filed a notice of appeal on April 22, 2020.

DISCUSSION
We appointed counsel to represent White on appeal. After
reviewing the record, counsel filed a brief raising no issues. On5

September 20, 2020 counsel wrote White and advised him he had
30 days within which to submit any contentions or issues he

wished the court to consider. We sent a similar notice to White
on September 21, 2020. We have received no response.
We have examined the record and are satisfied appellate

counsel for White has complied with counsel ’ s responsibilities
and there are no arguable issues. ( Smith v. Ro bbins (2000)

528 U.S. 259, 277

- 284; People v. Kelly (2006) 40 Cal.4th 106, 118

- 119; People v. Wende (1979) 25 Cal.3d 436, 441

- 442.)

DISPOSITION

The judgment is affirmed.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.