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

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

THE PEOPLE,

Plaintiff and Respondent,

v.

DERRICK DEWAYNE WHITE,

Defendant and Appellant.

 B306077

 (Los Angeles County

 Super. Ct. No. YA095380)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Victor L. Wright, Judge. Affirmed. 

William G. Holzer, under appointment by the Court of 

Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent. 

___________
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Derrick Dewayne White pleaded no contest to one count of 

robbery (Pen. Code, § 211) and admitted he had been armed with 

a firearm during the 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 five 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 counsel 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 counts 

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 Noble had committed both robberies. The amended 

complaint again alleged White had personally used a handgun 

during both offenses and alleged as to Noble 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 agreed 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 designer handbag containing $4,000 from 
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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 

amend 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 prison 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 pleaded 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 Penal 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 agreement 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; and, “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.
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the surrender date until August 27, that if you fail to appear on

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 

October 2019 and appeared in court on October 31, 2019. At the

sentencing hearing on January 30, 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. Absence 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. On 
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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. Robbins (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.