P.
v. Davis>



















Filed 5/15/13 P. v. Davis CA2/6

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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
SIX




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THE PEOPLE, Plaintiff and Respondent, v. JEREMY A. DAVIS, Defendant and Appellant.

2d Crim. No. B239808 (Super. Ct. No. 2010029929) (Ventura County)

Jeremy A. Davis appeals
from a postjudgment order denying a motion
to withdraw his plea (Pen. Code, § 1018) href="#_ftn1" name="_ftnref1" title="">[1] after he pled no contest to oral copulation of
an unconscious person (§ 288a, subd. (f)) and was granted probation. The trial court found that the plea was
freely, voluntarily and knowingly entered.
We affirm.

Facts

Appellant drank too
much at an August 21, 2010
barbecue and decided not to drive home.
Lacy N., a Navy coworker who had no romantic relationship with
appellant, let appellant sleep on her couch.
Lacy awoke in the middle of the night to find appellant orally
copulating her. Lacey pushed him off,
ran to the bathroom, and called 911.

Appellant told Ventura
Police Officer Jeff Brooke that he fell asleep on the couch and awoke upstairs in Lacey's
bedroom. Appellant admitted that Lacey
was asleep and that he orally copulated Lacey for five minutes before she woke
up.

Procedural History

After Ventura County
Deputy Public Defender Randy Tucker was appointed to represent appellant,
appellant brought two Marsden motions (People v. Marsden (1970) 2
Cal.3d 118) because he and Tucker could not agree on how to proceed. Appellant claimed that he was innocent. Tucker was ready for trial and believed
appellant had "a strong defense."href="#_ftn2" name="_ftnref2" title="">[2]

On July 29, 2011, appellant consulted Tucker and
signed a written plea agreement providing that he would plead no contest and
receive probation. On October 17, 2011, the trial court
relieved Tucker and appointed a conflict defense attorney (CDA) to investigate
whether appellant had grounds to withdraw the plea. At the January 19, 2012 sentencing hearing, the CDA stated that a
motion to withdraw the plea would not be made.
(See People v. Eastman (2007) 146 Cal.App.4th 688, 699
[substitute counsel not required to make groundless motion to withdraw
plea].)

The trial court granted
probation plus 314 days county jail with credit for time served. Appellant filed a notice of appeal and
certificate of probable cause stating that he was not given the opportunity
explain why he wanted to withdraw his plea.
The motion to withdraw the plea was heard on July 9, 2012 and denied August 7, 2012.
(§ 1018.) At the hearing,
appellant testified that "Mr. Tucker chose a defense that even I could see
through. . . . [¶] . . . [Tucker] continuously said this was the best
defense."

Discussion

A postjudgment motion to
withdraw a plea is an exceptional remedy and may be granted "'only upon a
strong and convincing showing of the deprivation of legal rights by extrinsic
causes." [Citation.]" (People v. Castaneda (1995) 37 Cal.App.4th
1612, 1617.) Good cause must be shown by
clear and convincing evidence. (>Ibid.)

Appellant claims that he
was forced to plead no contest when the trial court denied the Marsden
motions on March 17, 2011
and May 2, 2011. Appellant, however, did not enter the change
of plea until July 29, 2011,
after he was advised that the maximum sentence waseight years state prison,
that he would be required to register as a sex offender, and that he could be
prosecuted by the Navy. The change of
plea colloquy clearly shows that appellant entered the plea knowingly, freely,
voluntarily, and without duress.

A year later, at the July 9, 2012 hearing on the motion to
withdraw the plea, appellant stated:
"I signed the plea agreement, only because of a family issue that
had just happened." Appellant
blamed the change of plea on the victim, his attorney, the police, and the
United States Navy. In a letter to the
trial court, appellant wrote that the victim assaulted him at the party,
"effectively kidnapping me in my disarmed state," and tried to lure
him upstairs to her bedroom.

Appellant
argues that the plea must be set aside because his attorney was not willing to
proceed to trial with a credible "defense" that would prove
appellant's innocence. "[C]ounsel
is captain of the ship. . . . 'When the
accused exercises his constitutional right to representation by professional
counsel, it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the
accused surrenders all but a handful of "fundamental" personal rights
to counsel's complete control of defense strategies and tactics.'
[Citations.] It is for the defendant to
decide such fundamental matters as whether to plea guilty . . . .' " (In re Horton (1991) 54 Cal.3d 82,
95.)

The trial court found
that appellant freely and voluntarily entered the change of plea "without
any force, coercion, or ambiguousness about it." We concur.
When the change of plea was entered, appellant was asked "Are you
sure you wish to do this?"
Appellant responded, "Yes, sir." Appellant negotiated a very favorable plea in
exchange for probation. The plea may not
be withdrawn simply because appellant changed his mind. (People v. Huricks (1995) 32
Cal.App.4th 1201, 1208; People v. Knight (1987) 194 Cal.App.3d 337,
344.) Nor has appellant shown that the
denial of his motion to withdraw the plea was an abuse of discretion. (People v. Shaw (1998) 64 Cal.App.4th
492, 496.)

The judgment is
affirmed.

NOT TO BE PUBLISHED.





YEGAN,
J.



We
concur:





GILBERT, P.J.





PERREN, J.





Bruce A. Young, Judge



Superior Court County of Ventura



______________________________





California Appellate
Project, under appointment by the Court of Appeal, Jonathan B. Steiner,
Executive Director and Suzan B. Hier, For Defendant and Appellant.



Kamala D. Harris,
Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E.
Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervising
Deputy Attorney General, Connie H. Kan, Deputy Attorney General, for Plaintiff
and Respondent.