People v. Davis CA6

Filed 10/1/15 P. v. Davis CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H041613 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1109331)

v.

AARON JONATHAN DAVIS,

Defendant and Appellant.

Defendant Aaron Jonathan Davis appeals from an order denying his motion to vacate his plea. We affirm.

I. Procedural and Factual Background In June 2011, defendant was arrested and charged with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), possession of a firearm by a felon (Pen. Code, former § 12021, subd. (a)(1)), and possession of ammunition by a felon (Pen. Code, former § 12316, subd. (b)(1)). In August 2011, the case was set for trial on a time-not-waived basis. The last day for trial was approximately September 30, 2011. The case was assigned for trial on September 29, 2011. At that time, the prosecutor dismissed the assault with a deadly weapon charge. The trial did not proceed, however, because defense counsel, Casey

Clift, sought a continuance of trial beyond the statutory last day so that he could file a motion to suppress evidence. Over defendant’s objection, the trial court found good cause to grant the continuance pursuant to Penal Code sections 1049.5, 1050, and 1382, subdivision (a), based on Clift’s representations that the motion was important to the defense of the case and he would be ineffective in failing to file the motion. In mid-October 2011, the date set for the suppression motion, the hearing did not proceed, because Clift indicated a doubt as to defendant’s competency to stand trial. The trial court suspended criminal proceedings. In early 2012, another attorney, Sarah McCarthy, was assigned to represent defendant. After a trial on defendant’s competency, criminal proceedings were reinstated. McCarthy filed a motion to suppress evidence, which was denied. In April 2012, the parties entered into a plea agreement. The trial court indicated that if defendant pleaded guilty to the two remaining counts, he would be sentenced to credit for time served and probation, which would terminate on release. The prosecutor opposed the offer. McCarthy conveyed the indicated sentence to defendant and advised him that he should plead guilty rather than go to trial. Defendant wanted to pursue the issue of a speedy trial violation. McCarthy advised him that she did not believe the issue was meritorious and that he should discuss this issue as well as the Fourth Amendment violation with his appellate attorney. The parties stipulated to a factual basis for the plea. McCarthy also stated at the change-of-plea hearing that defendant continued to object to a violation of his speedy trial rights in spite of his plea and intended to pursue the issue on appeal. After defendant entered his no contest pleas and was sentenced, McCarthy submitted a certificate of probable cause to the trial court on the speedy trial issue. The trial court signed the certificate of probable cause and McCarthy filed a notice of appeal on behalf of defendant. Several months later, defendant learned from appellate counsel that he could not raise the issue of a speedy trial violation on appeal because he did not have a trial. 2