People v. Garcia CA1/2

Filed 5/3/16 P. v. Garcia CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A144720 v. DAVID GARCIA, (Sonoma County Super. Ct. No. SCR647980) Defendant and Appellant.

Defendant David Garcia was caught possessing gang-related writings in violation of the terms of probation imposed on him following two convictions for assault. After conferring with a court-appointed attorney, defendant admitted the violation. One month later, he obtained a new attorney and moved to withdraw his admission, arguing his previous attorney did not advise him about potential defenses to the charged violation, or seek an indicated sentence from the trial court. The trial court denied his motion. We affirm. BACKGROUND In April 2014, defendant was charged by felony complaint with three counts of assault (Pen. Code, § 245, subd. (a)(1), (4)),1 with enhancements for committing the assaults for the benefit of, or at the direction of, a criminal street gang (§ 186.22, subd. (b)(2)). Defendant pleaded no contest to two counts of assault and one count of active participation in a criminal street gang (§ 186.22, subd. (a)). At a September 30 hearing,

1 All further unspecified statutory references are to the Penal Code.

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the trial court imposed formal probation for 36 months. The terms of defendant’s probation specified he was not to possess or use alcohol or marijuana without a valid prescription. He was also prohibited from possessing any drawings, writings, or pictures concerning membership in a criminal street gang. Defendant was represented by Joe Rogoway, a private defense attorney, at both his plea hearing and sentencing hearing. Less than two weeks after he was granted probation, defendant was charged with violating the terms of his probation after law enforcement found him in possession of alcohol and marijuana during a traffic stop. At a subsequent hearing on October 15, Defendant was represented by Lynn Stark-Slater of the Sonoma County Public Defender’s Office. Defendant admitted to violating the terms of his probation at the hearing. The trial court reinstated probation and directed that defendant serve 30 days in the county jail, though it permitted defendant to serve his jail sentence on weekends to accommodate his work schedule. The court told defendant that 30 days in jail was “extremely lenient” and admonished him that “if they catch you with booze and/or marijuana or any other violation again, I’m going to send you to prison. When I say that to someone I mean it. Do you understand that?” Defendant said he understood. Eleven days later on October 26, 2014, defendant was caught transporting gang- related writings, known as “kites,” while leaving from one of his weekend stints in jail. The kites related to the transportation of marijuana into the jail, and referenced defendant and one of his codefendants. At a hearing two weeks later on November 12, defendant was again represented by Stark-Slater of the public defender’s office, and admitted to violating his probation by possessing gang-related writings. Defendant informed the court he had discussed the matter with Stark-Slater and said he understood that by admitting to the violation, he was foregoing his right to a contested hearing. The matter was continued to December 12 for sentencing. On the day scheduled for sentencing, Joe Rogoway, defendant’s first attorney, substituted in as counsel in place of the public defender. Defendant then filed a motion to withdraw the admission to the probation violation he made on November 12. According to an accompanying declaration, Rogoway claimed that Stark-Slater “did not discuss with