P. v. Gonzalez CA1/1

Filed 3/27/13 P. v. Gonzalez CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, Plaintiff and Respondent, A135200 v. ALEXIS GONZALEZ, (Napa County Super. Ct. No. CR158416) Defendant and Appellant.

Pursuant to a negotiated disposition, appellant and defendant Alexis Gonzalez pleaded no contest to one felony charge and several misdemeanor charges. At sentencing, an issue arose as to whether defendant was entitled to custody credits because he was also in violation of his parole in another case, not only because of the new charges but for unrelated reasons, as well. Defense counsel, telling the court she had advised defendant he would receive 177 days of custody credit in the instant case, made an oral motion to withdraw the plea and also asked for a continuance to research whether a writ petition was warranted or whether defendant should file a formal motion to withdraw his plea. The court denied both requests and proceeded with sentencing, denying custody credits. On appeal, defendant does not contend he should have received custody credits. Rather, he contends only that the trial court abused its discretion in denying his request for a continuance and that he received ineffective assistance of counsel (IAC). The only relief defendant seeks on appeal is a remand allowing him to move to withdraw his plea.

1

We affirm the judgment, concluding in part that defendant’s IAC claim is not properly advanced on direct appeal. BACKGROUND The facts giving rise to the charges against defendant are not relevant to the issues on appeal and we, therefore, do not recite them. On October 4, 2011, the Napa County District Attorney charged defendant with felony evading an officer (Veh. Code, § 2800.2, subd. (a), count 1), misdemeanor hit-and-run driving (Veh. Code, § 20002, subd. (a), count 2), misdemeanor driving while license was revoked or suspended (Veh. Code, § 14601.1, subd. (a), count 3), and an infraction possession of less than 28.5 grams of marijuana (Health & Safety Code, § 11357, subd. (b), count 4). The information further alleged defendant had suffered a prior felony conviction that resulted in a prison sentence (Pen. Code, § 667.5, subd. (b)). On January 17, 2012, defendant executed a written change of plea form. The form set forth the terms of the proposed disposition as follows: Defendant would plead no contest to counts 1, 2 and 3 as charged, would be sentenced to 16 months in state prison, and would waive his rights to appeal. The prosecution, in turn, would move to dismiss the remaining count and the special enhancement allegation. Defendant initialed all pertinent provisions of the form, including the advisement of the rights he was waiving, evidencing that he read and understood them. He further averred no other promises had been made to him and understood that if the court refused to follow the terms of plea bargain as stated, he would be allowed to withdraw his guilty plea. The trial court asked defendant if he had any questions about the plea form, and he said, “No.” The court also asked if he had had adequate time to discuss the negotiated disposition with his attorney, and he said, “Yes.” The court thereupon took his no contest pleas and found there was a factual basis for them. With defendant’s consent, the court continued the matter for sentencing.