P. v. Davis CA2/6

Filed 5/15/13 P. v. Davis CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.111.5.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B239808 (Super. Ct. No. 2010029929) Plaintiff and Respondent, (Ventura County)

v.

JEREMY A. DAVIS,

Defendant and Appellant.

Jeremy A. Davis appeals from a postjudgment order denying a motion to 1 withdraw his plea (Pen. Code, § 1018) 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

1 All statutory references are to the Penal Code. Section 1018 provides in pertinent part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the [trial] court may . . . , for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."

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 2 appellant had "a strong defense." 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].)