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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
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However, defendant’s appeal raised the issue of whether the trial court had erroneously
denied the suppression motion. Defendant contacted McCarthy and stated that he wanted
to withdraw his plea, because she had erroneously told him that he could pursue the
speedy trial violation on appeal. McCarthy acknowledged that she had erroneously
advised him, but explained that she did not believe that he would have succeeded on this
issue. McCarthy advised him that the Fourth Amendment violation was more likely to
succeed and that he should wait to see whether the case was reversed on appeal rather
than bring a motion to withdraw his plea. Defendant decided not to pursue the motion at
that time.
       In October 2013, this court issued its opinion in case No. H038263 in which it
concluded that trial court properly denied the suppression motion and affirmed the order
placing defendant on probation. In early 2014, after the appeal became final, defendant
contacted McCarthy about the motion to withdraw his plea. Though McCarthy did not
agree with defendant’s decision to withdraw his plea, she brought the motion to vacate
the plea based on how her erroneous advice might have affected defendant’s decision to
enter his plea. In October 2014, the trial court denied the motion.
       Defendant filed a timely notice of appeal.


                                      II. Discussion
       Appointed appellate counsel has filed an opening brief which states the case and
the facts but raises no issues. (See People v. Wende (1979) 25 Cal.3d 436, 441 (Wende).)
Defendant was notified of his right to submit written argument on his own behalf and has
submitted two letter briefs to this court. Defendant appears to be arguing that both Clift
and McCarthy rendered ineffective assistance of counsel.
       “To prevail on a claim of ineffective assistance of counsel, a defendant must show
both that counsel’s performance was deficient and that the deficient performance
prejudiced the defense. [Citations.] Counsel’s performance was deficient if the
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representation fell below an objective standard of reasonableness under prevailing
professional norms. [Citation.] Prejudice exists where there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding would have been different.
[Citation.]” (People v. Benavides (2005) 35 Cal.4th 69, 92-93.)
        Defendant focuses on Clift’s request for a continuance beyond the statutory limit
to file a motion to suppress evidence despite defendant’s insistence on proceeding to trial.
However, a defendant’s statutory right to be tried within 60 days is not a fundamental
right, and thus counsel may waive this right over objection by defendant. (Townsend v.
Superior Court (1975) 15 Cal.3d 774, 781-782.) Here, defendant is claiming that his
statutory right to be tried within 60 days was violated. Thus, defendant has failed to
demonstrate that Clift’s performance was deficient when he requested a continuance in
order to file a motion to suppress evidence, thereby waiving defendant’s statutory speedy
trial right.
        As to McCarthy, her representation was deficient when she erroneously advised
defendant that he could raise the issue of a speedy trial violation on appeal. However,
defendant has failed to show prejudice. Even assuming that defendant had been able to
raise this issue on appeal, the judgment would not have been reversed. As previously
stated, Clift’s request for a continuance was properly granted over defendant’s objection.
        Relying on People v. Goodrum (1991) 228 Cal.App.3d 397, defendant contends
that the trial court erred when it denied his motion to withdraw his plea. He points out
that when he entered his plea, the trial court failed to advise him that he could not appeal
the violation of his right to a speedy trial without having had a trial. However, a trial
court should “allow the withdrawal of a plea if the presentation at the hearing establishes
that a reasonable person in the defendant’s position, had he been correctly advised by the
judge or other responsible public official, would not have entered a guilty plea and
forfeited his ‘substantial legal right’ to a trial. [Citation.]” (Id. at p. 401.) According to
his letter brief, defendant asserts that he wanted to go to trial because if he was found
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guilty, the judgment would be reversed on appeal on the statutory violation of his speedy
trial right. Thus, defendant’s reason for taking the case to trial was erroneous. A
reasonable person would have entered a plea because, even if he had been correctly
advised, he would not have gone to trial on the mistaken notion that the judgment would
be reversed on appeal.
       Pursuant to Wende, supra, 25 Cal.3d 436, we have reviewed the entire record and
have concluded that there are no arguable issues on appeal.


                                       III. Disposition
       The order is affirmed.




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                                   _______________________________
                                   Mihara, J.



WE CONCUR:




______________________________
Bamattre-Manoukian, Acting P. J.




______________________________
Grover, J.




People v. Davis
H041613

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