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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 , for a good cause shown, permit the plea of guilty to be withdrawn and a plea of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].)

              The trial court granted probation plus 314 days county jail with credit for
time served. Appellant filed a notice of appeal and certificate of probable cause stating
that he was not given the opportunity explain why he wanted to withdraw his plea. The
motion to withdraw the plea was heard on July 9, 2012 and denied August 7, 2012. (§
1018.) At the hearing, appellant testified that "Mr. Tucker chose a defense that even I
could see through. . . . [¶] . . . [Tucker] continuously said this was the best defense."


2
 We have granted appellant's request to unseal page 1 to page 2, line 7 of the March 17,
2011 Marsden hearing transcript. (Cal. Rules of Court., rule 8.328(b)(4).) Appellant
asserts that the other portions of the transcript are irrelevant to the appeal because no
Marsden issue is presented.


                                              2
                                         Discussion
              A postjudgment motion to withdraw a plea is an exceptional remedy and
may be granted "'only upon a strong and convincing showing of the deprivation of legal
rights by extrinsic causes." [Citation.]" (People v. Castaneda (1995) 37 Cal.App.4th
1612, 1617.) Good cause must be shown by clear and convincing evidence. (Ibid.)
              Appellant claims that he was forced to plead no contest when the trial court
denied the Marsden motions on March 17, 2011 and May 2, 2011. Appellant, however,
did not enter the change of plea until July 29, 2011, after he was advised that the
maximum sentence was\eight years state prison, that he would be required to register as a
sex offender, and that he could be prosecuted by the Navy. The change of plea colloquy
clearly shows that appellant entered the plea knowingly, freely, voluntarily, and without
duress.
              A year later, at the July 9, 2012 hearing on the motion to withdraw the plea,
appellant stated: "I signed the plea agreement, only because of a family issue that had
just happened." Appellant blamed the change of plea on the victim, his attorney, the
police, and the United States Navy. In a letter to the trial court, appellant wrote that the
victim assaulted him at the party, "effectively kidnapping me in my disarmed state," and
tried to lure him upstairs to her bedroom.
              Appellant argues that the plea must be set aside because his attorney was
not willing to proceed to trial with a credible "defense" that would prove appellant's
innocence. "[C]ounsel is captain of the ship. . . . 'When the accused exercises his
constitutional right to representation by professional counsel, it is counsel, not defendant,
who is in charge of the case. By choosing professional representation, the accused
surrenders all but a handful of "fundamental" personal rights to counsel's complete
control of defense strategies and tactics.' [Citations.] It is for the defendant to decide
such fundamental matters as whether to plea guilty . . . .' " (In re Horton (1991) 54
Cal.3d 82, 95.)



                                               3
             The trial court found that appellant freely and voluntarily entered the
change of plea "without any force, coercion, or ambiguousness about it." We concur.
When the change of plea was entered, appellant was asked "Are you sure you wish to do
this?" Appellant responded, "Yes, sir." Appellant negotiated a very favorable plea in
exchange for probation. The plea may not be withdrawn simply because appellant
changed his mind. (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208; People v.
Knight (1987) 194 Cal.App.3d 337, 344.) Nor has appellant shown that the denial of his
motion to withdraw the plea was an abuse of discretion. (People v. Shaw (1998) 64
Cal.App.4th 492, 496.)
             The judgment is affirmed.
             NOT TO BE PUBLISHED.



                                                       YEGAN, J.

We concur:


             GILBERT, P.J.


             PERREN, J.




                                            4
                                 Bruce A. Young, Judge

                           Superior Court County of Ventura

                          ______________________________


             California Appellate Project, under appointment by the Court of Appeal,
Jonathan B. Steiner, Executive Director and Suzan B. Hier, For Defendant and Appellant.


             Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D.
Matthews, Supervising Deputy Attorney General, Connie H. Kan, Deputy Attorney
General, for Plaintiff and Respondent.




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