People v. Davis CA2/4 ( 2014 )

Filed 10/16/14 P. v. Davis CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for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 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B255733
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. GA088217)
v.
AVERY GENE DAVIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County,
Teri Schwartz, Judge. Affirmed.
Richard B. Lennon, under appointment by the Court of Appeal, and
Avery Gene Davis, in pro per., for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
______________________________
Defendant Avery Gene Davis moved to withdraw his plea of no contest to first
degree residential burglary one year after he was sentenced. The trial court denied his
motion, and Davis appealed. His appointed counsel filed a brief under People v. Wende
(1979) 25 Cal.3d 436, and Davis filed a supplemental letter brief in pro. per.
In November 2012, Davis and a co-defendant were discovered in a home, holding
some of the homeowner’s property. They were charged with first degree burglary,
person present (Pen. Code, § 459).1 A prior strike conviction was alleged as to Davis.
The prosecution offered “a package deal” to both, which included eight years in prison
for Davis. Initially Davis rejected the deal. After the court advised him of his exposure
to a minimum of nine and maximum of 17 years in prison, Davis stated he did not want
to go to trial and asked if he could get seven years instead. The court explained he could
not. Davis then consulted with his attorney, accepted the deal, waived his right to a jury
trial, and pled no contest to the charge. He admitted the person-present and prior-strike
allegations. In March 2013, the court imposed an eight-year sentence under the plea deal,
as well as other fines and fees, and awarded Davis 119 days of presentence credits.
One year later, in March 2014, Davis moved to withdraw his plea. In a
declaration, he stated his counsel had incorrectly informed him he had no defense to the
charged crime, but he later learned he did have an unidentified defense. In a separate
missive, Davis claimed he was taking medication while in county jail, the medication was
making his mind “race,” he was not in his “right mind,” and he did not know what he was
doing. The court denied the motion as untimely, finding no justification for the delay
since all claimed facts existed at the time the plea was entered. It granted Davis’s request
for a certificate of probable cause.
In his supplemental letter brief, Davis asks for a new appellate counsel. He also
claims he was “not able to think for [him]self” at the time he pled no contest, and his trial
counsel “was not on [his] side.”
1 Statutory references are to the Penal Code.
2
A motion to withdraw a plea may be granted “at any time before judgment.”
(§ 1018.) To obtain postjudgment relief, the defendant must “explain and justify the
delay.” (People v. Castaneda (1995) 37 Cal.App.4th 1612, 1618.) Davis offers no
explanation for the one-year delay in bringing the motion. We have examined the entire
record and are satisfied that Davis’s appellate counsel has fully complied with his
responsibilities and that no arguable issues exist. (People v. Wende, supra, 25 Cal.3d at
p. 441.)
DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
WILLHITE, J.
MANELLA, J.
3