Unreported / Non-Citable
Background
Patrick James Davies was charged in Mendocino County with felony diversion of construction funds exceeding $2,350 (Pen. Code § 484b), misdemeanor contracting without a license, and misdemeanor failure to secure workers' compensation, after homeowner Eric Barndt paid him a $70,000 down payment on a $157,000 project he never completed or refunded. Davies, then serving a prison term in separate Lake County cases, made a speedy-trial demand under Penal Code section 1381 received October 22, 2024. At the preliminary hearing, a Contractor's State License Board investigator testified that Davies admitted he was unlicensed, operated as Pat Cark Construction, LLC, accepted the $70,000, performed minimal work, and refused to return the funds. He was held to answer on the diversion count, the unlicensed-contracting count, and an uncharged felony count of using another's personal identification; the workers' compensation allegation was dropped.
On December 16, 2024, Davies pled no contest to the diversion count under a plea agreement dismissing the other counts with a Harvey waiver, stipulating to eight months consecutive to his other cases and $70,000 in restitution. The court reviewed the Tahl waiver, found the plea knowing and voluntary, and issued a pretrial criminal protective order (CPO) for the owners of Pat Clark Construction with no expiration date. At sentencing on January 13, 2025, the court imposed the stipulated consecutive term (total five years, eight months), a $300 restitution fine, a suspended $300 parole-revocation fine, $70,000 in victim restitution, a $40 court security fee, and a $30 criminal conviction assessment. Davies filed a notice of appeal and certificate-of-probable-cause request, denied January 27, 2025. Appointed counsel filed a Wende brief raising no issues; Davies filed a supplemental letter brief alleging aggravated identity theft and attorney misrepresentation.
The Court’s Holding
The Court of Appeal rejected Davies' identity-theft claim because an appeal reviews only the record before the trial court, and identity theft would not negate the facts supporting his plea: he held himself out as a licensed contractor, signed a contract, accepted $70,000, failed to use the funds for materials, and refused to return the money or complete the work. The court also rejected his ineffective-assistance claims, finding no prejudice from counsel's failure to pursue the identity-theft theory, and finding his claim that no plea offer was discussed belied by the initialed plea form and Tahl colloquy. His claim that counsel divulged protected information was waived for lack of record citations and lacked merit. Because the court addressed these plea-related claims under its Wende duty, it did not reach the certificate-of-probable-cause denial.
The court found any error on the section 1381 demand harmless because the district attorney brought Davies to sentencing within 90 days of the October 22, 2024 demand and Davies showed no prejudice. On the CPO, the court concluded the pretrial order terminated by operation of law at sentencing because section 136.2 authorizes such orders only during the pendency of a criminal action, and no post-sentencing order issued. But because the order stated it remained in effect until further court order and the record lacked a termination form, the court remanded to issue a Notice of Termination of Protective Order using form CR-165. Finally, Davies forfeited any ability-to-pay challenge because, although he filed an assets form, he never requested a hearing or asserted inability to pay in the trial court.
Key Takeaways
- A no-contest plea appeal cannot raise new claims, such as identity theft, that were not before the trial court and would not negate the plea's factual basis.
- Claims that counsel failed to discuss a plea offer fail when the initialed plea form and Tahl colloquy show the defendant understood the agreement and had time to consult counsel.
- Appellate arguments unsupported by record citations are waived, and self-represented defendants are held to the same briefing rules as represented parties.
- A pretrial criminal protective order under Penal Code section 136.2 terminates by operation of law at sentencing, but should be formally terminated using form CR-165 so authorities receive notice.
- A defendant who files an assets form but never requests an ability-to-pay hearing or objects to fees forfeits the issue on appeal.
Why It Matters
This unpublished decision shows how California appellate courts handle Wende proceedings when a defendant raises specific claims in a supplemental brief: the court must expressly address them and explain why they fail, even where the absence of a certificate of probable cause might otherwise preclude review of plea-related issues. The court balanced the bar on circumventing section 1237.5 against its duty under People v. Kelly, addressing the ineffective-assistance claims on the merits without deciding the certificate issue. The ruling also confirms that pretrial criminal protective orders expire by operation of law at sentencing under section 136.2 while stressing formal termination, and reinforces that forfeiture rules for ability-to-pay challenges survived People v. Kopp.