Filed 3/4/16 P. v. Smith CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D067231
Plaintiff and Respondent,
v. (Super. Ct. No. SCD258855)
ASBURY JOHN SMITH III,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert F.
O'Neill and Michael T. Smyth, Judges. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
No appearance for Plaintiff/Defendant and Respondent.
Pursuant to a plea agreement, Asbury John Smith entered a guilty plea to one
count of assault with a deadly weapon (Pen. Code,1 § 245, subd. (a)(1)), and admitted:
(1) a section 12022.7, subdivision (e) enhancement for personally inflicting great bodily
1 All further statutory references are to the Penal Code unless otherwise specified.
injury under circumstances involving domestic violence, (2) a prior serious felony (§§
667, subd. (a)(1), 668, 1192.7, subd. (c)), and (3) a prior strike (§§ 667, subds. (b)-(i),
668, 1170.12). The trial court sentenced Smith to nine years in prison, and ordered him
to pay fines, fees, and victim restitution.
Counsel has filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436
(Wende) and Anders v. California (1967) 368 U.S. 738 (Anders) raising a possible, but
not arguable issue. We offered Smith the opportunity to file his own brief on appeal, but
he has not responded.
FACTUAL AND PROCEDURAL BACKGROUND
Since Smith was convicted pursuant to a guilty plea we take the facts from the
probation officer's report. On September 28, 2014, Smith began arguing with his former
wife, Jane Higgison, at their transient camp underneath a freeway. He stabbed her with a
knife, lacerating the right side of her abdomen as well as her right wrist and arm.
Higgison fell to the ground on her back, saw blood, and realized she had been stabbed;
she tried to walk a short distance, but collapsed. As Smith walked away from the camp
area, he passed by Higgison's boyfriend, Thomas Gomez, and told Gomez to "check on
Jane." Gomez found Higgison lying in the dirt, bleeding. Higgison told Gomez that
Smith had stabbed her, and she later told police that Smith had stabbed her with a hunting
knife that he carried with him. Officers located Smith with the knife in his backpack and
blood stains on his pants.
On October 1, 2014, a felony complaint was filed against Smith. The operative
amended complaint was filed on October 10, 2014, charging one count of assault with a
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deadly weapon and a second count of corporal injury to Higgison in violation of section
273.5, subdivision (a), with special allegations on each count. As stated above, Smith
entered into a written plea agreement; in exchange for his plea, Smith would receive a
stipulated sentence of nine years, be referred to substance abuse treatment in prison, and
have the balance of the amended complaint dismissed. On October 10, Smith was
arraigned on the amended complaint, entered a guilty plea, and affirmed in court that he
had consulted with his counsel and fully understood the implications of his plea. Smith
coherently answered a series of questions by the trial judge related to his understanding
of the ramifications of pleading guilty. Accordingly, the court dismissed the balance of
the amended complaint and set a date for sentencing.
The sentencing hearing was held on December 2, 2014. Smith's counsel stated
that there was no legal cause why sentence should not be pronounced. Smith disagreed,
arguing that he believed there were grounds for a motion to withdraw his plea because he
was "coerced into it." Smith's counsel reiterated that there were no viable grounds to
support a motion to withdraw. The trial court sentenced Smith.
On December 3, 2014, Smith filed a notice of appeal, challenging the validity of
his plea. He attached a request for certificate of probable cause, declaring that he had not
been in his "right mind" when he signed the plea agreement; although he had been "10
days clean" of drugs, he had not been "sober or clear-minded" at the time of signing, and
he had not known what the judge was asking him when he pleaded guilty. On December
22, 2014, the court denied Smith's request for a certificate of probable cause. On January
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7, 2015, he filed an amended notice of appeal from the sentence or other matters
occurring after the plea.
DISCUSSION
As we have previously noted, appellate counsel has filed a brief indicating he is
unable to identify any argument for reversal and asks this court to review the record for
error as mandated by Wende, supra, 25 Cal.3d 436. Pursuant to Anders, supra, 386 U.S.
738, the brief identifies one possible, but not arguable issue: "Did the trial court err in
denying the defendant's request to withdraw his plea? (Pen. Code[, §] 1018)."
We have reviewed the entire record in accordance with Wende, supra, 25
Cal.3d 436 and Anders, supra, 368 U.S. 738, including the issue suggested by counsel,
and have not found any reasonably arguable appellate issue. Competent counsel has
represented Smith on appeal.
DISPOSITION
The judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
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