Filed 2/26/21 P. v. Higginson CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B301820
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA075715)
v.
THEODORE RONALD HIGGINSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kathleen Blanchard, Judge. Affirmed.
Michele A. Douglass, under appointment by the Court of
Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
_________________________
Pursuant to a negotiated plea, defendant and appellant
Theodore Ronald Higginson pled no contest to violation of Penal
Code section 422, subdivision (a).1 We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND2
Porschea Alley and Higginson had dated for seven years
and had an infant daughter together. They broke up in October
2018. In February 2019, Alley was dating someone else.
At approximately 1:00 a.m. on February 15, 2019, Alley
and Higginson were outside Alley’s apartment, talking.
According to Alley’s statements to a police officer after she called
911 the next afternoon, she and Higginson argued. He shouted,
“ ‘Bitch, let me get my daughter,’ ” and threatened to kill her. He
started his car and drove toward her. She had to jump out of the
way to avoid being hit, and the car came within five feet of her.
Alley believed Higginson was going to hit her with the car.
At the preliminary hearing, Alley testified that she and
Higginson had been arguing because he wanted to take their
newborn daughter to his residence. Alley refused, because she
disliked a woman who was at his home that evening. She falsely
reported that Higginson threatened her and tried to run her over.
She “wanted to put him in jail because [she] was upset that he
had this girlfriend.”
In an information filed on March 26, 2019, Higginson was
charged with assault with a deadly weapon, a vehicle (§ 245,
subd. (a)(1), count 1) and making a criminal threat (§ 422,
1 All further undesignated statutory references are to the
Penal Code.
2 Because Higginson pled no contest before trial, we derive
the facts from the preliminary hearing transcript.
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subd. (a), count 2). The information alleged, as to both offenses,
that Higginson personally used a deadly and dangerous weapon
(§ 12022, subd. (b)(1)) and had suffered two prior serious or
violent felony convictions. (§§ 667, subd. (d), 1170.12, subd. (b).)
On April 24, 2019, Higginson declined the services of a
private attorney, apparently retained on his behalf by his family,
because Higginson did not wish to waive time and retained
counsel would have required a brief continuance. Appointed
defense counsel expressed concern about Higginson’s competency.
The trial court, Judge Charles A. Chung, asked Higginson a
series of questions, concluded he was “perfectly lucid,” and
declined to declare a doubt. In response, counsel stated that
Higginson’s family had told him Higginson spent time in
Atascadero Mental Hospital, and it appeared he was receiving
mental health treatment in jail. In counsel’s view, Higginson
appeared very suspicious and seemed to have difficulty making
decisions. Although Higginson appeared “on a very minimal level
to be oriented” and generally knew what was going on, counsel
did not feel Higginson could fully assist in his defense. He
seemed unable to “fully grasp the various decisions to be made in
the case. For example, to have a private lawyer or myself. It just
seems very difficult for him.” The court replied, “My ruling
stands. I haven’t heard anything that is compelling to the court
to declare a doubt. I know there is some concern about whether
he is competent because of his decision making process in terms
of the choice of attorneys. I actually find that there is a great
clarity in that. He seems to fully understand that if he were to go
with [private counsel], that would entail a time waiver. And he’s
made it very clear he does not want to waive time. I think
demanding a right to a speedy trial, which is a constitutional
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right and making decisions on that compelling interest makes
him incredibly rational, not necessarily incompetent.”
The matter was transferred to a courtroom for trial, with
Judge Kathleen Blanchard presiding. On May 17, 2019,
pursuant to a negotiated disposition, and after being advised of
and waiving his rights to a trial, to confrontation, and against
self-incrimination, Higginson pled no contest to count 2, making
a criminal threat. Higginson also admitted suffering a “strike”
conviction for making a criminal threat in 2009. Counsel
concurred in the plea. The trial court found Higginson’s waivers
were knowingly, understandingly, and intelligently made, and
that there was a factual basis for the plea. Pursuant to the
parties’ agreement, Higginson’s case was sent to a different
courtroom for determination of his eligibility for the Alternative
Resources Court (A.R.C.) program. If not accepted, he would be
sentenced to four years in prison. In accordance with the
negotiated plea, the court struck a remaining prior strike
allegation.
On June 19, 2019, Judge Christopher G. Estes found
Higginson ineligible or unsuitable for “mental health court.”
On July 9, 2019, Judge Blanchard granted a continuance to
allow defense counsel to seek an alternative treatment program
for Higginson. However, Higginson was not accepted into the
treatment program counsel had identified.
On August 19, 2019,3 in accordance with the plea
agreement, the court sentenced Higginson to the midterm of two
3 Also on August 19, 2019, at defense counsel’s request, the
court conducted an ex parte hearing with counsel. The transcript
of that hearing, which we have reviewed, was sealed.
Accordingly, we do not further discuss it here.
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years, doubled pursuant to the Three Strikes law, for a total of
four years in prison, with credit for 373 days in custody. It
imposed a $300 restitution fine (§ 1202.4, subd. (b)), a suspended
parole revocation restitution fine in the same amount (§ 1202.45),
a $40 court operations assessment (§ 1465.8, subd. (a)(1)), and a
$30 criminal conviction assessment (Gov. Code, § 70373). The
court dismissed count 1, assault with a deadly weapon. It
observed that defense counsel had made “extraordinary efforts”
to find a placement program for Higginson.
Higginson timely appealed. As far as the record reflects, he
did not obtain a certificate of probable cause.
DISCUSSION
After review of the record, Higginson’s court-appointed
counsel filed an opening brief that raised no issues, and
requested that this court conduct an independent review of the
record pursuant to People v. Wende (1979) 25 Cal.3d 436.
Appellant was advised that he had 30 days to submit by brief or
letter any contentions or argument he wished this court to
consider. We have received no response.
Pursuant to section 1237.5 and California Rules of Court,
rule 8.304(b), a criminal defendant who appeals following a plea
of no contest or guilty, without a certificate of probable cause,
may only challenge the denial of a motion to suppress evidence or
raise grounds arising after the entry of the plea that do not affect
the plea’s validity. (People v. Johnson (2009) 47 Cal.4th 668,
676–677 & fn. 3; People v. French (2008) 43 Cal.4th 36, 43.) With
respect to sentencing or post-plea issues that do not in substance
challenge the validity of the plea itself, we have examined the
record and are satisfied no arguable issues exist and Higginson’s
attorney has fully complied with the responsibilities of counsel.
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(People v. Kelly (2006) 40 Cal.4th 106, 125–126; People v. Wende,
supra, 25 Cal.3d at pp. 441–442.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
We concur:
EGERTON, J.
DHANIDINA, J.
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