Opinion
D070577
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. HOWARD CURRY, Defendant and Appellant.
Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD266204) APPEAL from a judgment of the Superior Court of San Diego County, Daniel F. Link, Judge. Affirmed. Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
In April 2016 Howard Curry pleaded guilty to possessing a controlled substance for sale (Health & Saf. Code, § 11378) and agreed to a stipulated sentence of three years. Curry moved to withdraw his plea, arguing he had been sleep deprived and not properly medicated when he entered his plea. The trial court denied the motion and sentenced Curry to three years as contemplated in the plea agreement. The court imposed various fines and fees and credited Curry for 75 days of actual custody plus 74 days under Penal Code section 4019.
Curry appealed and requested a certificate of probable cause. The trial court denied the request. Curry then filed an amended notice of appeal.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. He presented no argument for reversal, but asked this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Under Anders v. California (1967) 386 U.S. 738 (Anders), he listed as a possible, but not arguable issue, whether the trial court erred by denying his motion to withdraw his plea.
Curry sought to withdraw his plea, arguing that he had not slept properly since his arrest and had not been properly medicated for his schizophrenia and bipolar disorder. He claimed that his guilty plea was the result of "disorganized thinking and lack of sleep." A defendant may move the trial court to set aside a guilty plea for good cause at any time before the entry of judgment. (Pen. Code, § 1018.) "Good cause" means clear and convincing evidence of mistake, ignorance or any other factor that overcomes the exercise of free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) We review the ruling on a withdrawal motion for an abuse of discretion. (People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 796.)
Police arrested Curry on March 21, 2016, and he pleaded guilty 14 days later on April 4, 2016. On the change of plea form, Curry affirmed his sobriety, the lack of any impairment in his judgment, and that he read and understood everything on the form. At the change of plea hearing, Curry responded appropriately to the court's questions and nothing in the record suggests Curry suffered from impaired judgment. In fact, at one point Curry indicated that he was told something different about his sentence and then indicated his understanding after the court tendered an explanation. The trial court properly rejected Curry's assertion, without corroborating evidence, that the lack of sleep and medication impeded his exercise of free judgment. (See People v. Ravaux (2006) 142 Cal.App.4th 914, 918 [motion to withdraw properly denied where "[t]he sole evidence that [defendant's] judgment was affected by medication [was his] own assertions"].)
Appellate counsel noted that he sent a letter to the trial court on December 20, 2016, arguing that it had improperly applied penalty assessments to the crime lab fee under Health and Safety Code section 11372.5, raising it from $50 to $205. Counsel requested that the court correct the error within 21 days to allow him to file, if necessary, a supplemental brief on appeal. Counsel sent a follow-up letter confirming that the trial court corrected the issue as requested. Accordingly, we deem any issue regarding the crime lab fee as moot.
We granted Curry permission to file a brief on his own behalf. He has not responded. Our review of the record pursuant to Wende, including the possible issue listed by counsel pursuant to Anders, has disclosed no reasonably arguable issues on appeal. Competent counsel has represented Curry on this appeal.
DISPOSITION
The judgment is affirmed.
NARES, Acting P. J. WE CONCUR: HALLER, J. IRION, J.