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People v. Lowther

California Court of Appeals, Second District, Third Division
Apr 21, 2009
No. B212362 (Cal. Ct. App. Apr. 21, 2009)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, No. GA073220, Teri Schwartz, Judge.

Robert Derham, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.


ALDRICH, J.

Eric Linn Lowther appeals from the judgment entered following his plea of no contest to assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), during the commission of which he inflicted great bodily injury (§ 12022.7, subd. (a)). The trial court sentenced Lowther to two years in prison. We affirm.

All further statutory references are to the Penal Code unless otherwise indicated.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

The facts have been taken from the transcript of Lowther’s preliminary hearing.

On May 4, 2008, Hector Carmona was working at the Pep Boys store at 1135 East Colorado Boulevard in Los Angeles. At approximately 5:00 p.m. that day Carmona had gone outside the store to take his break and smoke a cigarette. As he was standing there, Carmona was approached by Lowther. Lowther asked Carmona if he had seen a “girl and a... guy in a wheelchair” because they had just stolen his wallet. Lowther explained that he had $800 in his wallet and he was trying to go to Texas. Just as Carmona told Lowther that he had not seen the pair, he saw a woman walk around the corner and down the street. Lowther pulled a knife with an approximately three-inch blade from his pocket, said, “ ‘I’m going to kill her,’ ” then began to run after the woman.

Lowther slashed the knife at the woman as he chased her down the street yelling, “[W]here’s my f-ing wallet.” The woman, who was screaming, fell down onto the ground and Lowther continued to slash at her with the knife. When cars started honking and Carmona’s customers “started kind of freaking out,” Carmona went back inside the store and telephoned the police.

When Carmona went back outside the store, he could no longer see Lowther and the woman. They had gone around a corner, onto a side street. However a man who was bleeding from the neck came around the corner, walked toward Carmona and said, “ ‘He stabbed me.’ ”

The man, Anthony Giddings, the woman, Geneva Walker, and Lowther then began to fight in front of Carmona’s office. A man in a wheelchair was also present although he did not participate in the altercation. Giddings and Walker knocked down Lowther and began kicking and punching him. Walker took a piece of the wheelchair and threw it at Lowther, but missed hitting him. Giddings, Walker, the man in the wheelchair and Lowther then attempted to leave the area just as police officers arrived.

According to Walker, she had seen Lowther earlier that day at the nearby Social Security Building. When she went to the Pep Boys store, she saw Lowther again. As she was walking out of Pep Boys, Walker saw Lowther standing in the middle of the street. As Walker passed Lowther, he pushed her onto the ground then stabbed her on her left arm and the left side of her neck with what she believed was a small knife. Lowther stood over Walker and yelled that she had taken his wallet and he was going to kill her. When Walker, who had not taken Lowther’s wallet, screamed, her boyfriend, Giddings, came over and stood between Walker and Lowther. Giddings hit Lowther in an attempt to “get him away” from Walker. Lowther reacted by stabbing Giddings in the neck. Giddings’s brother, Darryl, who is in a wheelchair, began to yell at Lowther. In order to protect Darryl, Walker grabbed one of the metal foot pieces from Darryl’s wheelchair and threw it at Lowther.

Giddings testified he had seen Lowther around the Social Security Building where Giddings and Walker frequently “h[u]ng out.” On the afternoon of May 4, 2008, Giddings saw Lowther in the middle of the street in front of the Pep Boys store, standing over Walker. Giddings, who was sitting and talking with his brother, Darryl, got up, ran down to where Lowther was standing over Walker and swung at him. Lowther backed up and Walker was able to get up off the ground. However, as Giddings “squared off” to fight Lowther, Lowther swung at Giddings and stabbed him in the neck. Giddings, who was bleeding profusely, walked over to the Pep Boys store where one of the employees gave him some first aid and telephoned the police. When Lowther came over and began to talk to Giddings about how Walker had stolen his money, Giddings told him, “ ‘You better get out of here or your ass [is] going to jail for attempted murder.’ ”

Giddings was transported to the hospital where he was treated for his injuries. He received several staples in his neck and was given medication.

2. Procedural History.

Following the preliminary hearing, on June 20, 2008 an information was filed alleging as to count one that Lowther committed the crime of attempted, willful, deliberate, premeditated murder of Giddings in violation of sections 664 and 187, subdivision (a). As to count two, it was alleged Lowther committed assault of Giddings with a deadly weapon in violation of section 245, subdivision (a)(1). It was further alleged as to counts one and two that, during the commission of the offenses, Lowther personally inflicted great bodily injury upon Giddings pursuant to section 12022.7, subdivision (a).

Count three alleged Lowther committed the attempted, willful, deliberate, premeditated murder of Walker in violation of sections 664 and 187, subdivision (a). Count four alleged Lowther committed on Walker assault with a deadly weapon in violation of section 245, subdivision (a)(1).

As to counts one, two, three and four, it was alleged Lowther used a deadly and dangerous weapon, a knife, “said use not being an element of the above offense[s],” within the meaning of section 12022, subdivision (b)(1).

At proceedings held on September 22, 2008, Lowther was advised of and waived his right to a jury or court trial, the right to confront and cross-examine the witnesses against him, the right to subpoena witnesses and present a defense, and his privilege against self-incrimination. He then pleaded no contest to assault with a deadly weapon of Giddings in violation of section 245, subdivision (a)(1) and admitted having inflicted great bodily injury on Giddings within the meaning of section 12022.7. Sentencing was set for October 17, 2008.

On October 17, Lowther indicated he wished to withdraw his plea. When the trial court asked him why, Lowther indicated he believed he had received ineffective assistance of counsel. He stated, “I feel like I was coerced and threatened. And I’ve had time to think about the whole thing. And I just feel like it, you know, hasn’t been done right.” After some discussion, during which the trial court indicated it was not going to allow Lowther to withdraw his plea, the trial court indicated it would hear a Marsden motion if that was what Lowther wished.

People v. Marsden (1970) 2 Cal.3d 118.

At the Marsden hearing, Lowther indicated he believed his counsel had been ineffective because he failed to make a section 995 motion to dismiss the charges altogether and, although Lowther had asked for it on several occasions, counsel had not provided him with a “discovery packet.” In addition, Lowther indicated that it had been his understanding from statements made by his counsel that he was going to be sentenced to “time served.” Lowther stated that he did not think his counsel had done the “best of his ability” on Lowther’s behalf.

Counsel initially responded by indicating that there was no basis on which to make a section 995 motion to dismiss the charges alleged against Lowther. Counsel continued: “And why we ended up getting the disposition we ended up getting was because we did some tactical things. And obviously from a potential life sentence to a two-year sentence, there was some tactics.” Counsel indicated he had been to the supervising district attorney’s office and the district attorney had commented that counsel had been in his office “more times than [he could] imagine on this particular case.”

With regard to Lowther’s allegation he was coerced into taking the plea, counsel indicated there had been a “lot of negotiation” and that Lowther had been “advised and talked to at length relative to this disposition.” Counsel admitted not giving Lowther the police reports from his case. However, counsel indicated Lowther had been at the preliminary hearing and had heard all the evidence which appeared in the police reports. Finally, counsel stated: “[H]e was looking at a life sentence. And what we ended up doing, again, was getting the two-year deal striking the [great bodily injury] allegation.”

The trial court determined that counsel had “done all that one could do and probably then some.” Accordingly, the trial court denied Lowther’s Marsden motion.

After the district attorney returned to the courtroom, Lowther again made a motion to withdraw his plea. The trial court denied the motion, stating, “[T]here is nothing here for me to base a ruling on that would allow you to withdraw the plea. There is just no good reason for it other than you’ve had a change of heart. [¶] Under the law, that’s not sufficient. I didn’t see anything in the transcript where you were coerced.” Lowther indicated he had “asked for a motion for disqualifying the judge.” However, the trial court responded that he did not remember Lowther asking for a different judge because if he had, the trial court would “have been happy to accept that request.” After Lowther once again indicated he had the right to withdraw his plea, the trial court ruled that he did not because “there [was] no good cause for it at [that] time.”

The trial court sentenced Lowther to the low term of two years in prison for his conviction of assault with a deadly weapon in violation of section 245, subdivision (a)(1). The trial court then imposed and struck in furtherance of justice pursuant to section 1385 a three-year term for Lowther’s infliction of great bodily injury in violation of section 12022.7. Lowther was awarded presentence custody credit for 168 days actually served and 25 days for good time/work time, for a total of 193 days. The trial court ordered Lowther to pay a $200 restitution fine (§ 1202.4, subd. (b)), a suspended $200 parole revocation restitution fine (§ 1202.45) and a $20 court security fee (§ 1465.8, subd. (a)(1)). All remaining counts and allegations were dismissed by the trial court pursuant to section 1385.

Lowther filed a timely notice of appeal on November 18, 2008.

This court appointed counsel to represent Lowther on appeal on December 24, 2008.

CONTENTIONS

After examining the record, counsel for Lowther filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed February 23, 2009, the clerk of this court advised Lowther to submit within 30 days any contentions, grounds of appeal, or arguments he wished this court to consider.

On March 17, 2009, Lowther submitted a supplemental brief in which he claimed both his appellate and trial counsel had been ineffective. As to his trial counsel, Lowther asserted counsel lied to him, failed to provide him with records he requested and told him to waive time against his better judgment. Lowther asserted his appellate counsel was ineffective because he failed to make the arguments Lowther suggested.

“In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)

In the present case, although counsel may have failed to provide Lowther with some of the materials he wished to have, Lowther suffered no prejudice. Counsel negotiated a sentence of two years in prison when Lowther had been charged with crimes with potential life terms.

“The question of ineffective... appellate counsel must be decided on a case-by-case basis, ‘and the determination of each will depend on whether the appellant’s counsel failed to raise assignments of error which were crucial in the context of the particular circumstances at hand.’ [Citation.]” (People v. Valenzuela (1985) 175 Cal.App.3d 381, 390-391, overruled on another ground in People v. Flood (1998) 18 Cal.4th 470, 489, fn. 12.) Here, appellate counsel filed a Wende brief raising no issues. As there appears to be no arguable issues presented, counsel cannot be faulted for filing such a brief.

REVIEW ON APPEAL

We have examined the entire record and are satisfied that Lowther’s counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

We concur: KLEIN, P. J., CROSKEY, J.


Summaries of

People v. Lowther

California Court of Appeals, Second District, Third Division
Apr 21, 2009
No. B212362 (Cal. Ct. App. Apr. 21, 2009)
Case details for

People v. Lowther

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ERIC LINN LOWTHER, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Apr 21, 2009

Citations

No. B212362 (Cal. Ct. App. Apr. 21, 2009)