Filed 2/26/21 P. v. Higginson CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

T HEODORE R ONALD HIGGINSON

,

Defendant and Appellant. B 301820

(Los Angeles County Super. Ct. No. MA075715)

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.

_________________________2 Pursuant to a negotiated plea, d efendant and a ppellant

Theodore Ronald Higginson pled no contest to vio lation of Penal
Code section 422, subdivision (a)

. 1 We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND 2

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 els e. 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 t o hit her with the car.
At the preliminary hearing, Alley testified that s he 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 ove r

. She “wanted to put him in jail because [she] was upset t hat 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 thre at (§ 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

.3

subd. (a), count 2). The information alleged, as to both offenses,
that Higginson personally used a deadly and dangerous weapon
(§ 1 2 022, 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. App ointed

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, c ounsel 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

decision s. Although Higginson appeared “on a very minimal level
to be oriented” and generally knew what was going on, co unsel
did not feel Higginson could fully assi s t 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 i s 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 see m s to fully understand that if he were to go
with [private counsel], that would entail a time waiver. An d he’s
made it very clear he does not want to waive time. I think
demanding a right to a speedy trial, wh ich is a constitutional4

right and making decisions on that compelling interest makes
him incredibly rational, not necessarily incompetent.”

The matter was transferred to a courtroom fo r trial, with
Judge Kathle en 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

- incriminatio n, 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, u nd erstandingly, 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 prio r strike
allegation.
On June 19, 2019, Judge Christopher G. Estes found
Higgins on 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 wi th counsel. The transcript of that hearing , which we have reviewed, was sealed. Accordingly, we do not further discuss it here.5

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 (§ 12 02.4, 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, assaul t with a deadly weapon. It

observed that defense counsel had made “ex traordinary efforts”
to find a placement program for Higginson.
Higginson timely appeal e d

. As far as the record reflects, he
did not obtain a certificate of probable cause.

DISCUSSION

Af ter 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

lett er any contentions or argument h e 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 d efendant 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

recor d and are satisfied no arguable issues exist and Higginson’s

attorney has fully complied with the responsibilities of counsel.6

( 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.