Filed 10/27/14 P. v. Lowry CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D064764

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. Nos. SCS 261008,
                                                                    SCS250371, SCS224512)
DARYL EUGENE LOWRY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of San Diego County, Stephanie

Sontag, Judge. Affirmed.



         Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for

Defendant and Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.




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       Defendant Daryl Eugene Lowry appeals from the trial court's judgment denying

his motion to withdraw his guilty plea under Penal Code section 1018.1 Lowry pled

guilty to assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)).

Lowry contends the court abused its discretion when it denied his motion to withdraw his

guilty plea because he was under the influence of a psychotropic medication when he

signed the plea agreement and entered the plea and has since maintained his innocence.

As we explain, we find no abuse of discretion and affirm the judgment.

                   FACTUAL AND PROCEDURAL BACKGROUND

A. Facts of Arrest and Priors

       During a November 2012 altercation with a San Diego Transit System Private

Security officer, Lowry struck and choked the officer. During his arrest, Lowry took the

officer's baton and struck him with it. Lowry was charged in an information with assault

by means of force likely to produce great bodily injury (§ 245, subd. (a)(4)), assault with

a deadly weapon (§ 245, subd. (a)(1)), robbery (§ 211), and illegal possession of a billy

club (§ 22210). Lowry pled guilty to assault by means of force likely to produce great

bodily injury and admitted one strike prior.

       At the time of the incident, Lowry was on probation for a December 2008

conviction in case number SCS224512 for assault with a deadly weapon, assault with

force likely to cause great bodily injury and an October 2011 conviction in case number

SCS250371 for making a criminal threat. The court revoked probation in both cases.



1      All further statutory references are to the Penal Code.
                                               2
The court sentenced Lowry to a four-year prison term, imposing a low term of two years

doubled by the Three Strikes law to run concurrently with his revocation of probation

sentences.

B. Guilty Plea

      The record showed Lowry and his attorney thoroughly reviewed the plea

agreement before Lowry entered his plea. In exchange for Lowry's plea, Lowry would

serve a four-year prison term concurrent with his two probation cases and he would not

face a five-year sentence enhancement for his prior serious felony conviction.

      While completing the plea form, Lowry stated he was under the influence of

medication. His attorney suggested they stop the review process. Lowry, however,

stated he was fine and wanted to proceed. Lowry initialed the required boxes on the

form, including the one stating, "I'm sober, my judgment is not impaired." Lowry's

attorney also advised him to inform the court if his thinking was affected by any

medications when entering his plea.

      At the plea hearing, the court first heard Lowry's Marsden motion.2 During the

Marsden hearing, Lowry presented the court with a letter, seeking to remove his attorney

from the case and withdraw the guilty plea he had not yet entered. In the letter, Lowry

stated he had not taken his medication the day he reviewed and signed the plea agreement

and therefore did not sign the plea agreement as an exercise of his free judgment. The

court assured Lowry he had not yet entered his plea and it was his choice alone whether



2     People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
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he pleaded guilty or went to trial. The court, Lowry and his attorney had an extensive

discussion in which Lowry acknowledged his testimony was the only evidence in favor

of his innocence. Lowry indicated he understood he would need to testify to establish

self-defense, but if he did so, his testimony would enable the prosecution to introduce

evidence of his prior convictions, which could influence the jury's perception of him.

Lowry's attorney also reminded him there was a witness who would testify seeing Lowry

with the officer's baton. Lowry ultimately decided to enter his plea. The court denied the

Marsden motion, finding Lowry's attorney was competent.

       Lowry then entered his plea and denied under oath taking any medications that

would affect his ability to knowingly enter the plea. Lowry, through his attorney,

stipulated to the preliminary hearing transcript, in which the officer testified Lowry

assaulted him, to establish the factual basis for his plea. The court and Lowry then

discussed postponement of sentencing to allow him to see his mother, who was

travelling.

C. Motion to Withdraw Guilty Plea

       Before sentencing, the court allowed Lowry to bring a motion to withdraw his

guilty plea. The court also relieved Lowry's attorney and appointed an alternate public

defender to bring the motion. Lowry subsequently filed his motion pursuant to section

1018, contending he had not made a knowing, intelligent and voluntary waiver of his

rights because he had taken medication that affected his thinking at the time he entered

the plea.



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       The trial court denied Lowry's motion. The court reviewed Lowry's medical chart

from the San Diego County Sheriff's Department and a document outlining Remeron, an

antidepressant, and its side effects. The medical charts showed Lowry denied

experiencing any of Remeron's side effects during a medical visit. Although drowsiness

is a possible side effect, the court found Lowry was not drowsy during the plea hearing.

       The court found Lowry denied under oath having taken any medications affecting

his ability to understand the proceedings, he appeared lucid at the time of the plea and he

chose to enter the plea after considering his options. The court therefore found Lowry

did not meet his burden to prove by clear and convincing evidence that he did not

knowingly, voluntarily and intelligently waive his rights.

       Lowry obtained a certificate of probable cause and appeals.

                                      DISCUSSION

                                             I

       A court may permit a defendant to withdraw a guilty plea if the defendant shows

good cause by clear and convincing evidence. (§ 1018; People v. Nance (1991)

1 Cal.App.4th 1453, 1456.) Good cause includes "[m]istake, ignorance or any other

factor overcoming the exercise of free judgment." (People v. Johnson (2009) 47 Cal.4th

668, 679.) The court may consider its own observations of the defendant's mental state

during the plea hearing to assess whether the defendant knowingly entered the plea.

(People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank); People v. Ravaux (2006)

142 Cal.App.4th 914, 918.)



                                             5
       "We recognize that an accused's claim of innocence does not preclude entry of a

guilty . . . plea where the court taking the plea ascertains a 'factual basis' therefor." (In re

Alvernaz (1992) 2 Cal.4th 924, 940, fn. 9.) Accordingly, a "plea may not be withdrawn

simply because the defendant has changed his mind." (People v. Huricks (1995) 32

Cal.App.4th 1201, 1208, citing People v. Nance, supra, 1 Cal.App.4th at p. 1456.)

       The trial court's exercise of discretion to grant or deny a defendant's motion to

withdraw a guilty plea "is final unless the defendant can show a clear abuse of that

discretion." (Fairbank, supra, 16 Cal.4th at p. 1254.) " 'Guilty pleas resulting from a

bargain should not be set aside lightly and finality of proceedings should be

encouraged.' " (People v. Ravaux, supra, 142 Cal.App.4th at p. 919, quoting People v.

Hunt (1985) 174 Cal.App.3d 95, 103.) We " 'must adopt the trial court's factual findings

if substantial evidence supports them.' " (People v. Breslin (2012) 205 Cal.App.4th 1409,

1416, quoting Fairbank, supra, at p. 1254.)

                                               II

       Lowry contends the trial court abused its discretion when it denied his motion

because he was drowsy and his thinking was affected by psychotropic medication when

he entered the plea. Lowry argues Remeron's side effect of drowsiness rendered him

unable to knowingly and intelligently waive his trial rights. The trial court's finding

otherwise is supported by substantial evidence.

       In response to the court's questioning, Lowry stated under oath he read and

understood the contents of the plea form. The court asked Lowry if he had taken any

medication, drugs or substance of any kind that would affect his ability to understand the

                                               6
proceedings. Lowry responded he had not. Lowry's former attorney testified Lowry did

not appear to be under the influence of any drug when he signed and entered the plea.

Moreover, the court found Lowry was "lucid" and "anything but drowsy" when he

entered his guilty plea.

       The only exculpatory evidence Lowry presents is his assertion of innocence,

which alone is unpersuasive when the trial court has found a factual basis for the plea.

(See In re Alvernaz, supra, 2 Cal.4th at p. 940, fn. 9.) The court also found Lowry made

a rational decision to plead guilty after he considered the risks of going to trial,

considering he would have faced a five-year sentence enhancement if convicted.

Accordingly, Lowry is not permitted to withdraw his guilty plea because he has now

changed his mind. (People v. Huricks (1995) 32 Cal.App.4th at p. 1208.)

       Because there is substantial evidence that Lowry knowingly, voluntarily, and

intelligently waived his right to trial, the trial court did not abuse its discretion when it

denied Lowry's motion to withdraw his guilty plea.

                                        DISPOSITION

The judgment is affirmed.


                                                                          MCCONNELL, P. J.

WE CONCUR:

HALLER, J.

AARON, J.




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