P. v . Howard
Filed 2/1/13 P. v . Howard CA4./2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ROLAND HOWARD,
Defendant
and Appellant.
E056610
(Super.Ct.No.
FVI1001089)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Jules E. Fleuret, Judge.
Affirmed.
John
L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.
No
appearance for Plaintiff and Respondent.
Pursuant
to a plea agreement, defendant and appellant Roland Howard pled no contest to
misdemeanor criminal threats. (Pen. Code, § 422.)
probation for a period of two years on various terms and conditions. Approximately two years later, defendant filed
a motion to withdraw his plea and request to dismiss the complaint pursuant to
section 1203.4. Defendant appeals from
the denial of the section 1203.4 motion.
We find no error and affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
On
April 28, 2010, defendant
threatened to kill his wife.
On
May 13, 2010, a felony
complaint was filed charging defendant with one count of felony criminal
threats. (§ 422.) The complaint further alleged that defendant
had suffered one prior serious or violent strike conviction. (§§ 667, subds. (b)-(i), 1170.12, subd.
(a)-(d).)
Following
a preliminary hearing on May 26, 2010, the People moved to
reduce the offense to a misdemeanor. (§
17, subd. (b).) Defendant thereafter
pled no contest to the offense as a misdemeanor and was placed on summary
probation for a period of two years on various terms and conditions, including
paying assessed fines and fees.
On
May 14, 2012, defendant filed a motion to withdraw his plea and request to dismiss
the complaint pursuant to section 1203.4, claiming he had successfully
“fulfilled the terms of probation, paid all fines and fees, is not serving a
sentence for any offense, is not on probation for any offense, nor is charged
with any offense . . . .â€
In
a probation report dated June 12, 2012,
the probation officer noted that, although defendant had no new arrests or
convictions, the probation department was unable to determine whether defendant
had complied with his obligation to pay his fees and fines. The probation department was also unable to
determine whether defendant had complied with the order to stay away from his
wife, since defendant was not referred to the probation department.
At
the hearing on the motion held on June
21, 2012, defense counsel argued that although there may have been
a balance owed on a fine obligation, that balance was on a prior case and not
this case. The trial court noted an
outstanding obligation of $655. The
prosecutor argued that the motion should be denied due to the seriousness of
the underlying charge, the fact that defendant had not registered as an
arsonist in the prior case, and his failure to pay his fines. The trial court denied the motion without
prejudice “in light of the fact the fines and fees have not been paid.â€
DISCUSSION
Defendant
appealed and, upon his request, this court appointed counsel to represent
him. Counsel has filed a brief under the
authority of
and Anders v. California (1967) 386
U.S. 738, setting forth a statement of the case, a summary of the facts and
potential arguable issues, and requesting this court conduct an independent
review of the record.
We
offered defendant an opportunity to file a personal
supplemental brief, but he has not done so.
Pursuant to the mandate of People
v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record
for potential error and find no arguable issues.
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.
J.
We concur:
RICHLI
J.
MILLER
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
