Opinion
B330948
03-26-2024
THE PEOPLE, Plaintiff and Respondent, v. MANUEL STEVEN JOHN MARTINEZ POLYANTOINE HORSE III, Defendant and Appellant.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. MA076741 Daviann L. Mitchell, Judge. Affirmed.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
We resolve this case by memorandum opinion because it "is determined by a controlling statute which is not challenged for unconstitutionality and does not present any substantial question of interpretation or application." (Cal. Stds. Jud. Amin., § 8.1(1).)
WEINGART, J.
Defendant Manuel Steven John Martinez Polyantoine Horse III is serving a life sentence of imprisonment. On July 26, 2017, while imprisoned, defendant used his fist to hit a correctional officer in the face and chest, and used a cane to strike another correctional officer. On July 5, 2018, defendant was present at a hearing within the prison to determine if he should remain in administrative segregation. At the hearing's conclusion, defendant called the committee chair (an associate warden) a "fucking bitch" and spat into her face; his saliva made contact with the left side of the associate warden's face and went into her left eye.
An amended information charged defendant with aggravated battery while confined in state prison (Pen. Code,§ 4501.1, subd. (a); count 1) related to the 2018 spitting incident. It also charged battery on a non-confined person by a prisoner (§ 4501.5; counts 2 & 3) and assault by a life prisoner (§ 4500; count 5) based on the 2017 incident. The amended information further alleged that defendant suffered a prior conviction that qualified as a strike within the meaning of sections 667, subdivisions (b) through (i), and 1170.12.
All unspecified statutory references are to the Penal Code.
The People dismissed count four.
On May 8, 2023, defendant pleaded no contest to count one and admitted the strike allegation in exchange for an agreed upon sentence of two years to be served consecutive to the sentences he was already serving. On May 30, 2023, the court imposed the agreed-upon sentence.
Defendant personally filed a handwritten notice of appeal from the judgment of conviction and requested appointment of counsel. Defendant did not request a certificate of probable cause, nor did he file the written statement required by section 1237.5 for the issuance of a certificate of probable cause. On August 24, 2023, this court issued an order limiting the appeal to issues that do not require a certificate of probable cause.
We appointed counsel to represent defendant in this appeal. After reviewing the record, counsel filed a brief under People v. Wende (1979) 25 Cal.3d 436, identifying no issues on appeal and requesting that we independently review the record to determine whether there are any arguable issues. Defendant was notified that he could submit a letter or brief stating any grounds for an appeal, or contentions or arguments that he wished this court to consider. Defendant submitted a brief on February 29, 2024, that we have read and considered; it claims that defendant did not receive effective assistance of counsel in the trial proceedings.
A defendant who appeals following a plea of no contest 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. (§ 1237.5; Cal. Rules of Court, rule 8.304(b); People v. Johnson (2009) 47 Cal.4th 668, 676-677 & fn. 3.) There was no motion to suppress evidence in this case, nor does the record indicate grounds for any such motion. The record also does not suggest any grounds arose after the entry of defendant's plea that affected its validity. The lack of a certificate of probable cause bars defendant's assertion of ineffective assistance of counsel. Because defendant's claim of ineffective assistance challenges the propriety of events leading up to his guilty plea, "defendant was required to obtain a certificate of probable cause from the trial court in order to raise [that] issue on appeal. [Citations.] This he failed to do." (People v. Stubbs (1998) 61 Cal.App.4th 243, 244-245.)
Having examined the entire record, we are satisfied that no arguable issues exist and that defendant's attorney has complied with the responsibilities of counsel. (People v. Kelly (2006) 40 Cal.4th 106, 125-126; People v. Wende, supra, 25 Cal.3d at pp. 441-442.) "In the absence of a certificate" of probable cause, an "appeal is inoperative." (People v. Stubbs, supra, 61 Cal.App.4th at p. 245.) We accordingly must order its dismissal. (In re Chavez (2003) 30 Cal.4th 643, 651.)
DISPOSITION
The appeal is dismissed.
We concur: CHANEY, J. BENDIX, Acting P. J.