THE PEOPLE v. MATTHEW LAURENCE BROWN

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. MATTHEW LAURENCE BROWN, Defendant and Appellant.

B225294

Decided: February 23, 2011

James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Defendant Matthew Laurence Brown appeals from the judgment entered following a negotiated plea to one count of making a criminal threat (Pen.Code,1 § 422.)   We dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant refused to stop harassing a fellow Santa Monica City College student.   After he was continuously rebuffed, defendant sent the student a threatening text message.   A college dean who was investigating defendant's reported behavior received an e-mail from him that read, in part, “if I have to take matters into my own hands, it is going to be horrific for some people.   I have nothing to lose․  And the outcome of my dealing with it will be unimaginable in the history of Santa Monica College.”

Defendant was arrested and charged by information with felony counts of making a criminal threat against and stalking the fellow student (§§ 422, 646.9, subd. (a)), and one felony count of making a criminal threat against the college dean (§ 422).   Represented by appointed counsel, defendant entered a not guilty plea.

Defendant's motion to relieve his appointed counsel (People v. Marsden (1970) 2 Cal.3d 118) was heard and denied.   At the hearing, defendant agreed to have his motion to represent himself (Faretta v. California (1975) 422 U.S. 806, 836 [95 S.Ct. 2525, 45 L.Ed.2d 562] ) deferred to a later date.

When defendant next appeared in court, he waived his right to a jury trial and entered a plea of no contest to making a criminal threat, which the trial court reduced to a misdemeanor on the People's motion. (§ 17, subd. (b)(4).)   At the time defendant entered his plea, he was advised in writing of his constitutional rights and the nature and consequences of his plea.   Defendant stated he understood and waived his constitutional rights, acknowledged that he understood the consequences of his plea and admission and accepted the terms of the negotiated agreement.2

The trial court found the plea was freely and voluntarily entered, and there was a factual basis for the plea.   Defense counsel joined in the waivers of defendant's constitutional rights in the plea and stipulated to a factual basis of the plea pursuant to People v. West (1970) 3 Cal.3d 595.   Defendant's plea agreement called for him to be placed on three years of summary probation, on condition he serve 240 days in county jail, with credit for time served.   He was ordered to stay away from the fellow student for 10 years, and the college dean and Santa Monica City College for three years.   The trial court ordered defendant to pay a court security fee of $30, a criminal conviction fine of $30, and a restitution fine of $100.   The remaining counts were dismissed on the People's motion.   Defendant did not renew his motion to represent himself at the hearing.

DISCUSSION

Defendant timely filed a notice of appeal in which he checked the preprinted box indicating he was challenging the validity of the plea or admission.   In his request for a certificate of probable cause, which was denied, defendant recited his version of the underlying facts at length and complained his Marsden motion should have been granted.

We appointed counsel to represent defendant on appeal.   After examination of the record, counsel filed an opening brief in which no issues were raised.   On October 7, 2010, we advised defendant he had 30 days within which to personally submit any contentions or issues he wished us to consider.   No response has been received to date.

We have examined the entire record and are satisfied defendant's attorney has fully complied with the responsibilities of counsel and no arguable issues exist.  (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106, 118-119;  People v. Wende (1979) 25 Cal.3d 436, 441.)

A criminal defendant who appeals following a plea of no contest or guilty without a certificate of probable cause can only challenge the denial of a motion to suppress evidence or raise grounds arising after the entry of the plea that do not affect its validity.  (Cal. Rules of Court, rule 8.304(b).)  In the absence of a certificate of probable cause, because defendant is attacking the validity of his plea, his notice of appeal is inoperative.   The appeal must be dismissed. (§ 1237.5;  see People v. Shelton (2006) 37 Cal.4th 759, 769-771;  People v. Panizzon (1996) 13 Cal.4th 68, 79.)

DISPOSITION

The appeal is dismissed.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code, unless otherwise indicated..  FN1. All further statutory references are to the Penal Code, unless otherwise indicated.

FN2. The felony advisement of rights, waiver and plea form is not part of the record on appeal.   Defendant told the trial court he had reviewed the form with his attorney..  FN2. The felony advisement of rights, waiver and plea form is not part of the record on appeal.   Defendant told the trial court he had reviewed the form with his attorney.

WOODS, Acting P. J. ZELON, J.