THE PEOPLE v. ANDRE ARTEBERRY (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Andre L. Arteberry forced his female victim at gunpoint to drive to a bank and withdraw money before raping her.   He was arrested and charged with kidnapping to commit robbery (Pen.Code, § 209, subd. (b)(1),¹ count 1), forcible sexual penetration by a foreign object (§ 289, subd. (a)(1), counts 2 and 5), forcible sodomy (§ 286, subd. (c)(2), count 3), forcible rape (§ 261, subd. (a)(2), counts 4 and 6), second degree robbery (§ 211, count 7) and forgery (§ 470, subd. (d), count 8).   The information specially alleged that Arteberry personally used a handgun to commit the offenses (§§ 12022.53, subd. (b), 12022.5, subd. (a)).  He entered a plea of not guilty and denied the special allegations.

In ruling on Arteberry's pretrial motions, the trial court agreed to admit evidence that the victim abused marijuana on the day of the alleged sexual assault.   The court determined that evidence of the victim's prior bad acts (arrest for shoplifting) and purported mental illness would be excluded.

During jury selection, the prosecutor informed Arteberry in the trial court's presence of a “final” plea offer.   Arteberry, who was represented by retained counsel, asked the court whether it was “the best deal.”   The court responded the offer was “a gift.”   Arteberry decided to accept the plea offer, but then changed his mind twice, and the court proceeded to impanel a jury.

During a brief recess, Arteberry conferred with his counsel, and when proceedings resumed, Arteberry told the court he wanted to accept the plea offer.   Arteberry thereafter waived his right to trial, entered a plea of no contest to forcible rape and admitted the amended enhancement of kidnapping for the purpose of committing the rape (§ 667.8, subd. (a)).  At the time Arteberry entered his plea, he was advised of his constitutional rights and the nature and consequences of his plea.   Arteberry stated he understood and waived his constitutional rights, acknowledged he understood the consequences of his plea and admission and accepted the terms of the negotiated agreement.   His plea was entered pursuant to People v. West (1970) 3 Cal.3d 595.

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 Arteberry's constitutional rights and stipulated to a factual basis for the plea.   In accordance with the plea agreement, Arteberry was sentenced to an aggregate state prison term of 12 years, consisting of the lower term of three years for forcible rape enhanced by nine years under section 667.8, subdivision (a).   The remaining charges and allegations were dismissed on the prosecution's motion.

The trial court awarded Arteberry 412 days of presentence custody credit (359 actual days and 53 days of conduct credits).   The court ordered Arteberry to pay a $30 security assessment, a $30 criminal conviction assessment and a $200 restitution fine.   The court imposed and suspended a parole revocation fine pursuant to section 1202.45.   The court ordered payment of victim restitution in the amount of $3,709.20, but reserved jurisdiction to modify the order at Arteberry's request.

Arteberry filed a timely notice of appeal and a request for a certificate of probable cause.   In his request for a certificate of probable cause, Arteberry checked the preprinted boxes indicating he was challenging “the sentence or other matters occurring after the plea” as well as “the validity of the plea or admission.”   In the box for “other basis for this appeal,” Arteberry wrote, “Exclusion of Evidence.”   The request for a certificate of probable cause was denied.   We appointed counsel to represent Arteberry on appeal.

After examination of the record counsel filed an opening brief in which no issues were raised.   On April, 4, 2011, we advised Arteberry he had 30 days within which to personally submit any contentions or issues he wished us to consider.   On April 14, 2011, Arteberry filed a handprinted supplemental brief in which he claimed:  (1) He received “ineffective assistance of counsel/conflict of interest” because his attorney failed to investigate potential defenses and coerced him into accepting the plea agreement;  (2) the trial court improperly denied Arteberry's pretrial motions to admit evidence of the victim's bad acts and mental illness;  (3) the prosecutor exercised peremptory challenges in an unconstitutional manner to remove African–Americans from the jury;  and (4) the trial court improperly engaged in plea discussions and failed to allow Arteberry sufficient time to fully consider the plea offer.

We have examined the entire record and are satisfied Arteberry'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;  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 the plea's validity.  (Cal. Rules of Court, rule 8.304(b).)  Because Arteberry is, in essence, attacking the validity of his plea without a certificate of probable cause, 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.)

The appeal is dismissed.

We concur:

FOOTNOTES

FN1. Statutory references are to the Penal Code unless otherwise indicated..  FN1. Statutory references are to the Penal Code unless otherwise indicated.

PERLUSS, P. J. JACKSON, J.