People v. Ramirez CA4/3

Filed 4/16/15 P. v. Ramirez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G050499
v. (Super. Ct. 10HF0027)
JAIME ZAMORA RAMIREZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Kazuharu
Makino, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice
pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Edward J. Haggerty, by appointment of the Court of Appeal, for Defendant
and Appellant.
No appearance for Plaintiff and Respondent.
* * *
This is a familiar case. It has made two previous trips to this court, first on
issues pertaining to the sufficiency of the evidence for one of the sentencing enhancement
allegations against appellant, and then on a challenge to the restitution order. The result
was two victories for appellant Jaime Zamora Ramirez. Unfortunately, that streak ends
with this appeal, in which there are just no issues left.
The case stems from appellant’s conviction of sexual penetration by a
foreign object by force (Pen. Code, § 289, subd. (a)(1)) and two counts of forcible rape
(Pen. Code, § 261, subd. (a)(2)) on different victims. After that conviction, Ramirez
successfully challenged the sufficiency of the evidence to support one of his prior felony
allegations. Then, after that error was corrected, he challenged the restitution award on
the same grounds. He won again. Now a new restitution award has been entered. The
court has done what we said it had to do. But appellant has brought a third appeal. The
problem is there are no issues left.
In People v. Senior (1995) 33 Cal. App. 4th 531, 533, 538, it was explained
that, “when a criminal defendant could have raised an issue in a previous appeal but did
not do so, the defendant may be deemed to have waived the right to raise the issue in a
subsequent appeal” “when (1) the issue was ripe for decision by the appellate court at the
time of the previous appeal; (2) there has been no significant change in the underlying
facts or applicable law; and (3) the defendant has offered no reasonable justification for
the delay.” There are, of course, exceptions to this rule, but they are very limited, and
none has ever been applied to a case where defendant has already had two appeals.
Appellant cannot, therefore, raise any issues about his trial or sentencing
that have already been raised, or that could have been raised in the earlier appeals. This
means appellant is limited to issues pertaining to what is left here: the restitution order.
And since we have already ruled on that and instructed the court what to do, and it has
done it, there is really nothing left to argue.
We appointed counsel to represent appellant on this appeal. Counsel filed a
brief which set forth the procedural facts of the case (the facts of the crimes themselves
are irrelevant because the only available issue is the restitution hearing). Counsel did not
argue against his client, but advised us there were no issues to argue on his behalf.
Appellant was invited to express his own objections to the proceedings against him, but
did not. Under the law, this put the onus on us to review the record and see if we could
find any issues that might result in some kind of amelioration of appellant’s lot. (People
v. Wende (1979) 25 Cal. 3d 436.) It should be emphasized that our search was not for
2
issues upon which appellant would prevail, but only issues upon which he might possibly
prevail.
We have examined the record and found no arguable issue. This is not
surprising. In fact, it is what we find in the vast majority of cases in which appellate
counsel files a Wende brief. Even the most cynical observer of the appellate system
would have to recognize that appellate counsel has a financial incentive for finding
issues. The simple fact is that counsel makes more money if he/she finds an issue that is
arguable than if he/she does not. So while it sometimes happens that an appellate court
will find issues after appellate counsel has thrown in the towel, it is unusual.
This case is not unusual – at least not in any way that would benefit
appellant. In fact, the procedural posture of the case limits us to one issue – was there
error in the restitution order entered by the court in response to our ruling in the last
appeal? Counsel could find none and neither can we. There was a colloquy between the
court below and counsel about the propriety of allowing a “do-over” under the
circumstances, but once the record was clarified, that issue was effectively disposed of.
Since we can find no other arguable issues, the judgment is affirmed.
BEDSWORTH, J.
WE CONCUR:
O’LEARY, P. J.
FYBEL, J.
3