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Filed 4/16/15 P. v. Ramirez CA4/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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