Filed 4/16/15 P. v. Ramirez CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JAIME ZAMORA RAMIREZ, 

 Defendant and Appellant. 

 G050499 

 (Super. Ct. 10HF0027) 

 O P I N I O N 

 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. 
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 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 
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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.