Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 030006344
SCOTLAND, P.J.
After defendant Joshua Flaherty pled no contest to felony hit and run causing injury (Veh. Code, § 20001, subds. (a) & (b)(1)), he moved to withdraw his plea. The sole ground for the motion was that when he entered his plea with the promise that he would “not [be] sentenced to state prison at the outset,” defendant “did not realize that a felony conviction would adversely affect his life and future employment opportunities.” The motion was denied.
Consistent with the plea agreement, the court (Temporary Judge Van Court) on April 7, 2004, placed defendant on formal probation for three years subject to conditions, including that he serve a period of incarceration in the county jail, that he pay victim restitution (Pen. Code, § 1202.4, subd. (a)(1)) in a sum to be determined that would “cover[] losses relating to the charge he stands convicted of,” and that he pay a restitution fine of $200. (Pen. Code, § 1202.4, subds. (a)(3)(A), (b)(1); further section references are to the Penal Code.)
Six months later, a petition was filed, alleging that defendant had violated his probation by, among other things, failing to appear for drug testing and failing to attend “AA/NA” meetings as ordered by the court.
Defendant admitted violating a condition of his probation, and the court (Judge Shockley) reinstated defendant’s probation with the additional conditions that he submit to a “treatment assessment” and enroll in a treatment program.
Five months later, a petition was filed, alleging that defendant violated his probation by “fail[ing] to report to the Probation Department as directed” and “fail[ing] to appear in Court as ordered.”
During a contested hearing, defendant made a Marsden motion to obtain substitute counsel. (People v. Marsden (1970) 2 Cal.3d 118.) The motion was denied, and the court (Judge Shockley) found that defendant violated conditions of probation. The court revoked his probation, sentenced him to the middle term of two years in state prison for felony hit and run causing injury, ordered him to pay the $200 restitution fine (§ 1202.4, subds. (a)(3)(A), (b)(1)), and imposed another $200 restitution fine, which the court stayed unless parole is revoked (§ 1202.45).
Defendant appealed, contending the trial court erred in imposing a second $200 restitution fine in addition to the $200 restitution fine that was imposed when he was placed on probation. This court affirmed the judgment, concluding that only one $200 restitution fine was imposed, i.e., the judgment ordering defendant to pay a $200 restitution fine was simply an order directing him to pay the fine that had previously been imposed.
After defendant’s release on parole, the court (Judge Shockley) held a hearing regarding the victim restitution that defendant had been ordered to pay in an amount to be determined by the court. On January 8, 2007, the court accepted the parties’ stipulation to the amount of victim restitution, $51,178, based on the monetary loss suffered by the victim as a result of defendant’s crime.
Defendant now appeals from the postjudgment order determining the amount of victim restitution to be $51,178. His request for a certificate of probable cause (§ 1237.5) was denied.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief which asks us “to consider: 1. I was promised no [state] prison. [¶] 2. I was coerced to sign probation papers. [¶] 3. The same attorney who[m] I had put on the stand for fraudulently inducing the plea bargain is the same attorney who represented me on this order for restitution. . . . [¶] 4. Different judges and attorneys were implemented through[ou]t my case [and] I was sentenced by a judge who I feel was not even familiar with my case. [¶] 5. My legal status summary sheet from the D.O.C. states that I have priors. I have never been in a county jail before and I feel that false information on the D.O.C. report swayed the judge[’]s decision for sentencing in my case.”
The assertions numbered 1 and 2 are not cognizable in this appeal. Because they challenge the validity of defendant’s plea, they are precluded by the absence of a certificate of probable cause (§ 1237.5) and, in any event, the claim is untimely since it had to be raised by appeal from the order of April 7, 2004, granting defendant probation. (People v. Senior (1995) 33 Cal.App.4th 531, 533 [“[W]hen 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, absent a showing of good cause or justification for the delay”].) This rule is applied where, as in this case, “(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.” (Id. at p. 538.)
Also untimely are the assertions made in points 4 and 5, to the extent that they can be interpreted to challenge orders other than the order of January 8, 2007, determining the amount of victim restitution. (People v. Senior, supra, 33 Cal.App.4th at p. 533.)
Failing on the merits is defendant’s complaint number 3 that the public defender who was the subject of defendant’s Marsden motion during the sentencing hearing on September 29, 2005, should not have represented him at the victim restitution hearing on January 8, 2007. The trial court denied the Marsden motion, thus necessarily finding that defendant’s attack on his public defender was untrue. Because his Marsden motion was denied, defendant was not entitled to another attorney. (People v. Smith (1993) 6 Cal.4th 684, 695.)
To the extent that defendant’s complaint number 4 is directed to Judge Shockley, who determined the amount of victim restitution from which defendant appeals, it has no merit. Judge Shockley has been involved in this case since March 4, 2005. She presided over both probation violation hearings, and the sentencing transcript from September 2005 reveals that she was quite familiar with the facts of the case and matters related to defendant specifically. Defendant’s assertion in point 5 that he “feels” the court was “swayed” by what defendant says is false information in his legal status summary sheet from the Department of Corrections and Rehabilitation is unsupported by anything in the record and, thus, is frivolous.
Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.
The judgment is affirmed.
We concur: DAVIS, J., NICHOLSON, J.