Opinion
Previously published at 227 Cal.App.3d 447
Rehearing Granted Feb. 28, 1991.
Defendant was convicted in the Superior Court, San Francisco County, Jack K. Berman, J., of assault with deadly weapon, pursuant to his plea of nolo contendere, and he appealed. The Court of Appeal, Stein, J., held that defendant's claims that his motions to replace trial counsel were improperly denied and that he was not advised that consequence of his plea would be that he pay probation charges and restitution were not cognizable on appeal.
Affirmed.
Alexander G. van Broek, San Francisco, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Laurence K. Sullivan, Supv. Deputy Atty. Gen., Rene A. Chacon, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.
STEIN, Associate Justice.
Lawrence E. Ross was charged with two counts of forcible rape (Pen.Code, § 261, subd. (2)), one count of forcible oral copulation (Pen.Code, § 288, subds. (a) and (c)), and one count of assault with a deadly weapon (Pen.Code, § 245, subd. (a)(1)). It was further alleged that the rape and oral copulation offenses were serious felonies within the meaning of Penal Code section 1192.7, subdivision (c)(3) and (5), and that Ross had suffered three prior felony convictions. Ross pled no contest to the charge of assault with a deadly weapon. The remaining charges were dismissed and the allegations of prior felony convictions stricken. Imposition of sentence was suspended, and Ross was placed on probation for three years on condition he pay $100 restitution and $25 per month towards probation costs.
By Pleading Nolo Contendere Ross has Waived the Right to Challenge the Court's Ruling on His Marsden Motions (People v. Marsden (1970) 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44)
Ross raises two appellate issues: (1) that the trial court improperly denied his motions to replace trial counsel and (2) that he was not advised that a consequence of his plea of nolo contendere would be that he pay probation charges and restitution. Where, as here, judgment was entered upon a plea of nolo contendere, a defendant may not appeal "except where the defendant has filed as part of the notice of appeal a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings." (Pen.Code, § 1237.5.) Ross has not filed the requisite written statement.
California Rules of Court, rule 31(d), further defines the rule of section 1237.5, providing that "If a judgment of conviction is entered upon a plea of guilty or nolo contendere, the defendant shall file with the notice of appeal the statement required by section 1237.5 of the Penal Code." There are two exceptions to this requirement, neither There is no question but that neither issue raised by Ross in his appellate brief involves an issue of search and seizure. There further is no question but that Ross's arguments relating to the denial of his pretrial motions do not state grounds occurring after entry of his plea. (See People v. Masten (1982) 137 Cal.App.3d 579, 585, 187 Cal.Rptr. 515, and People v. Everett (1986) 186 Cal.App.3d 274, 278-279, 230 Cal.Rptr. 604, holding that a claim that ineffective assistance of counsel resulted in the plea--a claim which is at the heart of Ross's Marsden argument--may not be made absent compliance with the provisions of section 1237.5.) Ross's argument as to the condition of restitution is that his plea was invalid because he had not been advised that he would be required to pay restitution; i.e., that he should have been advised of the consequences of his plea before he entered it. That argument also is not cognizable absent a filing of the statement required by Penal Code section 1237.5. (People v. Robinson (1988) 205 Cal.App.3d 280, 282-283, 252 Cal.Rptr. 202.)
The judgment is affirmed.
RACANELLI, P.J., and NEWSOM, J., concur.