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Court of Appeal, First District, Division 1, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Lawrence E. ROSS, Defendant and Appellant.

No. A047963.

Decided: January 31, 1991

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.

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 of which applies here:  “If the appeal from a judgment of conviction entered upon a plea of guilty or nolo contendere is based solely upon grounds (1) occurring after entry of the plea which do not challenge its validity or (2) involving a search or seizure, the validity of which was contested pursuant to section 1538.5 of the Penal Code, the provisions of section 1237.5 of the Penal Code requiring a statement by the defendant are inapplicable, but the appeal shall not be operative unless the notice of appeal states that it is based upon such grounds.”  (See also People v. Knauer (1988) 206 Cal.App.3d 1124, 253 Cal.Rptr. 910 recognizing these exceptions and holding that as to them, the failure to state the appropriate grounds in the notice of appeal is not jurisdictional.)

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.

STEIN, Associate Justice.

RACANELLI, P.J., and NEWSOM, J., concur.

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