Fadelli Concrete Pumping, Inc. v. Appellate Department, s. H012900

• Decision Date: 04 May 1995
• Docket Number: Nos. H012900,H012881,s. H012900
• Court: California Court of Appeals Court of Appeals
• Parties: FADELLI CONCRETE PUMPING, INC., etc., Petitioner, v. The APPELLATE DEPARTMENT of the Superior Court of Santa Clara County, Respondent; The PEOPLE of the State of California, Real Parties in Interest. The PEOPLE of the State of California, Plaintiff and Appellant, v. FADELLI CONCRETE PUMPING, INC., etc., Defendant and Respondent.

Page 757

40 Cal.Rptr.2d 757

34 Cal.App.4th 1194

FADELLI CONCRETE PUMPING, INC., etc., Petitioner, v. The APPELLATE DEPARTMENT of the Superior Court of Santa Clara County, Respondent;

The PEOPLE of the State of California, Real Parties in Interest.

The PEOPLE of the State of California, Plaintiff and Appellant, v. FADELLI CONCRETE PUMPING, INC., etc., Defendant and Respondent.

Nos. H012900, H012881.

Court of Appeal, Sixth District, California.

May 4, 1995.

George W. Kennedy, Dist. Atty., Joseph Thibodeaux, Deputy Dist. Atty., Kaci R. McKeown, for appellant and respondent.

Bryce C. Anderson, Anthony J. De Maria, Filice & De Maria, Concord, for petitioner and respondent.

COTTLE, Presiding Judge.

Defendant Fadelli Concrete Pumping, Inc. was convicted in a court trial of violating Vehicle Code section 35551, which prohibits operating a vehicle over certain statutory weight limits without a permit. The municipal court imposed a fine of $482. The People appealed, claiming that the applicable fine should have been in excess of $22,000, and that the municipal court had no discretion to assess a smaller fine. We hold that under the circumstances presented here, the People may not challenge the allegedly unauthorized sentence imposed by the municipal court in a misdemeanor case, either by appeal or by extraordinary writ. We therefore grant defendant's motion to dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

On October 13, 1992, a California Highway Patrol officer stopped a five-axle concrete pumper truck owned by defendant within the city limits of San Jose, and asked the driver to show permits to operate the vehicle. The driver had a State of California permit to operate an overweight vehicle (up to 99,375 pounds), but had no overweight vehicle permit issued by the City of San Jose. ¹ At a public scale, the officer determined that the truck weighed 103,900 pounds, and issued a citation indicating that the truck was 41,900 pounds overweight. A few days later, the same officer stopped a four-axle truck owned by defendant, resulting in a citation indicating that the four-axle truck was 15,400 pounds overweight.

On each citation, the charge against defendant was the same: a misdemeanor violation of Vehicle Code section 35551, subdivision (a). After a court trial held on May 27, 1993, the court found Defendant Fadelli Concrete Pumping, Inc. not guilty on the citation involving the four-axle truck. ² With regard to the five-axle truck, the court found defendant guilty of operating a vehicle 4,525 pounds overweight, and imposed a fine of $482. ³ Defense counsel inquired if the fine could be paid by August 1, 1993, and the court indicated that this was acceptable. The People made no objection to this payment date.

On June 21, 1993, the People filed an appeal in the appellate department of the superior court "from the sentencing order ... rendered on May 27, 1993." In their appeal, the People contended (1) that the weight allowable under Vehicle Code section 35551 for defendant's five-axle truck, without a permit, was 62,000 pounds; (2) that without a Defendant moved to dismiss the appeal, claiming that Penal Code section 1466 does not allow the People to appeal an allegedly unauthorized sentence in a misdemeanor case. In response, the People argued that they were appealing not the sentence, but the order allowing defendant until August 1, 1993, to pay the fine. Alternatively, the People argued that even if the sentence could not be challenged by appeal, they had the right to seek review by extraordinary writ.

City of San Jose permit, defendant's truck was limited to that 62,000-pound weight inside San Jose city limits; and (3) that the truck, at 103,900 pounds, was therefore actually 41,900 pounds overweight. The People claimed that under Vehicle Code section 42030, subdivision (a), fines and penalties of $22,627 should have been imposed, and that the municipal court had no discretion to impose a lesser fine.

On June 9, 1994, the appellate department of the superior court remanded the case to the municipal court for clarification of the municipal court's factual finding regarding the amount of weight that defendant's truck was overloaded, noting that the evidence presented at trial suggested that the truck was 41,900 pounds overweight, but at the conclusion of the trial, the municipal court made comments suggesting that it found, as a matter of fact, that the truck was only 4,525 pounds overweight. The appellate department stated: "If the trial court finds that defendant's truck was overloaded by 41,900 pounds, then it must comply with the appropriate statute and order the fine as set forth in that statute." In its decision, the appellate department did not address defendant's motion to dismiss the appeal.

On June 21, 1994, defendant filed a petition for rehearing and for certification of transfer to this court, noting that the appellate department had not decided defendant's motion to dismiss the appeal, and had not considered the jurisdictional issue. On July 26, 1994, defendant also filed a petition with the California Supreme Court for a writ of certiorari, which was transferred to this court.

The appellate department of the superior court denied defendant's request for rehearing, but granted defendant's request to transfer the case to this court pursuant to rule 63 of the California Rules of Court. ⁴ This court accepted the transfer from the appellate department on August 10, 1994. The transfer and certiorari proceedings have been consolidated for determination.

DISCUSSION

Appealability of the Misdemeanor Sentence

The primary question in this case is whether the People can challenge an allegedly unlawful sentence imposed by a municipal court in a misdemeanor case, either by appeal or by extraordinary writ. As a general rule, the People have no right of appeal in criminal cases except as granted by statute. (People v. Kirk (1992) 7 Cal.App.4th 855, 859, 9 Cal.Rptr.2d 270; People v. Smith (1983) 33 Cal.3d 596, 600, 189 Cal.Rptr. 862, 659 P.2d 1152.) The People's right to appeal in infraction or misdemeanor cases taken from municipal or justice courts is governed by Penal Code section 1466. Subsection (a)(1) of this statute provides that the People may appeal from the following: "(A) From an order recusing the district attorney.... [p] B) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy. [p] (C) From a judgment for the defendant upon the sustaining of a demurrer. [p] (D) From an order granting a new trial. [p] (E) From an order arresting judgment. [p] (F) From any order made after judgment affecting the substantial rights of the people...."

In contrast, Penal Code section 1238, which governs appeals from superior courts in criminal cases, specifically authorizes the People to appeal from "[t]he imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence...." (Pen.Code § 1238, subd. (a)(10).) This subdivision was added in 1986. (Stats.1986, ch. 59, § 1, pp. 169-170.)

The Legislature's failure to provide for appeals from the imposition of unlawful sentences imposed by inferior courts in Penal Code section 1466, while adding a distinct provision in Penal Code section 1238 for such appeals from superior courts, raises a strong inference that the Legislature did not intend to allow the People to appeal from the imposition of allegedly unlawful sentences by municipal or justice courts in misdemeanor cases. " ' "Where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject ... is significant to show that a different intention existed." ' " (People v. Drake (1977) 19 Cal.3d 749, 755, 139 Cal.Rptr. 720, 566 P.2d 622 [quoting People v. Valentine (1946) 28 Cal.2d 121, 142, 169 P.2d 1].)

The circumstances here are similar to those in People v. Ventura (1978) 84 Cal.App.3d Supp. 8, 148 Cal.Rptr. 581. In Ventura, the trial court imposed sentences of less than the mandatory 90 days in jail in 10 separate cases involving violations of Health and Safety Code section 11550. The prosecution appealed, contending that the trial court had no discretion to impose sentences of less than the mandatory 90 days. The Appellate Department of the Los Angeles County Superior Court dismissed the appeal. Noting that an order or judgment is not appealable unless it is expressly made so by statute, the court stated: "It makes no difference that the appeal is taken from a mistaken ruling: '... [I]f the order is not appealable under accepted rules concerning appealability, we should not by fiat announce that it is appealable merely because it is egregiously erroneous.' ... 'The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases....' " (Ventura, at 10, 148 Cal.Rptr. 581.) We are persuaded by the reasoning of the Ventura case that a judgment is not appealable unless the appeal is authorized by statute. As in Ventura, the judgment here (a $482 fine) is not appealable under Penal Code section 1466, and it does not become appealable merely because it was allegedly unauthorized or erroneous.

Seeking to escape this predicament, the People argue that their appeal is authorized by subdivision (a)(1)(F) of Penal Code section 1466. That subdivision allows the People to appeal "[f]rom any order made after judgment affecting the substantial rights of the people."

The $482 fine challenged by the People here cannot be considered an appealable "order ... after judgment." In a criminal case, judgment is synonymous with the imposition of sentence. (People v. Warner (1978) 20 Cal.3d 678, 682, fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237; Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182.) In this case, the...