People v. Alice

• Decision Date: 05 July 2007
• Docket Number: No. S144501.,S144501.
• Citation: 41 Cal.4th 668,161 P.3d 163,61 Cal.Rptr.3d 648
• Parties: The PEOPLE, Plaintiff and Appellant, v. Jeffrey Scott ALICE, Defendant and Respondent.
• Court: California Supreme Court

61 Cal.Rptr.3d 648

41 Cal.4th 668

161 P.3d 163

The PEOPLE, Plaintiff and Appellant, v. Jeffrey Scott ALICE, Defendant and Respondent.

No. S144501.

Supreme Court of California.

July 5, 2007.

Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Brent J. Schultze, Deputy District Attorney, for Plaintiff and Appellant.

Denise M. Rudasill, under appointment by the Supreme Court, San Diego, for Defendant and Respondent.

MORENO, J.

For the reasons that follow, we hold that the Court of Appeal violated Government Code section 68081 by holding that the People's appeal in this case was authorized by Penal Code section 1238, subdivision (a)(10) as an appeal from an unlawful sentence, because the parties had neither proposed nor addressed this issue in their briefs. The Court of Appeal compounded this error by denying defendant's petition for rehearing on that basis. We further hold that the appeal in this case from the order setting aside one count of the information under Penal Code section 995 was authorized by Penal Code section 1238, subdivision (a)(1), which permits the People to appeal from an order setting aside any portion of an information, but no appeal lies from the court's purported order granting probation.

FACTS

On January 10, 2005 defendant Jeffrey Scott Alice was charged by information with transporting the controlled substance methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), driving under the influence of alcohol or drugs in violation of Vehicle Code section 23152, subdivision (a), and being under the influence of methamphetamine in violation of Health and Safety Code section 11550, subdivision (a).

Defendant moved to set aside the information under Penal Code section 995. On April 20, 2005, the superior court granted defendant's Penal Code section 995 motion in part, dismissing the driving under the influence charge on the ground that there was no evidence introduced at the preliminary hearing "that the amount of amphetamines [in defendant's system] would have affected his ability to drive." Defendant immediately entered pleas of guilty to the remaining charges so that he could, in the words of defense counsel, "do Proposition 36," stating that defendant "is eligible now." The court accepted defendant's pleas and "set this matter over into Proposition 36 on May 13," ordering defendant to report immediately to the probation department and "[a]dvise them you are now on Proposition 36." The court further ordered defendant to attend three meetings a week of either Narcotics Anonymous or Alcoholics Anonymous. The court docket reflects that sentencing was set for May 13, 2005.

On April 29, 2005, prior to sentencing, the People filed a notice of appeal "from the judgment of the Superior Court ... at the hearing on the Penal Code § 995 motion, April 20, 2005, where the court set aside Count 3 of the Information ... and where the court subsequently accepted a guilty plea to the remaining counts ... whereby defendant was awarded drug treatment probation under Proposition 36." The notice of appeal states that the People "appeal directly from the § 995 order (Penal Code § 1238[, subd.] (a)(1)), as well as from the erroneous order granting drug treatment probation `made after the judgment affecting the substantial rights of the People.' (Penal Code § 1238[, subd.](a)(5)....)"

In its opening brief in the Court of Appeal, the People argued that it had a right to appeal "directly from the § 995 order" and from "the erroneous order granting drug treatment probation" under Penal Code section 1238, subdivision (a)(1) and (5). The People argued that the evidence introduced at the preliminary hearing "proved [defendant] was driving under the influence, in violation of Vehicle Code § 23152[, subdivision] (a)" and that, accordingly, the superior court "erred in granting the § 995 motion" dismissing the charge of driving under the influence.

In his brief in the Court of Appeal, defendant countered that the appeal was barred by Penal Code section 1238, subdivision (d) which, according to defendant, "bars not only the direct appeal of the order granting probation, but also the appeal of other orders, where the appeal in substance is an attack on the probation order." Defendant argued that the People's "direct appeal of the order granting drug treatment probation is barred by section 1238. Likewise, [the People]'s appeal of the order granting the Penal Code section 995 motion as to the driving under the influence charge is also barred because it is in substance an attack on the order granting probation." Defendant further argued that the superior court did not err in granting, in part, defendant's motion to set aside the information.

The People did not file a reply brief.

The Court of Appeal, in an unpublished opinion, held that the People had a right to appeal under Penal Code section 1238, subdivision (a)(10), which authorizes an appeal from the "imposition of an unlawful sentence" reasoning that "the trial court's suspension of the execution of sentence and grant of probation was an illegal sentence resulting from the erroneous grant of defendant's section 995 motion." Ruling that the superior court erred in dismissing the driving under the influence charge, the Court of Appeal reversed the "judgment" and remanded the matter to the superior court with directions "to vacate its order placing defendant on drug treatment probation pursuant to Proposition 36. The court is further directed to vacate its order granting defendant's section 995 motion to dismiss [the driving under the influence count] and enter a new order denying the motion in its entirety."

Defendant petitioned for rehearing under Government Code section 68081, arguing that the Court of Appeal had decided the case based upon an issue "that was not proposed or briefed by any party" — that the appeal was authorized by Penal Code section 1238, subdivision (a)(10) as an appeal from an unlawful sentence — without affording defendant an opportunity to address the issue in a supplemental brief. Defendant stated: "The first time that the issue of whether section 1238, subdivision (a)(10) authorized this appeal ... was raised, was by this court in it's [sic] tentative opinion issued on December 7, 2005.... [¶] Although [defendant] addressed this issue at oral argument, [defendant] respectfully disagrees with this court that oral argument is a sufficient replacement for a thorough, well-written brief of the contested issue." Attached to the petition for rehearing was a copy of the notice to the parties from the Court of Appeal that accompanied the court's tentative ruling, which included the statement: "No supplemental briefing will be accepted because counsel may raise those issues during oral argument. Counsel should refrain from raising new issues not briefed."

The Court of Appeal denied rehearing. As noted above, we granted review.

DISCUSSION

Penal Code section 1238 "governs the People's appeals from orders or judgments of the superior courts." (People v. Douglas (1999) 20 Cal.4th 85, 89-90, 82 Cal.Rptr.2d 816, 972 P.2d 151, fn. omitted.) The statute provides, in pertinent part: "(a) An appeal may be taken by the people from any of the following: [¶] (1) An order setting aside all or any portion of the indictment, information, or complaint. [¶] ... [¶] (5) An order made after judgment, affecting the substantial rights of the people. [¶] ... [¶] (10) The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence...." (Pen.Code, § 1238, subd. (a).) Subdivision (d), however, provides that an order granting probation is not appealable: "Nothing contained in this section shall be construed to authorize an appeal from an order granting probation. Instead, the people may seek appellate review of any grant of probation ... by means of a petition for a writ of mandate or prohibition .... The review of any grant of probation shall include review of any order underlying the grant of probation." (Pen. Code, § 1238, subd. (d).)

As noted above, the People relied on subdivisions (a)(1) and (a)(5) of Penal Code section 1238 in its notice of appeal and in its opening brief to justify its appeal of the order dismissing the driving under the influence charge and the "order granting drug treatment probation," respectively. In response, defendant argued in his brief that the appeal from both the order of dismissal and the "order granting drug treatment probation" were barred by Penal Code section 1238, subdivision (d) as purported appeals from orders granting probation.

The Court of Appeal, however, based its decision upon a different subdivision of section 1238, ruling that the People could appeal from both the order of dismissal and from the purported "order granting drug treatment probation" under Penal Code section 1238, subdivision (a)(10) (hereafter section 1238(a)(10)), which "authorizes an appeal from the `imposition of an unlawful sentence.'" The Court of Appeal denied defendant's petition for rehearing based upon Government Code section 68081.

Government Code section 68081

Government Code section 68081 (hereafter section 68081) provides that before an appellate court "renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely petition of any party."

We have applied section 68081 on several occasions, but we never have examined its meaning in depth. In Adoption of Alexander S. (1988) 44 Cal.3d 857, 245 Cal. Rptr. 1, 750...