People v. Causey

Decision Date10 November 1964
Docket NumberCr. 9923
Citation230 Cal.App.2d 576,41 Cal.Rptr. 116
PartiesThe PEOPLE, Plaintiff and Respondent, v. Roland CAUSEY, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Nicolas Ferrara, Los Angeles, for defendant and appellant.

Thomas C. Lynch and Stanley Mosk, Attys. Gen., William E. James, Asst. Atty. Gen., and George J. Roth, Deputy Atty. Gen., for plaintiff and respondent.

KINGSLEY, Justice.

Appellant was convicted of grand theft. He appealed, and the conviction was affirmed. (People v. Causey (1963) 220 Cal.App.2d 641, 34 Cal.Rptr. 43.) When the remittitur on appeal was filed in the trial court, appellant, the execution of his sentence having been stayed pending the appeal, filed a motion '(1) for an order vacating the judgment and sentence pronounced or imposed upon the defendant, and (2) for an order granting defendant probation without confinement, upon such terms and conditions as the court shall determine, and (3) for an order vacating judgment or order of commitment.' After argument, that application was denied by the trial court on December 3, 1963; the court granted a stay of execution which, as subsequently extended, ran until January 31, 1964. In presenting the motion, appellant relied on the matters then in the court file, including the original probation report, by then some two years and three months old. No request for a current report was then made, although the appellant did seek to introduce a tape recording of a witness (then deceased) contradictory of testimony adverse to appellant on his trial. The offer was rejected by the court. 1

On December 11, 1963, appellant filed a notice of a new motion, seeking similar relief, in which, for the first time, he requested that the court order a new and current probation report. Although the record shows no action on this application, appellant's counsel states in his brief (and the statement is not denied) that the court allowed the application to be filed but orally and summarily denied it in toto.

On December 12, 1963, appellant filed a notice of appeal from the order of December 3, 1963.

On January 27, 1964, appellant presented to the trial court a third, written, motion for an order staying execution. The motion was denied. On the same day, appellant filed a written application which renewed his request filed on December 11, 1963. No action seems ever to have been taken on this application. However, on January 28, 1964, appellant noticed an appeal from the '(1) order denying defendant's application to suspend execution of judgment and sentence, (2) order denying defendant's application for probation, (3) order refusing to refer the matter of defendant's application for probation to the probation officer for a current investigation and report before denying defendant's application for probation, (4) order denying defendant's application for stay of execution of judgment and sentence and commitment, in the above entitled action, each made and entered on or about January 27, 1964 by the above entitled court, and from the whole of each of said orders.' The clerk refused to file this notice, on the ground that the orders involved were not appealable; on February 25, 1964, we ordered the notice filed, consolidated the two appeals, and reserved the issue of appealability for consideration at this time. By orders made in connection with the pending appeals, execution of appellant's sentence remains stayed until their final determination. 2

The attempted appeal from the 'orders' of January 27, 1964, must be dismissed. In the first place, the filing on December 12th of the notice of appeal from the order of December 3, 1963, divested the trial court of all jurisdiction over the case except as to applications for bail and for a stay of execution; and an order denying a stay of execution is not appealable, the remedy being by a de novo application to the appellate court. In the second place, as pointed out above, apart from an order denying a further stay of execution, the record shows no other order made on January 27th; there being no orders, there was nothing from which to appeal.

However, we regard the order made on December 3, 1963, as appealable. Respondent argues (1) that an order denying probation is not appealable and (2) that, if the motion be regarded as one to vacate the judgment of conviction, the sole remedy was by application to this court pursuant to section 1265 of the Penal Code. While the written notice of motion is ambiguous, it is clear from the discussion between court and counsel that appellant did not seek to set aside his conviction; it follows that the application was not one in the nature of coram nobis and that we need and consider the rules governing such applications. What appellant sought, clearly, was an order suspending his prison sentence and admitting him to probation. While it is true that an order denying probation is not appealable on its merits, an appeal does lie, as from an order 'made after judgment, affecting the substantial rights of the party,' (Pen.Code, § 1237) where the denial is for lack of jurisdiction (People v. Banks (1959) 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102), or where the trial court has committed procedural error in passing on...

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26 cases
  • People v. Beasley
    • United States
    • California Court of Appeals Court of Appeals
    • March 19, 1970
    ...against the defendant at the time of granting her request to file an application therefor.' (Id. See also People v. Causey (1964) 230 Cal.App.2d 576, 579--580, 41 Cal.Rptr. 116; People v. Williams (1963) 223 Cal.App.2d 676, 680, 35 Cal.Rptr. 805; and People v. Surplice, supra, 203 Cal.App.2......
  • People v. Heffington
    • United States
    • California Court of Appeals Court of Appeals
    • May 1, 1973
    ...instruct the trial court to resentence defendant after appropriate proceedings under the probation statutes. (See People v. Causey, 230 Cal.App.2d 576, 579, 41 Cal.Rptr. 116.) Should such a statement not be filed, the remittitur will order reversal of the RICHARDSON, P.J., and JANES, J., co......
  • People v. Mariano
    • United States
    • California Court of Appeals Court of Appeals
    • July 11, 1983
    ...814, 825-826, 66 Cal.Rptr. 551; People v. Keller (1966) 245 Cal.App.2d 711, 715-718, 54 Cal.Rptr. 154; People v. Causey (1964) 230 Cal.App.2d 576, 579-580, 41 Cal.Rptr. 116; see also In re Gomez (1973) 31 Cal.App.3d 728, 733, 107 Cal.Rptr. 609; People v. McCullin (1971) 19 Cal.App.3d 795, 8......
  • U.S. v. Hardesty, 90-30260
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 10, 1992
    ...candidate for probation is a matter wholly within the competence of the trial court to decide." Id.6 Cf. People v. Causey, 230 Cal.App.2d 576, 579, 41 Cal.Rptr. 116, 119 (1964) (in state system, statute mandates that presentence reports be updated upon application for ...
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