People v. Glaser, Cr. 4883

CourtCalifornia Court of Appeals
Citation238 Cal.App.2d 819,48 Cal.Rptr. 427
Decision Date20 December 1965
Docket NumberCr. 4883
PartiesThe PEOPLE of the State of California, Plaintiff and Respondent, v. Leonard B. GLASER, Defendant and Appellant.

Page 427

48 Cal.Rptr. 427
238 Cal.App.2d 819
The PEOPLE of the State of California, Plaintiff and Respondent,
Leonard B. GLASER, Defendant and Appellant.
Cr. 4883.
District Court of Appeal, First District, Division 1, California.
Dec. 20, 1965.
Hearing Denied Feb. 16, 1966.

Page 429

[238 Cal.App.2d 820] Charles R. Garry, Garry, Dreyfus & McTernan, San Francisco (under appointment of the District Court of Appeal), for appellant.

Thomas C. Lynch, Atty. Gen., Edward P. O'Brien, Michael R. Marron, Deputy Attys. Gen., San Francisco, for respondent.

SIMS, Justice.

Defendant has appealed 'from the judgment * * * entered * * * on the 16th day of October, 1964, and from the whole of said judgment.' On that day the court revoked probation granted to the defendant April 17, 1964 following his conviction, on March 27, 1964 by verdict of a jury, of possession of marijuana in violation of section 11530 of the Health and Safety Code. Imposition of sentence had been suspended in the order granting probation, and upon revocation of probation he was arraigned for judgment with counsel and sentenced to state prison for the term provided by law.

Scope of the Appeal.

Defendant, except insofar as he questions the constitutionality[238 Cal.App.2d 821] of the statute he allegedly violated, does not attack the proceedings attendant to the revocation of his probation and his subsequent sentencing. He seeks to raise errors which allegedly occurred at the trial resulting in his conviction. Any review of the matters giving rise to his conviction and the ensuing order granting him probation is limited by his failure to perfect a timely appeal therefrom. (Pen.Code § 1237, subd. (1); Cal.Rules of Court, rule 31(a); People v. Wilkins (1959) 169 Cal.App.2d 27, 32-34, 336 P.2d 540; People v. Walker (1963) 215 Cal.App.2d 609, 611, 30 Cal.Rptr. 440; and see People v. Hinkley (1963) 223 Cal.App.2d 471, 472-473, 36 Cal.Rptr. 5; and People v. Booth (1962) 210 Cal.App.2d 443, 447-448, 26 Cal.Rptr. 717.)

Since 1951 Penal Code section 1237, subsection 1, has provided that 'an order granting probation shall be deemed to be a final judgment' from which an appeal may be taken by the defendant. Prior thereto if imposition of sentence was suspended following a conviction the only immediate review of the proceedings was by review of an order denying a motion for new trial in cases where such motion was made and denied. (See People v. Jones (1950) 36 Cal.2d 373, 375, 224 P.2d 353; Witkin, Cal.Criminal Procedure (1963) §§ 647-648, pp. 640-642.) 1

Where sentence was imposed and execution is suspended, the rule is and has been that the 'judgment is appealable although execution thereof is suspended after judgment is pronounced.' (People v. Howerton (1953) 40 Cal.2d 217, 218, 253 P.2d 8, 9; People v. Foley (1953) 118 Cal.App.2d 291, 293, 257 P.2d 452; People v. Means (1953) 117 Cal.App.2d 29, 31, 254 P.2d 585.) Although an appeal may lie from a subsequent order, which revokes probation and places the sentence into effect, the matters

Page 430

arising prior to pronouncement of judgment cannot thereby be reviewed. (People v. Howerton, supra, 40 Cal.2d at p. 220, 253 P.2d 8; People v. Means, supra.)

Appellant quotes from People v. Robinson (1954) 43 Cal.2d 143 at page 145, 271 P.2d 872, 873, wherein the 1951 amendment is referred to as a 'limited extension of a defendant's [238 Cal.App.2d 822] right to appeal from a theretofor non-appealable order,' as the court rejected the contention that a subsequent order revoking probation, where imposition of sentence had been suspended, was 'any order made after judgment.' (See Pen.Code § 1237, subd. (3).) The court held that an appeal was proper from the ensuing judgment and that the proceedings leading to, and the order for revocation of probation itself could be reviewed on such appeal. It is nowhere therein suggested that such an appeal reopened review of the matters leading to the conviction and original grant of probation. Similar considerations apply to the statement in Stephens v. Toomey (1959) 51 Cal.2d 864, at page 871, 338 P.2d 182, at page 186, wherein, in discussing the civil rights of a person against whom no judgment of conviction or sentence of imprisonment has been pronounced, the opinion recites: 'If he should violate its conditions he is subject to a revocation of the order of probation with pronouncement of judgment and sentence to follow. Pen.Code, § 1203.2. This judgment is appealable under section 1237 of the Penal Code, and for finality must await the result of any appeal.'

In People v. Natividad (1963) 222 Cal.App.2d 438, 35 Cal.Rptr. 237, the court properly denied a motion to dismiss an appeal from a judgment which was pronounced following revocation of probation two years after defendant's conviction and admission to probation, because he was entitled to a review of the validity of the order revoking probation. The court indicated that it should also review 'any irregularities going to the jurisdiction or legality of the proceedings.' (P. 440, 35 Cal.Rptr. p.) It examined and overruled defendant's contentions 'that he did not know he was pleading guilty to a felony, but believed that the offense charged against him was a misdemeanor,' and 'that he was not properly represented by counsel.' Insofar as the irregularities referred to by the court are those which could be raised on a post-conviction collateral attack despite a failure to appeal, it would appear proper to consider them. Insofar as the irregularities are those for which the law offers and requires a timely review by appeal, there is no merit in delaying the review, or giving the defendant alternative remedies, i. e., either on conviction and granting of probation, or on sentencing if probation is revoked. Any advantage of diminishing the number of appeals which might arise because a defendant would accept the milder punishment of probation without contesting a questionable judgment, is offset by the difficulties of review [238 Cal.App.2d 823] and of retrial if error is found long after the offense was committed and the original conviction obtained. Such a rule would also create an arbitrary distinction between the time for appeal between those whose sentence was suspended, and those whose sentencing was suspended.

In People v. McCurdy (1958) 165 Cal.App.2d 592, 332 P.2d 350, the sole question presented on appeal, from a judgment following revocation of probation, was 'whether an information charging an assault with intent to commit murder under Penal Code, section 217 will support a conviction under Penal Code, section 245 on the theory that the crime defined in the latter section is a lesser offense necessarily included within the former as charged.' (Pp. 594-595, 332 P.2d p. 351 fns. omitted.) The People contended that review of this question was precluded by defendant's failure to appeal from the order granting probation which had been made earlier following his conviction. The court stated: 'Our disposition of appellant's assignment of error on its merits renders it unnecessary for us to consider this latter contention.' (P. 598, 332 P.2d p. 353.) The

Page 431

case is neither precedent for the proposition that the appeal from the subsequent judgment permits review of the pre-conviction proceedings, nor for the principle that a variance between the accusatory pleading and the verdict or finding of guilt is an irregularity which may be raised at any time. (See, however, In re Hess (1955) 45 Cal.2d 171, 174-175, 288 P.2d 5; and People v. Carter (1965) 233 Cal.App.2d 260, 262-264, 43 Cal.Rptr. 440.)

People v. McCree (1954) 128 Cal.App.2d 196, 275 P.2d 95, does give some solace to appellant. There defendant appealed from the judgment and from an order denying a new trial. The opinion recites: 'Respondent contends that this appeal was taken from the judgment of conviction and from the order denying a new trial, and as there was no judgment entered other than the order granting probation to the appellant, the appeal from the judgment should be dismissed. This contention must be sustained. Orders granting probation are now appealable. Penal Code, section 1237. But here it is apparent, since appellant makes no attack on that order, that she did not intend to appeal therefrom. Hence we cannot construe her notice as such an appeal, as was done in People v. Robinson, 43 Cal.2d 143, 271 P.2d 872. Since no judgment was entered there cannot be an appeal therefrom. People v. Guerrero, 22 Cal.2d 183, 184, 137 P.2d 21; [238 Cal.App.2d 824] People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571. However, the merits of this appeal may be decided on the appeal from the order denying a new trial.' (128 Cal.App.2d at p. 198, 275 P.2d at p. 97.)

From the foregoing the defendant urges that because there is no longer an appeal from an order denying a motion for a new trial, a defendant must be entitled to a review of his conviction on appeal from a subsequent judgment after revocation of probation. Any inference from McCree that an appeal from a 'judgment' will not be countenanced as an appeal from an order granting probation, is inconsistent with the pronouncements of the same judge less than four months later (People v. Camargo (1955) 130 Cal.App.2d 543, 544-545, 279 P.2d 194), and prevailing appellate practice. (People v. Vetri (1960) 178 Cal.App.2d 385, 387, 2 Cal.Rptr. 795; People v. Easley (1957) 148 Cal.App.2d 565, 566, 307 P.2d 10; People v. Goldstein (1955) 136 Cal.App.2d 778, 793, 289 P.2d 581; People v. Reed (1954) 128 Cal.App.2d 499, 502, 275 P.2d 633; and People v. Silberstein (1958) 159 Cal.App.2d Supp. 848, 849, 323 P.2d 591.) The foregoing authorities also all recognize that such an appeal, as is authorized by statute, from 'an order granting probation,' gives rise to a review of all the antecedent proceedings (see Pen.Code § 1259) because the order 'shall be deemed to be a final judgment,' and is not limited...

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