People v. Howerton, Cr. 5399

• Decision Date: 10 February 1953
• Docket Number: Cr. 5399
• Citation: 253 P.2d 8,40 Cal.2d 217
• Court: California Supreme Court
• Parties: PEOPLE v. HOWERTON.

Page 8

253 P.2d 8

40 Cal.2d 217

PEOPLE v. HOWERTON.

Cr. 5399.

Supreme Court of California, in Bank.

Feb. 10, 1953.

William W. Larsen, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen. and Elizabeth Miller, Deputy Atty. Gen., for respondent.

TRAYNOR, Justice.

Defendant Azel Howerton was charged by information with the commission of a lewd and lascivious act on a child under the age of fourteen. Penal Code, § 288. He pleaded not guilty and waived trial by jury. By stipulation, the People submitted its case on the transcript of testimony taken at the preliminary examination. Defendant testified in his own behalf. On January 10, 1952, the court adjudged defendant guilty of the crime charged in the information. On February 6, 1952, with defendant and his attorney present, the court denied defendant's application for probation and pronounced judgment and sentenced him to prison for the term prescribed by law. ¹ In the same proceeding, the court found defendant to be a sexual psychopath, and suspended execution of sentence pending outcome of sexual psychopath proceedings. Defendant was committed to Norwalk State Hospital for observation. Defendant did not appeal from the judgment of February 6th.

On April 9, 1952, defendant was returned to the superior court for further proceedings. The hospital superintendent reported that in his opinion defendant was a sexual psychopath and a menace to the health and safety of others, and would not benefit from treatment. The court ordered that the sentence imposed on February 6th be placed in effect and that defendant be delivered into the custody of the Director of Corrections. Defendant appeals from the 'judgment' of April 9th, contending that the evidence adduced at the trial was insufficient to sustain his conviction. The People have filed a motion to dismiss the appeal, on the ground that the order of April 9th is a nonappealable order. We have concluded that this contention must be sustained and that the appeal must be dismissed.

In criminal cases an appeal must be taken within ten days of rendition of the judgment or order appealed from. Rules on Appeal, rule 31. A timely appeal was not taken from the judgment of February 6th. The present appeal may be maintained only if the order of April 9th is an appealable order. Section 1237 of the Penal Code provides:

'An appeal may be taken by the defendant:

'1. From a final judgment of conviction; * * *

'2. From an order denying a motion for a new trial;

'3. From any order made after judgment, affecting the substantial rights of the party.'

Subsection 2 is inapplicable in this case since defendant did not make a motion for a new trial.

Defendant first contends that his appeal may be maintained under subsection 1, on the ground that a final disposition of the case was not made until the trial court committed him to prison. It is settled that a judgment is appealable although execution thereof is suspended after judgment is pronounced. People v. Neal, 108 Cal.App.2d 491, 493, 239 P.2d 38; People v. Casillas, 60 Cal.App.2d 785, 787, 141 P.2d 768; People v. Dawes, 37 Cal.App.2d 44, 46, 98 P.2d 787; see, also, In re Davis, 37 Cal.2d 872, 875, 236 P.2d 579. Defendant contends, however, that an appeal could not have been taken from the judgment of February 6th, on the ground that allowance of an appeal would have deprived the superior court of jurisdiction over the sexual psychopath proceedings pending action by the appellate court. The proceedings under section 5512 of the Welfare and Institutions Code are of a civil nature. People v. McCracken, 39 Cal.2d 336, 345, 346, 246 P.2d 913; In re Keddy, 105 Cal.App.2d 215, 217, 233 P.2d 159; see, Sane Laws for Sexual Psychopaths, 1 Stanf.L.Rev. 486, 492. Sexual psychopath proceedings need not be heard before the same judge that heard the criminal charge. Welf. & Inst. Code § 5501. The guilt of defendant is finally determined when the judgment of conviction is pronounced in the criminal proceeding, and nothing done in the sexual psychopath proceeding could modify or nullify that determination. Thus, in the present case the sexual psychopath proceedings under section 5512 necessarily held in abeyance execution of the judgment during the perior that defendant was under observation at the state hospital, but the validity of the judgment remained unaffected. People v. Hector, 104 Cal.App.2d 392, 394-395, 231 P.2d 916; cf. People v. Mason, 109 Cal.App.2d 87, 90, 240 P.2d 64. Pendency of an appeal from the judgment would not have divested the superior court of jurisdiction over the sexual psychopath proceedings. In re Keddy, supra; In re Morehead, 107 Cal.App.2d 346, 350, 237 P.2d 335. The order of commitment on April 9th had on more legal effect than would an order of commitment in an ordinary case where judgment had been pronounced and execution of sentence suspended. Cf. In re Ralph, 27 Cal.2d 866, 869, 168 P.2d 1.

Defendant contends finally that the order of April 9th was appealable under subsection 3 of section 1237. Defendant does not contend,...