People v. Neal

• Decision Date: 28 December 1951
• Docket Number: Cr. 4684
• Citation: 239 P.2d 38,108 Cal.App.2d 491
• Parties: PEOPLE v. NEAL.
• Court: California Court of Appeals Court of Appeals

Page 38

239 P.2d 38

108 Cal.App.2d 491

PEOPLE v. NEAL.

Cr. 4684.

District Court of Appeal, Second District, Division 3, California.

Dec. 28, 1951.

Hearing Denied Jan. 24, 1952.

Gladys Towles Root, Los Angeles, for appellant.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for respondent.

PARKER WOOD, Justice.

Defendant was charged in two counts with violation of section 288 of the Penal Code. It was alleged in the information that he had been convicted previously of violating said section. Trial by jury was waived. On June 10, 1949, he was convicted on both counts, and his request for permission to file an application for probation was granted. The date set for pronouncing judgment, for a hearing on the application for probation, and for 'the determination of the prior conviction,' was July 7, 1949.

On said July 7th, the defendant appeared and filed his affidavit of sexual psychopathy; the court found that the allegation of a prior conviction was untrue, then pronounced judgment that the defendant be imprisoned in the state prison for the term prescribed by law as to each count, and suspended execution of the sentences. Trial by jury was waived as to the issue of sexual psychopathy. On said July 7th the hearing as to sexual psychopathy was had, and the court found the defendant to be a sexual psychopath. Proceedings were suspended and defendant was committed to the Director of Institutions for confinement in Norwalk State Hospital. No determination of defendant's application for probation was made, but the judge who was then presiding (Judge Barnes), signed a statement on the probation report that he had read and considered the report. Defendant was placed in Norwalk State Hospital on July 16, 1949.

On March 21, 1951, defendant was returned to the superior court for further proceedings, under subdivision (b) of section 5517 of the Welfare and Institutions Code. A certificate, made by the hospital superintendent and approved by the director of the Department of Mental Hygiene, recited that the defendant had been treated to such an extent that, in their opinions he 'will not benefit by further care and treatment in the hospital, and is not a menace to the health and safety of others.' In the letter, in which said certificate was sent to the court, the said director stated that he approved the recommendation of the hospital staff 'that probation appears to be appropriate for this man.' On that date defendant appeared without counsel, and the cause was continued to March 23, 1951. On said date defendant appeared with counsel (not his counsel on appeal), and the further proceedings were had before Judge Cunningham (who was not the judge who presided at the trial on the criminal charges and at the hearing on the issue of sexual psychopathy). Defendant's counsel presented arguments to the effect that defendant should be released from custody. His counsel also stated that the record indicated that defendant had been rehabilitated, and he requested that the defendant be granted probation instead of being sent to the penitentiary. The judge stated, in effect, that he did not like to send the defendant to the penitentiary (he was 73 years of age) but, under the circumstances, it was his duty to do so. The minutes of the court recite that the court 'pronounces judgment and sentence,' and that the defendant is sentenced to the state prison for the term prescribed by law on each count, and is remanded to the custody of the sheriff to be delivered into the custody of the director of corrections. Thereafter on said March 23, 1951, a document entitled 'Judgment' was signed by the judge which recited that the defendant had been found guilty, as charged in each count; and that it was ordered that defendant be imprisoned in the state prison for the term prescribed by law as to each count; and that he be remanded to the custody of the sheriff to be delivered to the custody of the director of corrections at San Quentin. No order was made granting or denying probation, and no order at all was made with respect to defendant's application for probation.

The notice of appeal states that defendant appeals 'from the judgment rendered on March 23, 1951, from the denial of motion for new trial made on March 23, 1951, and from all proceedings had herein up to and including March 23, 1951.'

It is to be noted that judgment was rendered on July 7, 1949, as to each of the two counts. The defendant did not appeal from those judgments and they became final in July, 1949. Even though the execution of the sentences was suspended, the judgments were appealable. See In re Phillips, 17 Cal.2d 55, 58, 109 P.2d 344, 132 A.L.R. 644.

The People assert that the purported appeal from the purported judgment of March 23, 1951, should be dismissed upon the ground that the purported judgment is merely a commitment and is not appealable.

It seems that appellant also regards the purported judgment of March 23, 1951, as an order of commitment and does not consider it to be a judgment of conviction. Appellant contends, however, that said order (committing him to the penitentiary, after his return from the hospital) is appealable for the reason that it 'was an order made after judgment' affecting the substantial rights of appellant.

In support of that contention appellant argues that his application for probation, made on June 10, 1949, was not denied; that therefore it was still pending at the time sentences were pronounced on March 23, 1951; and that appellant was entitled to a full hearing on, and a determination of, such application. Section 1203 of the Penal Code provides, in part, that '[i]f probation is not denied, and in every felony case in which the defendant is eligible for probation, before any judgment is pronounced, and whether or not an application for probation has been made, the court must immediately refer the matter to...