People v. Orrante

• Decision Date: 19 March 1962
• Docket Number: Cr. 3963
• Citation: 20 Cal.Rptr. 480,201 Cal.App.2d 553
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Ernestine ORRANTE, Defendant and Respondent. PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent, Ernestine Orrante, Real Party in Interest. ; Civ. 20003.

Page 480

20 Cal.Rptr. 480

201 Cal.App.2d 553

PEOPLE of the State of California, Plaintiff and Appellant, v. Ernestine ORRANTE, Defendant and Respondent.

PEOPLE of the State of California, Petitioner, v. The SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF ALAMEDA, Respondent, Ernestine Orrante, Real Party in Interest.

Cr. 3963; Civ. 20003.

District Court of Appeal, First District, Division 1, California.

March 19, 1962.

Stanley Mosk, Atty. Gen., John S. McInerny, Arlo E. Smith, Albert W. Harris, Jr., Deputy Attys. Gen., San Francisco, for the People.

Martin N. Pulich, Public Defender of Alameda County, James C. Hooley, Asst. Public Defender, Oakland, for Ernestine Orrante.

SULLIVAN, Justice.

The principal question for our determination in this case is whether the defendant who was convicted below of murder in the second degree and who was at the time of the perpetration of said crime armed with a deadly weapon, is eligible for probation under the provisions of section 1203 of the Penal Code. We have concluded that she is not and that the trial court acted in excess of its jurisdiction in granting probation to her. We have also concluded that the pertinent orders of the court below are appealable by the People and we so review them without calling into play the extraordinary process of the writ of mandate.

The facts are simple. On October 31, 1960, the defendant Ernestine Orrante shot and killed one Alton Correira with a thirty-eight caliber pistol. On November 29, 1960, she was charged in an information with murder, a violation of section 287 of the Penal Code. On March 2, 1961, the defendant, represented by the public defender, upon her request and court approval, withdrew her previous plea of not guilty and pleaded guilty as charged in the information. Pursuant to the stipulation of respective counsel, the court fixed the degree of murder charged as that of second degree. (Pen.Code § 189, 1192.) At the same time, upon defendant's request, the cause was referred to the probation officer for investigation.

The report of the probation officer recommended that the defendant's request for probation be denied. On March 23, 1961, the court, having considered the probation report, declared 'an exception within the meaning of Section 1203 of the Penal Code' and suspended the imposition of sentence for five years, during which time the defendant was placed on probation subject to certain terms and conditions. At the same time the defendant was ordered released from custody forthwith.

On March 31, 1961, the trial court denied a motion by the People to have the court vacate and set aside its previous order granting probation.

The People appeal from both the order of March 23, 1961, granting probation and the order of March 31, 1961, denying the People's motion to vacate and set aside the court's first order. To insure review of the errors complained of, the People, simultaneously with the filing of appellant's opening brief in 1 Crim. No. 3963, filed herein a petition for writ of mandate 'or other appropriate relief,' (1 Civ. No. 20003) suggesting that we follow the practice in People v. Superior Court (Leslie) 118 Cal.App.2d 700, 258 P.2d 1087, and consider together the appeal and the proceeding for a writ of mandate. We issued an alternative writ of mandate.

Appealability of trial court's orders.

The appellant contends that the order granting probation is appealable by the People but makes no argument with respect to the court's subsequent order of March 31, 1961. While the defendant, represented before us by the Public Defender of Alameda County, offers no resistance on this procedural question and, indeed, seems also to favor our review by appeal, we set forth our reasons on the appealability of both orders.

We take up first the order granting probation. Under section 1203.1 of the Penal Code, 'The court or judge thereof, in the order granting probation, may suspend the imposing, or the execution of the sentence * * *.' (Emphasis added.) As we have pointed out, the trial court took the first alternative and suspended the imposition of sentence for five years. Where the trial court sentences the defendant and after sentence suspends the execution thereof, placing the defendant on probation, such order is appealable under the provisions of subdivision 5 of section 1238 of the Penal Code as being 'an order made after judgment, affecting the substantial rights of the people.' (People v. Superior Court (Leslie) (1953) 118 Cal.App.2d 700, 703, 258 P.2d 1087; In re Sargen (1933) 135 Cal.App. 402, 405, 27 P.2d 407.) In the Leslie case, supra, the order granting probation was made after judgment. In the case before us, since no sentence was imposed, there was no judgment against the defendant (Stephens v. Toomey (1959) 51 Cal.2d 864, 871, 338 P.2d 182) and the order granting probation cannot therefore be considered as an order after judgment and thus appealable under subdivision 5 of section 1238.

Appellant, therefore, does not invoke subdivision 5 but contends that this case falls within subdivision 6 of section 1238 which provides that an appeal may be taken by the People 'From an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.' In support of this position appellant relies on People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241. We find merit in this contention. Since we conclude, as we will hereafter explain, that the trial court had no jurisdiction to grant probation, the defendant being ineligible therefor, the court had 'no discretion but to sentence the defendant to an appropriate institution for such punishment or treatment as is provided by law.' (Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182, 185.) Instead, the court suspended the imposition of sentence and granted probation. Instead of being in prison, the defendant was a free woman, subject only to the restraints of the conditions of her probation. She had no judgment pending against her and suffered no suspension of her civil rights. (Stephens v. Toomey, supra, 51 Cal.2d at p. 871, 338 P.2d 182.) Certainly the effect of the court's order was to modify the verdict or finding ¹ by reducing the punishment imposed, unless we are prevented from so concluding for the reason that while there was a reduction in the punishment which should have been imposed, there was no reduction of a punishment already actually imposed.

In People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241, the defendant was convicted of a violation of section 11500 of the Health and Safety Code (possession of marijuana) and had a prior conviction of violation of said section. Upon sentencing, the court, at defendant's request and without objection by the People, ordered that the prior conviction, alleged in the information and admitted by the defendant, be stricken in the interest of justice. The court thereupon sentenced the defendant to the county jail instead of to the state prison as the statute prescribed in cases of a prior conviction. The defendant appealed from the judgment of conviction. The People did not appeal but requested a reversal of the judgment for the purpose of having the sentence increased to imprisonment in the state prison. The Supreme Court held that the People had assented to the ruling below not only by failing to object but by failing to appeal. The court held that 'the order striking the charge of prior conviction was in its nature one of the orders specified as appealable either by paragraph 1 or by paragraph 6 of section 1238 of the Penal Code, (47 Cal.2d at p. 53, 301 P.2d at p. 246; emphasis added) on the latter theory as an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed. On the basis of the People's contention that the court was bound to let the information stand as filed, accept the defendant's admission of prior conviction, make a finding, and sentence accordingly, 'it would follow that the purpose and ultimate effect of the court's order were the same as those of 'an order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed.'' (47 Cal.2d at pages 53-54, 301 P.2d at page 246.) Nevertheless, the court had not imposed any punishment before striking the prior conviction. Actually, the punishment reduced was yet to be imposed.

We view Burke as a convincing, if not binding analogue. We do not feel that subdivision 6 of section 1238 requires the procedural formalism of the trial court first imposing the punishment and then reducing it. We are of the opinion that where the trial court suspends the imposition of sentence and grants probation, when it has no jurisdiction to makes such orders, 'the purpose and ultimate effect of the court's order,' to adopt the language of Burke, supra, is to reduce the punishment and the order is appealable under subdivision 6 of section 1238.

We next consider the appealability of the subsequent denial of the People's motion to vacate and set aside the order granting probation. By thus reaffirming the court's earlier order, the second order of denial also had the purpose and effect of reducing the punishment. (Pen.Code § 1238, sub. 6.) As a general rule, an order denying a motion to vacate a prior judgment or order is not appealable where the motion merely seeks to change the former decision on the same facts and where the grounds of the motion existed before the entry of the original order and were available on an appeal from such order (e. g., civil: Agnew v. Cronin (1961) 197 A.C.A. 565, 573-574, 17 Cal.Rptr. 273; 3 Cal.Jur.2d Appeal and Error § 57, at 490-491; criminal: People v. Palmer (1942) 49 Cal.App.2d 579, 580, 122 P.2d 114; 3 Cal.Jur.2d Appeal and Error § 94, at 547.) Where, however, the prior judgment or order is void on the face of the record, an appeal may be taken either from the prior judgment or order or from the...