People v. Romero

• Citation: 235 Cal.App.3d 1423,1 Cal.Rptr.2d 468
• Decision Date: 13 November 1991
• Docket Number: No. A052056,A052056
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gerardo Angeles ROMERO, Defendant and Appellant.

Page 468

1 Cal.Rptr.2d 468

235 Cal.App.3d 1423

The PEOPLE, Plaintiff and Respondent, v. Gerardo Angeles ROMERO, Defendant and Appellant.

No. A052056.

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

Nov. 13, 1991.

Certified for Partial Publication. ^*

Norton Tooby, Law Offices of Norton Tooby, Oakland, for defendant and appellant Gerardo Angeles Romero.

Daniel E. Lungren, Atty. Gen., George H. Williamson, Chief Asst. Atty. Gen., John H. Sugiyama, Sr. Asst. Atty. Gen., Ronald S. Matthias, Supervising Deputy Atty. Gen., Joanne S. Abelson, Deputy Atty. Gen., San Francisco, for plaintiff and respondent The people.

STEIN, Justice.

Gerardo Angeles Romero appeals from an order denying his motion to modify or terminate probation and to obtain release from penalties.

FACTUAL AND PROCEDURAL BACKGROUND

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On August 4, 1988, appellant pled guilty to one count of sexual battery (Pen.Code, § 243.4, subd. (a)). ¹ On February 24, 1989, imposition of sentence was suspended and appellant was placed on probation for three years, with one year in county jail. He received credit for time served in jail and was released.

On October 9, 1990, appellant filed a motion for early termination of probation and to obtain release from penalties pursuant to sections 1203.3 and 1203.4, stating that he had complied with all terms of probation and needed the conviction expunged to make him eligible for permanent resident status. ² On October 25, 1990, the motion was denied. ³

A timely notice of appeal was filed on December 17, 1990.

DISCUSSION

Appealability of the Order

Citing People v. Soukup (1983) 141 Cal.App.3d 858, 190 Cal.Rptr. 635 (disapproved on other grounds in In re Bakke (1986) 42 Cal.3d 84, 88, 227 Cal.Rptr. 663, 720 P.2d 11), respondent argues that the order denying a section 1203.4 motion is not appealable. Section 1237 provides that a defendant may appeal in the following circumstances: "(a) From a final judgment of conviction.... A sentence, [or] an order granting probation, ... shall be deemed to be a final judgment within the meaning of this section.... [p] (b) From any order made after judgment, affecting the substantial rights of the party."

The court in Soukup, supra, after deciding the merits of the issue raised, stated that the order should have been reviewed by means of a petition for writ of habeas corpus. The court stated that since the defendant had no right to the relief requested, no substantial rights were involved. We decline to follow this rule, since it requires a resolution of the merits of the appeal before it can be determined whether the order was appealable. In People v. Chandler (1988) 203 Cal.App.3d 782, 250 Cal.Rptr. 730, the court determined that an order denying section 1203.4 relief was appealable as an order made after judgment. The judgment in that case was the order granting probation, where the period of probation had expired. The rule regarding appealability of such orders should not be otherwise merely because the probationary term has not yet expired.

In In re Bine (1957) 47 Cal.2d 814, 817, 306 P.2d 445, the Supreme Court stated that an order modifying probation is appealable as an order after judgment affecting substantial rights. The court distinguished People v. Robinson (1954) 43 Cal.2d 143, 271 P.2d 872, which held that an order revoking probation was not appealable because the purpose of a revocation order was to allow a final judgment to be entered. We find that the order denying appellant's motion is appealable as an order after judgment pursuant to the express language of section 1237.

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The order appealed from is affirmed.

NEWSOM, Acting P.J., and DOSSEE, J., concur.

* Pursuant to California Rules of Court, rule 976.1, this opinion is certified for partial publication. The portions of this opinion to be deleted from publication are identified as those portions between brackets, e.g., [/].

1 All statutory references are to the Penal Code.

2 Section 1203.3 provides in relevant part: "(a) The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence."

Section 1203.4 provides in relevant part: "(a) In any case in which a defendant has fulfilled the conditions of probation for the entire period of probation, or has been discharged prior to the termination of the period of probation, or in any ...