People v. Ventura

• Decision Date: 21 July 1978
• Docket Number: Cr. A
• Court: California Superior Court
• Parties: 84 Cal.App.3d Supp. 8 The PEOPLE of the State of California, Plaintiff and Appellant, v. Louis VENTURA, Defendant and Respondent. (And 9 other cases.) * 16194. Appellate Department, Superior Court, Los Angeles County, California

Page 581

148 Cal.Rptr. 581

84 Cal.App.3d Supp. 8

The PEOPLE of the State of California, Plaintiff and Appellant, v. Louis VENTURA, Defendant and Respondent. (And 9 other cases.) ^*

Cr. A. 16194.

Appellate Department, Superior Court, Los Angeles County, California.

July 21, 1978.

Burt Pines, City Atty., Laurie Harris, and Mark L. Brown, Deputy City Attys., for plaintiff and appellant.

Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, James H. Barnes, Deputy Public Defenders, and Donald G. Ferguson, Los Angeles, for defendants and respondents.

COLE, Presiding Judge.

In these 10 cases defendants were convicted of violating Health and Safety Code section 11550 which provides, inter alia, that any person convicted of that offense "shall be sentenced to serve a term of not less than 90 days nor more than one year in the county jail." The section also provides that a court may place a person convicted thereunder on probation but shall require as a condition thereof that the person be confined for at least 90 days. Finally, the section concludes with a provision that "In no event does the court have the power to absolve a person who violates this section from the obligation of spending at least 90 days in confinement in the county jail." The trial court sentenced defendants to serve less than 90 days in the county jail.

The People have purported to appeal from "the order of the court absolving the defendant from the obligation of spending at least 90 days in confinement in the county jail." We dismiss the appeals as having been taken from nonappealable orders.

As the People recognize, the right to appeal is statutory and a judgment or order is not appealable unless it is expressly made so by statute. (People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633; see People v. Succop (1966) 65 Cal.2d 483, 486, 55 Cal.Rptr. 397, 421 P.2d 405.)

It makes no difference that the appeal is taken from a mistaken ruling: " . . . (I)f the order is not appealable under accepted rules concerning appealability, we should not by fiat announce that it is appealable merely because it is egregiously erroneous." (People v. Valenti, supra, 49 Cal.2d at p. 204, 316 P.2d at p. 635.) ¹ "The Legislature has determined that except under certain limited circumstances the People shall have no right of appeal in criminal cases. . . . (P) The restriction on the People's right to appeal is not merely a procedural limitation allocating appellate review between direct appeals and extraordinary writs but Is a substantive limitation on review of trial court determinations in criminal trials." (People v. Superior Court (Howard) (1968) 69 Cal.2d 491, 497-498, 72 Cal.Rptr. 330, 335, 446 P.2d 138, 143.) (Emphasis added.)

The right to appeal from criminal cases decided in municipal and justice courts is found in Penal Code section 1466. That section states, so far as is here applicable:

"An appeal may be taken from a judgment or order of an inferior court, in a criminal case, to the superior court of the county in which such inferior court is located, in the following cases. 1. By the people: (a) From an order or judgment dismissing or otherwise terminating the action before the defendant has been placed in jeopardy or where the defendant has waived jeopardy; (b) From a judgment for the defendant upon the sustaining of a demurrer; (c) From an order granting a new trial; (d) From an order arresting judgment; (e) From any order made after judgment

affecting the substantial rights of the people . . . "

The People here seek to support the appeal by reference to subdivision 1, subdivision (e). They argue that the appeal is from an order made after judgment affecting their substantial rights. Manifestly, the last part of the subdivision is satisfied; the orders appealed from do affect the People's substantial rights; if the orders are erroneous there is no reason they should stand.

The appeals founder, however, because there are no orders "made After judgment" involved here. In these 10 cases the trial courts simply imposed sentences of less than 90 days' duration on the respective defendants. In a criminal case judgment is synonymous with the imposition of sentence. (People v. Warner (1978) 20 Cal.3d 678, 682, 143 Cal.Rptr. 885, 574 P.2d 1237, fn. 1; see Stephens v. Toomey (1959) 51 Cal.2d 864, 870, 338 P.2d 182.) Thus, as the People concede "such a sentence is the equivalent of the judgment and . . . Penal Code section 1466 does not afford the right of appeal to the People from a judgment of conviction."

Seeking to escape from their predicament, the People point out that when an order has been made suspending execution of a judgment, or part of a judgment for example an order placing a defendant on probation it is an order made after judgment from which the People may appeal. (People v. Warner, supra, 20 Cal.3d at p. 682, fn. 1, 143 Cal.Rptr. 885, 574 P.2d 1237; People v. Mendevil (1978) 81 Cal.App.3d 84, 88, 146 Cal.Rptr. 65; People v. Holly (1976) 62 Cal.App.3d 797, 801-802, 133 Cal.Rptr. 331; People v. Villegas (1971) 14 Cal.App.3d 700, 703, 92 Cal.Rptr. 663; People v. Orrante (1962) 201 Cal.App.2d 553, 556, 20 Cal.Rptr. 480; see People v. Beasley (1970) 5 Cal.App.3d 617, 630, 85 Cal.Rptr. 501.) Building on this premise the People then suggest to us that the orders from which they are appealing are the "orders of commitment placing the defendant in the custody of the jailer specifying the service of a term of incarceration less than the mandatory minimum sentence." While ingenious, the argument has no merit.

"To hold that any order which might have an effect on eventual punishment is appealable under (Pen. Code, § 1466, subd. 1(e)) would distort . . . the language . . . of the statute. . . . " People v. Drake (1977) 19 Cal.3d 749, 756, 139 Cal.Rptr. 720, 723, 566 P.2d 622, 625.) In Drake the People tried to save an appeal by arguing that an order...