People v. Wilkins

• Decision Date: 23 March 1959
• Docket Number: Cr. 6478,6477
• Citation: 336 P.2d 540,169 Cal.App.2d 27
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. James William WILKINS and Joseph Grant, Defendants. Joseph Grant, Appellant. PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph GRANT, Jr., Defendant and Appellant.

Page 540

336 P.2d 540

169 Cal.App.2d 27

PEOPLE of the State of California, Plaintiff and Respondent, v. James William WILKINS and Joseph Grant, Defendants.

Joseph Grant, Appellant.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joseph GRANT, Jr., Defendant and Appellant.

Cr. 6478, 6477.

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

March 23, 1959.

Joseph Grant, Jr., in pro. per.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., for respondent.

FOURT, Justice.

This opinion involves two separate appeals.

In an information filed in Los Angeles county on May 13, 1955, the appellant and James William Wilkins were charged in count I of that information with conspiracy to commit burglary, and in count II thereof with the crime of attempted burglary. It was also alleged that Grant, the appellant, had previously been convicted of a felony, namely burglary in San Diego in April, 1948, and that he had served a term therefor in the State prison. The appellant, in that case, pleaded not guilty to each count and denied the prior conviction. However, before trial the appellant admitted the prior conviction. A trial before a jury was had and the appellant was found guilty on both counts. The appellant then moved for a new trial, and the motion therefor was granted as to count I, and denied as to count II. An appeal was taken from the judgment of conviction on count II, and this court reversed the judgment in People v. Wilkins, 141 Cal.App.2d 557, 297 P.2d 42. Count I was placed off calendar and was never retried.

On August 2, 1956, the case involving count II of the information was called for retrial and it was then stipulated that the matter would be submitted on the reporter's transcript on appeal, subject to such other evidence as might be introduced, and the exhibits admitted at the first trial were received in evidence. The prosecution presented other and additional evidence, including, apparently, a confession by Grant made while he was in the jail awaiting the results of his first appeal. Appellant was found guilty as charged in count II. He made a motion for a new trial, which was denied. On August 2, 1956, proceedings were suspended and probation was granted for three years. In effect, the court, among other things, ordered that the appellant should comply, while under probation, with all of the laws of the State of California. No appeal was taken from the order granting probation.

In the second case in point of time, that is, our case No. 6477, the district attorney of Los Angeles county charged appellant in an information filed on May 8, 1958, with petty theft with a prior conviction of a felony (charging the San Diego burglary of 1948 as the prior felony in the substantive offense). The information also alleged that the appellant previously had been convicted of a felony, namely, the attempted burglary as set forth in count II of the case decided on August 2, 1956. The defendant pleaded guilty as charged and admitted the prior conviction.

Probation was denied and the appellant was sentenced to the state prison for the term prescribed by law. The court also found that the defendant was in violation of the probation granted after and with reference to the previous conviction of attempted burglary, and such probation was revoked and the sentences were ordered to run concurrently. The appellant, at the time of sentence, was lodged in the county jail upon still another and different charge (failure to provide for his minor children), and the sentence for that offense was, under the law, merged with the state prison sentences, all to the effect that appellant would be serving in one confinement three different terms for three different offenses.

The appellant filed a document in the first case in point of time (our number 6478) titled 'Notice of Appeal * * * Attempted Burgalary.' In that document he sets forth a brief resume of the course of events in the case, however nothing is mentioned as to what the appellant appeals from. Substantially the same situation exists in the second case in point of time, our number 6477 (petty theft with prior felony conviction).

We have made an earnest effort to determine from a reading of the appellant's briefs what it is that he complains of with reference to the trial and the disposition of the two cases above mentioned. At best, the briefs are a conglomeration of disconnected statements, with an almost total disregard of the rules as to what shall be contained in an appellant's brief. We have, however, carefully gone over all of the records and the transcript which are before us and have attempted to determine whether there was any error in any respect, insofar as the appellant is concerned.

This court ordinarily, in the absence of a showing in the record to the contrary, must indulge all reasonable presumptions in favor of the judgment and the rulings of the trial court, and we will presume, unless some showing is made otherwise, that the proceedings were regular and free from error. People v. Fratianno, 132 Cal.App.2d 610, 634, 282 P.2d 1002; People v. Garris, 120 Cal.App.2d 617, 618, 261 P.2d 765; People v. Resum, 120 Cal.App.2d 618, 619, 261 P.2d 765; People v. Lane, 144 Cal.App.2d 87, 90, 300 P.2d 321. Our reading of the record does not disclose any irregularity or error as to either case, and the appellant has pointed to none. We accordingly presume that the procedures in the trial court were proper and regular.

The record is entirely silent as to the evidence introduced at the trial on the attempted burglary case, excepting that the minutes do disclose that the cause was submitted on the reporter's transcript on appeal, and that other evidence could be received. The appellant makes mention in his brief that a witness did testify to what apparently amounted to a confession by the appellant while he was in jail awaiting the result of his first appeal. However, as heretofore indicated, no reporter's transcript of the proceedings is before us.

If the appellant is to prevail on this appeal he must produce a record which discloses that an error relied upon has in fact occurred. People v. Ramirez, 139 Cal.App. 380, 382, 33 P.2d 848; People v. Denne, 141 Cal.App.2d 499, 514, 297 P.2d 451; People v. Goldberg, 152 Cal.App.2d 562, 575, 314 P.2d 151.

Furthermore, under section 1237, Penal Code, it is provided in part as follows:

'An appeal may be taken by the defendant:

'1. From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section; * * *.' (The latter clause having been added to the section in 1951.) In various cases the matter of an appeal from an order granting probation has been discussed and considered. In People v. Easley, 148 Cal.App.2d 565, 566, 307 P.2d 10, 11, the court said, with reference to a notice of appeal which set forth that it was "from the judgment therein entered' and from the order denying a new trial': '* * * Since that amendment it is immaterial whether a defendant appeals in terms from the order of probation or from the judgment. For purposes of appeal they are interchangeable terms. It was so held in People v. Goldstein, 136 Cal.App.2d 778, 793, 289 P.2d 581 * * *, and People v. Reed, 128 Cal.App.2d 499, 500, 502, 275 P.2d 633 * * *.'

In People v. Frayer, 140 Cal.App.2d 597, at page 598, 295 P.2d 456, it is said, 'He appeals from the final judgment, which is the order granting probation (Penal Code, § 1237, Subd. 1).'

In People v. Ross, 139 Cal.App.2d 706, it is set forth in a footnote (at page 707, 294 P.2d 174, at page 175): 'Defendant was granted probation but such an order is deemed a final judgment for purposes of appeal.'

In People v. Goldstein, 136 Cal.App.2d 778, [169 Cal.App.2d 32] at page 793, 289 P.2d 581, at page 589, it is said: '* * * An appeal may now be taken from a probation order, Pen.Code, § 1237, and it is established that where probation has been granted and no judgment entered an appeal which purports to be taken from the judgment may be treated as an appeal from the probation order. People v. McShane, 126 Cal.App.2d Supp. 845, 272 P.2d 571; People v. Camargo, 130...