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District Court of Appeal, Second District, Division 2, California.

Ex parte MARQUEZ.*

Cr. 2658.

Decided: January 25, 1935

U. S. Webb, Atty. Gen., Paul D. McCormick, Deputy Atty. Gen., and Buron Fitts, Dist. Atty., and Tracy Chatfield Becker, Deputy Dist. Atty., both of Los Angeles, for the People. Gladys Towles Root, of Los Angeles, for respondent.

The people of the state of California appeal from an order of the superior court granting petitioner's (respondent's) discharge from custody in a habeas corpus proceeding. The appeal is under section 1506, Penal Code. Frank Marquez was charged with rape in an information containing four counts. He entered a plea of guilty to count 1 and applied for probation. Thereupon the following order was entered: “It is ordered that proceedings as to Count 1 of the information be suspended and defendant granted probation for a period of twenty years under the following conditions: the first four years of said probationary period defendant shall serve at the county road camp,” etc. After serving one year in the county road camp, he sued out a writ of habeas corpus upon the ground “that any period in excess of one year in the county jail is in excess of the period of confinement in the county jail permitted by section 19a of the Penal Code [as added by St. 1933, p. 2217].”

It is the contention of the petitioner that section 1506 of the Penal Code does not give the people the right of appeal, for the reason that there is no existing judgment against the defendant. Said section was added to the Code by the Legislature of 1927 (St. 1927, p. 1061), and prior thereto there existed no right of appeal under the circumstances of this case. In the case of In re Alpine, 203 Cal. 731, 265 P. 947, 953, 58 A.L.R. 1500, the Supreme Court, in passing upon an appeal taken under this section, said: “It is clear from the language of said section that an appeal is only allowable after conviction and in those cases where there is an existing judgment against the defendant. In all other cases the law remains unchanged.” Reaffirmed in Re Page, 214 Cal. 350, 5 P.(2d) 605. The respondent herein having been placed on probation in the first instance, there was no judgment standing against him. Probation is not a judgment and sentence. People v. De Voe, 123 Cal. App. 233, 11 P.(2d) 26; People v. Patello, 125 Cal. App. 480, 13 P.(2d) 1068; People v. Marconi, 118 Cal. App. 683, 5 P.(2d) 974; People v. Noone, 132 Cal. App. 89, 22 P.(2d) 284. It follows therefore that the people have no right of appeal in this case.

The appeal is dismissed.

On Rehearing.

Before this court's decision was rendered and the opinion released, we considered the matters presented in the appellant's petition for a rehearing and entertained doubts in relation thereto. However, since the Supreme Court has spoken as clearly as it did in Re Alpine, 203 Cal. 731, 265 P. 947, 58 A. L. R. 1500, we thought we were in duty bound to follow it, and we still think so.

Petition for rehearing denied.

CRAIL, Justice.

We concur: STEPHENS, P. J.; SCOTT, Justice pro tem.