THURMOND v. SUPERIOR COURT COUNTY OF SOLANO

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District Court of Appeal, Third District, California.

Charles J. THURMOND, Petitioner, v. SUPERIOR COURT and County Clerk, COUNTY OF SOLANO, State of California, Respondents.*

Civ. 9133.

Decided: January 04, 1957

C. K. Curtright, Sacramento, for petitioner. Edmund G. Brown, Atty. Gen., Doris H. Maier, Deputy Atty. Gen., Philip B. Lynch, Dist. Atty., and E. Glynn Stanley, Chief Deputy, Fairfield, for respondents.

By mandate petitioner seeks to compel the preparation of the clerk's and reporter's transcripts on his appeal from the order of the trial court denying his motion for a new trial.

On January 15, 1952, defendant was found guilty of violating Penal Code, section 288a. Prior to the entry of judgment, and pursuant to his request, the criminal proceedings were suspended and sexual phychopathy proceedings instituted. At the conclusion of the hearing on the psychopathy issue, petitioner was adjudged a sexual psychopath and committed to the Department of Mental Hygiene. Several months thereafter, and after like proceedings had been instituted by petitioner, section 5519 of the Welfare and Institutions Code, the respondent court on its own motion initiated a further proceeding under said section. The petitioner was again committed as a sexual psychopath on January 27, 1956. At the time of the institution of the proceedings on the court's own motion, the petitioner had filed a motion for a new trial in the original criminal proceeding. The court continued that motion pending the outcome of the sexual psychopathy proceeding then before it, and upon termination thereof adverse to petitioner, the court denied his motion for a new trial. Petitioner then sought to appeal from that order and requested preparation of the clerk's and reporter's transacripts. The trial court, by its order of April 2, 1956, found that the order denying petitioner's motion for a new trial was not appealable in that the criminal proceeding had been suspended on motion by petitioner and was still suspended; that no judgment had been pronounced nor had probation been granted in the criminal proceeding; and denied the motion for preparation of the record without prejudice until such time as the criminal proceeding had been resumed and either judgment pronounced or probation granted.

In support of the court's order and in opposition to the petition now before us, respondents contend that under Rule 31 of Rules on Appeal, an appeal from an ‘* * * order denying a new trial shall not be taken until after the granting of probation or the rendition of judgment, * * *’; that therefore petitioner's appeal from the order denying his motion for a new trial is premature; and that the preparation of the requested transcripts at this time would be but an idle act which mandate will not compel.

Respondents' argument wholly ignores the Constitution, art. VI, sec. 1a; the applicable statutory provisions, Penal Code, sec. 1179 et seq. and 1237; the independent collateral nature of a new trial proceeding, In re Estate of Waters, 181 Cal. 584, 185 P. 951; and apparently places complete reliance upon the quoted portion of Rule 31. Under the cited provisions of the Constitution, the rule-making power of the Judicial Council is limited to the adoption or amendment of ‘* * * rules of practice and procedure for the several courts not inconsistent with laws that are now or that may hereafter be in force; * * *.’ Since 1872, section 1179 et seq. of the Penal Code have provided the machinery for making and prosecuting a motion for a new trial, and section 1237 of that code has provided that ‘an appeal may be taken by the defendant * * * from an order denying a motion for a new trial.’ Furthermore our courts have held in reference to the provisions of the Code of Civil Procedure governing new trials and the granting of the right to move therefor that they ‘* * * clearly evidenced an intent on the part of the Legislature to make the motion for a new trial wholly independent of and collateral to the main proceeding, in effect a new action in the nature of a writ of error brought to reverse the judgment in the lower court.’ In re Estate of Waters, supra, 181 Cal. at page 586, 185 P. at page 952.

Thus, under the applicable code provisions, a defendant is given the substantive right to move for a new trial, Penal Code, sec. 1182, and the substantive right of appeal from the order made in response to such motion. Penal Code, sec. 1237.

Additionally, our courts have jealously guarded the right of appeal, and in the early case of Ex parte Hoge, 48 Cal. 3, held this right guaranteed by the Constitution to be as sacred as the right to trial by jury. See also In re Adams, 81 Cal. 163, 22 P. 547; Smith v. McCallum, 36 Cal.App. 143, 172 P. 408.

But, says the prosecution, the petitioner has been deprived of nothing, since the criminal action was merely suspended, and therefore upon termination of the psychopathy proceedings and resuption of the criminal proceedings he may renew his motion. Prior to the 1951 amendment to section 1237 of the Penal Code allowing an appeal from an order granting probation, a somewhat similar contention was made in People v. Young, 35 Cal.2d 819, 221 P.2d 13. There the People contended that the appeal from the order denying the defendant's motion for a new trial should be dismissed as being not timely, their argument being that section 1182 of the Penal Code provided that an application for a new trial must be made before judgment; that this provision should be construed together with provisions dealing with probation, and in the light of the legislative intent to afford speedy determination of criminal actions; and that when so construed, section 1182 must be read as providing that a motion for new trial must be made before the pronouncement of judgment or the granting of probation. The court held that the contention of the prosecution read something into the section not to be found there, and ‘* * * would deprive a defendant of the right to attack the terms of probation by motion for a new trial or appeal from a denial thereof, and he would be left without adequate remedy since the probation order [was not at that time] appealable. Although it has been held that the right to the pronouncement of judgment is waived where probation is requested and accepted [citing cases] it does not follow that the right to move for a new trial should likewise be deemed waived upon the granting of probation in the absence of express statutory provision to that effect.’ 35 Cal.2d at pages 821–822, 221 P.2d at page 15.

Rule 31, therefore, insofar as it ties the substantive rights given by the applicable new trial statutes and the substantive right of appeal, also statutorily given, into the suspended criminal proceedings would affect substantial rights and cease to be merely procedural if given the application contended for by the respondents. The rule as stated in Lane v. Superior Court, 104 Cal.App. 340, 344, 285 P. 860, and approved in Stockton Theatres, Inc. v. Palermo, 47 Cal.2d 469, 304 P.2d 7, 11, is that,

“The rule-making power of the Judicial Council would seem to be limited by any existing law, the Constitution reserving to the Legislature and the people the primary and higher right to provide rules of procedure for our courts with the secondary right in the Judicial Council, to adopt rules only, when and where the higher authority of the Legislature and the people has not been exercised.”

What has heretofore been said may well be illustrated by the situation where a defendant moves for a new trial and in support thereof files affidavits showing the discovery of new evidence, the availability of which would obviously depend upon the lives of the witnesses who could supply the proposed evidence by their testimony. Necessarily, therefore, the possibility of the long suspension which might arise under the literal application of Rule 31 as argued by the respondents, could easily deny the fruits of a successful new trial proceeding based upon newly discovered evidence.

Let the writ issue.

PEEK, Justice.

VAN DYKE, P. J., and SCHOTTKY, J., concur.

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