Reset A A Font size: Print

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

The PEOPLE of the State of California, Plaintiff and Respondent, v. Carl E. BROWN, Defendant and Appellant.

Cr. 3301.

Decided: March 15, 1957

Charles R. Garry, George Olshausen, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., of California, Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty., of the City and County of San Francisco, Norman Elkington, Asst. Dist. Atty., San Francisco, for respondent.

Petitioner moved this court under Penal Code, § 1265 to set aside the judgment of conviction previously affirmed by this court in People v. Brown, 131 Cal.App.2d 643, 281 P.2d 319. We denied the motion from the bench without opinion. At the same time we granted a motion to dismiss an appeal from a similar order made by the Superior Court.

On petition for rehearing of these orders, petitioner Brown argues that this court was required by Art. VI, sec. 24, California Constitution, to file a written opinion. In Funeral Directors Ass'n v. Board of Funeral Directors, 22 Cal.2d 104, 136 P.2d 785, the Supreme Court held that this constitutional provision does not require a written decision when the court denies an original application for a writ. Here petitioner proceeded by motion instead of by petition. His choice of the method of application should not affect the rule announced in the cited case.

It has been the accepted practice for both the Supreme Court and the District Courts of Appeal to grant motions to dismiss appeals from the bench without written opinion. The justification for this procedure is that in dismissing an appeal the court determines that the ‘cause’ is not properly before it.

Petition for rehearings of both orders denied.