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District Court of Appeal, Second District, Division 4, California.

The PEOPLE, Plaintiff and Appellant, v. Geraldine W. ALOTIS, Defendant and Respondent.

Cr. 8682.

Decided: May 20, 1963

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood, Deputy Dist. Atty., Robert J. Lord, Deputy Dist. Atty., for plaintiff and appellant. Harold J. Ackerman and William A. Drake, Los Angeles, for defendant and respondent.

Defendant was originally charged by the state with violation of section 217 of the Penal Code, Assault with Intent to Commit Murder. To this count defendant pled not guilty. Trial by jury was waived and the trial commenced. During the trial the district attorney, per stipulation, filed an amended information charging a second count, assault by means of force likely to produce great bodily injury. (Pen.Code, § 245.) To this amended count defendant pled guilty. Count I was dismissed and the court imposed sentence under Count II as follows: One year in the county jail, that sentence being suspended and probation granted for a period of three years on certain conditions.

The state now prosecutes this appeal from the order granting the defendant probation.

May the state appeal from an order granting probation, made after judgment?

This issue is not properly before this court at this time. On July 9, 1962, Division One of this court denied a petition by the People for a writ of mandate directed to this same order, the order denying the petition reading:

‘Petition for writ of mandate denied. (Probation order after judgment is appealable by People, and People have appealed.)’

This order is now the law of the case and is controlling in the absence of any showing that unfairness would result from application of that doctrine. (Pigeon Point Ranch, Inc. v. Perot (1963) 59 A.C. 239, 28 Cal.Rptr. 865, 379 P.2d 321.)

Apart from the doctrine of the law of the case, the appealability of an order made in the form herein involved is settled by earlier decisions. The instances in which a state may appeal in a criminal case are enumerated in section 1238 of the Penal Code. Section 1238, subdivision 5 states:

‘An appeal may be taken by the people:

‘(5) From an order made after judgment, affecting the substantial rights of the people.’ Therefore, an order granting probation after judgment is appealable by the People. (People v. Superior Court (Leslie), (1953) 118 Cal.App.2d 700, 258 P.2d 1087; People v. Orrante (1962) 201 Cal.App.2d 553, 20 Cal.Rptr. 480.)

Did the superior court have jurisdiction to grant probation?

The clerk's original minute order stated that, as to Count I, the court found the weapon used was not used as a deadly weapon. Upon motion by defendant's attorney, without objection by the district attorney, the minute order was amended so as to eliminate the restrictive reference to Count I and to read, ‘* * * the court finds the weapon used was not used as a deadly weapon.’ This amendment correctly states the court's finding.

At the time of trial, the People expressly acquiesced in the court's ruling that the weapon used was not used as a deadly weapon. People's failure to object at that time to this ruling amounts to an assent to the ruling. (People v. Burke (1956) 47 Cal.2d 45, 301 P.2d 241.) No motion to vacate this finding was ever directed to the trial court; and at no time on this appeal have the People attempted to attack this finding on the facts. They here contend solely that, as a matter of law, a pistol, admittedly carried by defendant, was a ‘deadly weapon.’ We believe, however, that, whether or not this finding finds support in the evidence is not determinative of the question as to the validity of the order granting probation in this case.

The powers of a court as to granting probation in felony cases are set forth in the third and fourth paragraphs of section 1203 of the Penal Code. As was stated in People v. Superior Court (Guerrero), (1962) 199 Cal.App.2d 303, 305, 18 Cal.Rptr. 557, 559: ‘Authority is vested in the court to grant probation except in those cases in which authority is specifically withheld.’ Since, as was held in the case just cited, paragraph 3 relates only to persons convicted of robbery, burglary or arson, we turn to the limitations upon granting probation imposed by paragraph 4. The crime of assault by means of force likely to produce great bodily injury is not one of the offenses enumerated in that paragraph. In the Guerrero case, the court held that the words ‘in the perpetration of the crime of which he was convicted,’ as used in paragraph 3, meant ‘in the perpetration of any one of said crimes of which he was convicted,’ the reference back being to the crimes enumerated in paragraph 3. The words in paragraph 4 on which the People rely are identical with the words so construed in the Guerrero case; they have the same meaning in both paragraphs. It follows that the use of a deadly weapon bars a grant of probation only when such weapon is used in the perpetration of one of the offenses enumerated in paragraph 4.

Consequently, whether or not the trial court's finding as to the use of a deadly weapon is open to attack in this court, no restriction existed against a grant of probation to this defendant upon her conviction of the crime here involved.

The order appealed from is affirmed.

KINGSLEY, Justice.

BURKE, P. J., and JEFFERSON, J., concur.

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