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

The PEOPLE, Plaintiff and Respondent, v. Alfred GONZALES, Defendant and Appellant.

Cr. 12162.

Decided: June 06, 1967

Frank Co. Morales, Los Angeles, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Philip C. Griffin, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged with a violation of section 11501 of the Health and Safety Code, a felony, and a prior conviction of 11500 of the Health and Safety Code, a felony. Defendant was arraigned with counsel, pled ‘not guilty,’ and denied the prior conviction. During the first trial defendants admitted the prior, and a mistrial was declared because of a jury deadlock. A second trial was had, defendant again admitted the prior, and defendant was found guilty as charted. Motion for new trial was denied, the criminal proceedings were adjourned, and proceedings under section 6451 of the Penal Code were ordered.1 On January 25, 1966, the criminal proceedings were resumed, probation was denied, and defendant was sentenced to state prison. The appeal is from the judgment.

Defendant seeks, on this appeal, to raise sundry issues, all going to alleged errors at the trial of the case. But the present appeal does not bring those matters before us for determination. The applicable provision of the Penal Code is section 1237, which reads as follows:

‘An appeal may be taken by the defendant:

‘1. From a final judgment of conviction except as provided in Section 1237.5; a sentence or an order granting probation shall be deemed to be a final judgment within the meaning of this section; upon appeal from a final judgment the court may review any order denying a motion for a new trial, except when an appeal from an order denying a motion for a new trial has previously been finally determined in cases where the defendant has been committed for sexual psychopathy, insanity, or narcotics addiction.

‘2. From an order denying a motion for a new trial, in cases where the defendant is committed before final judgment for sexual psychopathy, insanity, or narcotics addiction. Such an appeal shall be dismissed if while it is pending an appeal is taken under subdivision 1.

‘3. From any order made after judgment, affecting the substantial rights of the party.’

We think that this language indicates a legislative intent that errors at the trial should be reviewed, if at all, by an appeal from the order denying a new trial, where such a motion has been made and denied,2 the criminal proceedings are suspended and proceedings under the Narcotics Rehabilitation Act have been instituted.3 The situation is analogous to that existing where a defendant, having been granted probation prior to the imposition of sentence, fails to take the permissible appeal from that order and thereafter, after probation has been revoked and sentence imposed, seeks to raise on his appeal from that final judgment errors at the trial which could have been raised by an earlier appeal from the order. In People v. Chavez (1966) 243 Cal.App.2d 761, 52 Cal.Rptr. 633, in People v. Howard (1965) 239 Cal.App.2d 75, 48 Cal.Rptr. 443, and in People v. Wilkins (1959) 169 Cal.App.2d 27, 336 P.2d 540, it was held that such an appeal from the final judgment raised only matters connected with the revocation and the sentence, the reasoning being that defendant had had a full opportunity to raise any trial errors at a time when they were fresh and that, by accepting the benefits of probation he had waived any errors at the trial. The same considerations apply here. Defendant could, long since and while witnesses and evidence were still available for a new trial if necessary, have brought before us the matters on which he now relies. Instead, he chose to accept the benefits of the narcotic rehabilitation program and now, when he has failed to respond to that treatment, would repudiate his earlier position. The law does not countenance such ambivalence.

Since no contention is made that there were any errors in the resumption of the criminal proceedings or in the proceedings at the time of sentence, the judgment is affirmed.

I would affirm the judgment upon the ground that my review of the record leading to the conviction shows no reversible error. I do not agree that defendant is not entitled to such a review under the present wording of Penal Code section 1237.

The language of subdivision 2 differs significantly from the language of subdivision 1, indication a different meaning, and precluding the analogy which the majority opinion draws. Under subdivision 1 an order granting probation is ‘deemed to be a final judgment’ for the purpose of appeal. This is the reason why a failure to appeal therefrom will foreclose a later appeal from the actual judgment. No such language is found in subdivision 2, which applies to persons committed for narcotics addiction.

Subdivision 2 of section 1237 provides that an appeal from the order denying a new trial shall be dismissed if while it is pending an appeal is taken from the judgment. This implies that an appeal from the judgment entitles the appellant to a review of everything that could have been reviewed on an appeal from the motion.

I agree that a defendant ought to be required to choose between a prompt appeal and a waiver in these cases, but the present statute does not so provide.


1.  Now Welfare and Institutions Code, section 3051.

2.  Since a motion for new trial may be made at any time prior to sentence, it follows, as of course, that if the motion is not made prior to the suspension of the criminal proceedings, an appeal from a subsequent judgment imposing sentence will raise trial errors, since that judgment represents defendant's firs opportunity to present such matters and the policy which allows a delay in moving for a new trial prevents the inference of any kind of waiver from the mere failure to make the motion earlier.

3.  Where the trial court has adopted the alternative procedure, permitted by section 6451 (now Welf. & Inst.Code, § 3051), of imposing the criminal sentence and thereafter suspending its execution for the purpose of instituting narcotic rehabilitation proceedings, there is a final judgment at that stage and any appeal must be filed within the statutory 10 day period thereafter (cf. People v. Succop (1967) 65 Cal.2d 483, ——, 55 Cal.Rptr. 397, 421 P.2d 405,a dealing with the analogous situation under the Mentally Disordered Sex Offender Act). In that situation, if a defendant is thereafter returned to court for resumption of the criminal proceedings pursuant to what is now section 3053 of the Welfare and Institutions Code, there remains to be made only the non-appealable order direction that the suspended sentence be carried into execution (cf. People v. Bachman (1955) 130 Cal.App.2d 445, 279 P.2d 77, also dealing with the analogous situation under the Mentally Disordered Sex Offender Act).a. 65 A.C. 523, 530.

KINGSLEY, Associate Justice.

JEFFERSON, J., concurs.