PEOPLE v. JOHNSON

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Court of Appeal, Second District, Division 5, California.

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lee Z. JOHNSON, Defendant and Appellant.

Cr. 12595.

Decided: June 13, 1967

Herbert & Levine and Morton Herbert, Hollywood, for defendant and appellant. Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Lawrence Mindell, Deputy Atty. Gen., for plaintiff and respondent.

Defendant was charged by information filed by the District Attorney of Los Angeles County on June 18, 1963, with the crime of violation of section 11500 of the Health and Safety Code (possession of heroin) a felony.   He entered a plea of not guilty to the charge, waived trial by jury and was, on August 2, 1963, found guilty as charged.   A probation report was ordered and proceedings thereon and hearing on his motion for a new trial were continued to August 26, 1963.   On the latter date the motion for a new trial was denied, criminal proceedings were adjourned, and the sheriff was directed to file a petition against the defendant under the provisions of section 6451 of the Penal Code, now section 3051 of the WElfare and Institutions Code.   After a hearing on the petition the defendant was, on September 11, 1963, committed as a narcotics addict to the custody of the Director of Corrections.   He was returned to the court on May 4, 1966, and a supplemental probation report was ordered.   After a hearing and on May 19, 1966, probation was denied and the defendant was sentenced to state prison.   A notice of appeal from the judgment rendered on May 19, 1966, was filed on May 24, 1966.

At the time of trial and until its amendment in 1965, section 1237 of the Penal Code provided in part as follows:  “An appeal may be taken by the defendant:

‘'1. From a final judgment of conviction;  a sentence or an order granting probations hall 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 * * * narcotics addiction.

“2. From an order denying a motion for a new trial, in cases where the defendant is committed before final judgment for * * * 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.”  (Stats.1961, chap. 850, p. 2229.)

In 1965, the legislature added section 1237.5 to the Penal Code 1 and at the same time amended section 1237 by adding the language ‘'except as provided in Section 1237.5.”

Rule 31, California Rules of Court, provides in part as follows:  ‘'In the cases provided by law, an appeal is taken by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment or the making of the order, except that an appeal from an order denying a motion for a new trial in cases where the defendant is committed before final judgment for * * * narcotics addiction may be taken within 10 days after the making of such order or the defendant's commitment, whichever is later.”

Under the record before us it is apparent that the defendant had the right to appeal from the order denying his motion for a new trial and thus review any errors claimed to have occurred during the trial phase of the case.   He also had the right to appeal from the order of commitment after a hearing under the provisions of section 3051 of the WElfare and Institutions Code.  (Code of Civ.Proc., § 963;  People v. Gross, 44 Cal.2d 859, 285 P.2d 630;  In re De La O, 59 Cal.2d 128, 156, 28 Cal.Rptr. 489, 378 P.2d 793, 98 A.L.R.2d 705.)   Having failed to appeal within the time allowed by law from the order denying his motion for a new trial, he may not now review errors claimed to have occurred at the trial by appealing from the judgment pronounced some two years and eight months after the making of such order.  (See People v. Chavez, 243 Cal.App.2d 761, 52 Cal.Rptr. 633;  People v. Howard, 239 Cal.App.2d 75, 48 Cal.Rptr. 443.)   He chose to accept the benefits afforded under the narcotics rehabilitation law, as was his right to do, rather than attempt to secure a reversal of his conviction on appeal from the order denying his motion for a new trial.  (See People v. Wilkins, 169 Cal.App.2d 27, 32, 336 P.2d 540.)   In Chavez, Howard and Wilkins, the appeal was from a judgment pronounced sometime after the defendant had been granted probation;  probation had been revoked but no appeal had been taken from the order granting probation.   In Howard and Wilkins, it was reasoned that the defendant having been given the opportunity to reverse his conviction by an appeal from the order granting probation, but having accepted probation, he was then precluded from appealing on the merits of his conviction.   We believe the same reasoning should apply to the situation herein.

The contentions of the defendant on this appeal are (1) the evidence was obtained as a result of an illegal search and seizure and was therefore inadmissible, and (2) the use in evidence of the defendant's involuntary confession requires an automatic reversal.   Both of the foregoing contentions relate to errors claimed to have occurred during the trial and leading up to his conviction of the crime charged.   The claimed illegal search and seizure was a matter which could have and should have been reviewed upon appeal from the order denying the motion for a new trial.   The claim that an involuntary confession was used is based upon an alleged violation of the Dorado and Escobedo rule.2  This may not be reviewed on the present appeal.   (In re Lopez, 62 Cal.2d 368, 372, 42 Cal.Rptr. 188, 398 P.2d 380.)   The defendant, not having filed a notice of appeal from such order, is now foreclosed from a review of such claimed errors on an appeal from the judgment.

The defendant, of course, has the right of an appeal from the judgment pronounced on May 19, 1966.   The review on such an appeal is limited, however, to the regularity of the proceedings relating to the pronouncement of judgment and sentence and may not be extended retrospectively to review of the proceedings at the trial bearing upon the issue of his guilt.  (See People v. Le Gerrette, 245 Cal.App.2d 764, 766, 54 Cal.Rptr. 304.)   The defendant has not challenged the regularity of the proceedings had at the time of the pronouncement of the judgment and sentence on May 19, 1966.

The judgment is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   “No appeal shall be taken by defendant from a judgment of conviction upon a plea of guilty or nolo contendere, except where:“(a) The defendant has filed with the trial court a written statement, executed under oath or penalty of perjury showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings;  and“(b) The trial court has executed and filed a certificate of probable cause for such appeal with the county clerk.”

2.   People v. Dorado, 62 Cal.2d 338, 42 Cal.Rptr. 169, 398 P.2d 361;  Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

FRAMPTON, Justice pro tem.* FN*  Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

KAUS, P.J., and STEPHENS, J., concur.