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

The PEOPLE, Plaintiff and Respondent, v. Jesus Urbina GALLEGOS, Defendant and Appellant.

Cr. 30777.

Decided: January 27, 1978

Dennis L. Cava, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Pounders and Ronald N. Ito, Deputy Attys. Gen., for plaintiff and respondent.

Defendant was convicted of sale of heroin in violation of Health and Safety Code section 11352, former subdivision (a). Criminal proceedings were suspended and on August 25, 1976, pursuant to Welfare and Institutions Code section 3051 he was civilly committed as a narcotic addict or a person in imminent danger of becoming addicted. Subsequently he was returned to the court and criminal proceedings were resumed. On March 8, 1977, defendant was sentenced to state prison, with credit for 503 days of prior custody. The same day defendant filed a notice of appeal from the judgment.

Defendant's attorney does not argue any issues on this appeal except issues relating to the 1976 trial. Those issues are not reviewable on this appeal because the Legislature provided an earlier occasion for appellate review of such issues.

The judgments and orders from which a defendant may appeal in a criminal case are those specified in Penal Code section 1237. Prior to its 1968 amendment, that section provided two avenues for appellate review of a conviction in a case in which proceedings were suspended and the defendant committed for narcotics addiction.1 One was to appeal from the “final judgment of conviction.” The other was to make a motion for a new trial, and, if that motion was denied, appeal from the order of denial. The unsatisfactory consequences of giving the defendant those alternatives was pointed out by the Supreme Court in People v. Gonzales (1968) 68 Cal.2d 467, 67 Cal.Rptr. 551, 439 P.2d 655.

In that case Gonzales was convicted of a narcotics offense in 1965. On June 15, 1965, his motion for a new trial was denied, criminal proceedings were adjourned and civil proceedings were instituted, with the result that he was committed as a narcotics addict. No appeal was taken from the order denying a new trial.

Later Gonzales was returned from the rehabilitation center, and on January 25, 1966, the court sentenced him to prison. Gonzales then appealed from the 1966 judgment.

The Supreme Court held that the judgment pronounced January 25, 1966, was the “final judgment” resulting from the 1965 conviction, and thus Gonzales was entitled to a review of the 1965 trial proceedings on that appeal, notwithstanding his failure to exercise his right to appeal from the 1965 order denying a new trial. The Gonzales opinion commented on the undesirability of allowing a right of appeal to be exercised so long after the trial.2 The court said:

“The failure here to present the claims of error on appeal at the first opportunity to do so created dangers that witnesses might disappear or their memories fade should a retrial be necessary. Those same dangers exist where a defendant delays in moving for a new trial. Under Penal Code, section 1182 a defendant can move for a new trial long after his commitment for narcotics addiction so long as the motion is made before judgment or an order granting probation. (Cf. Thurmond v. Superior Court, 49 Cal.2d 17, 19 et seq. (314 P.2d 6).) The dangers caused by either type delay were and continue to be matters for the Legislature to consider; however, under Penal Code, section 1237, as it now reads, defendant is not barred from raising the claims of error on this appeal. To hold otherwise would create a trap foreclosing an appeal on the merits.” (68 Cal.2d at pp. 470-471, 67 Cal.Rptr. at p. 553, 439 P.2d at p. 657.)

The Gonzales opinion also pointed out that the law was different for appeals taken after a grant of probation, because of the language of section 1237. The court said:

“Cases such as People v. Chavez, 243 Cal.App.2d 761, 763 (52 Cal.Rptr. 633); People v. Howard, 239 Cal.App.2d 75, 77 (48 Cal.Rptr. 443); People v. Glaser, 238 Cal.App.2d 819, 821 (48 Cal.Rptr. 427); and People v. Wilkins, 169 Cal.App.2d 27, 32 (386 P.2d 540), differ from the present one. In the cited cases the defendant was placed on probation after proceedings were suspended, no appeal was taken from the order granting probation, but thereafter when probation was revoked and sentence imposed the defendant appealed from the judgment. The cases state that on such an appeal the general rule is that the defendant's failure to appeal from the order granting probation estops him from claiming error with respect to matters occurring before that order, and review on appeal is restricted to the proceedings in connection with the revocation of probation and sentencing. Those cases are not analogous to the instant one because section 1237 contains substantially different provisions governing the two situations.” (68 Cal.2d at p. 470, 67 Cal.Rptr. at p. 553, 439 P.2d at p. 657.)

The portion of section 1237 upon which Chavez and the other cited cases rested was the provision that “an order granting probation shall be deemed a final judgment within the meaning of this section.”

The 1968 amendment to section 1237 eliminated the right to appeal from an order denying a motion for a new trial and added the provision “The commitment of a defendant for narcotics addiction shall be deemed a final judgment within the meaning of this section 90 days after such commitment.”

The 90-day delay period takes into account the provision in Welfare and Institutions Code section 3053 that, after receipt of a person at the commitment facility, the Director of Corrections may conclude that the person is not a fit subject for treatment, and may thereupon return the person to the court for further proceedings on the criminal charges. If a person is returned soon after his receipt at the facility, it is probable that criminal proceedings will be resumed and a judgment pronounced in the criminal case within 90 days of the suspension of proceedings. The 1968 amendment to section 1237 gives the defendant the opportunity to see what happens to him during this critical 90-day period before exercising his option to appeal the conviction.

In People v. Murphy (1969) 70 Cal.2d 109, 74 Cal.Rptr. 65, 448 P.2d 945, the Supreme Court had occasion to point out the meaning and effect of the 1968 amendment to section 1237. The Murphy case was a civil appeal from the order committing appellant for narcotics addict rehabilitation. In explaining the distinction between the civil appeal, which attacks only the civil commitment proceeding, and the criminal appeal, which reviews the guilt trial, the court stated in footnote 4 on page 115, 74 Cal.Rptr. on page 68, 448 P.2d on page 948:

“In People v. Gonzales (1968) 68 Cal.2d 467, 471 (67 Cal.Rptr. 551, 439 P.2d 655), we pointed out that this procedure often caused lengthy delays in reviewing the criminal judgment. In response, the Legislature has now amended Penal Code section 1237 to provide in relevant part that ‘An appeal may be taken by the defendant: 1. From a final judgment of conviction . . . . The commitment of a defendant for narcotics addiction shall be deemed to be a final judgment within the meaning of this section 90 days after such commitment.’ (Stats.1968, ch. 315, s 2; s 3 effected a similar change in Penal Code section 1466, the basic appeal statute in misdemeanor cases; see also Cal.Rules of Court, rules 31(a) and 182, as amended eff. Nov. 13, 1968.) (P) Although the 1968 revision comes too late to apply to the case at bar, the result would in any event have been the same under its terms. From the phrase, ‘within the meaning of this section,’ we infer that the amendment was meant to cure only the evil to which it was directed, i. e., the delayed appealability of the criminal judgment in this type of case: under the new statute, such an appeal may now be noticed as soon as 90 days after the making of the order of commitment. . . . ”

In the present case, the order of August 25, 1976, committing defendant to the narcotics rehabilitation center was a judgment of conviction for the purpose of an appeal. Defendant had a right of appeal 90 days after that date. Under rule 31(a) of the California Rules of Court, a notice of appeal from that judgment would have been timely if filed during the 60 days following that 90-day period. A notice of appeal filed within the 90-day period would have been premature but, in the discretion of the reviewing court, it could have been treated as valid.3

Defendant's notice of appeal, filed March 8, 1977, was timely as an appeal from the judgment pronounced that day, but was not timely as an appeal from the conviction. This is the teaching of the cases which arose under the previously existing statutory language which made an order granting probation “a final judgment within the meaning of this section (1237).” (See People v. Gonzales, quoted supra, and cases cited.) The purpose of the 1968 amendment, as suggested by the Supreme Court in Gonzales, and the effect of the amendment, as noted in Murphy, is that a defendant who desires a review of his guilt trial may have it only by a notice filed within 150 days after the commitment order.

Defendant's appellate counsel points out that the record shows that the trial court failed to advise him of his right of appeal as is required by rule 250, California Rules of Court.4 Upon the basis of that procedural error, counsel asks this court to review the trial record for error on this appeal. That approach misconceives the purpose and effect of rule 250, the appropriate remedy of an aggrieved defendant, and the limited scope of the present appeal.

Rule 250 was adopted by the Judicial Council, effective in 1972, with two objectives. One was the prophylactic assurance that a defendant understood his appellate rights in case his attorney failed to advise him. The other was to create a record which would rebut claims of ignorance advanced by defendants as an excuse for a late appeal. (See 1972 Annual Report of the Administrative Office of the Courts, p. 53; In re Benoit (1973) 10 Cal.3d 72, 85, 109 Cal.Rptr. 785, 514 P.2d 97.)

A person who has been convicted of a crime may or may not know, without advice, about his right of appeal. The trial attorney is, of course, the proper person to advise the defendant both as to the desirability of appealing and the manner in which to proceed. Prior to the adoption of rule 250, the Supreme Court described the responsibility of the trial attorney as follows: “Of course, the trial attorney is under no obligation to represent the defendant on the appeal, but where the defendant clearly indicates, as he did here, that he desires to appeal, the trial attorney is under a duty not to ignore that request. The trial attorney is under a duty either to file the notice of appeal, or to instruct the defendant as to the proper procedure, or to see that the defendant has counsel to do these things for him.” (People v. Diehl (1964) 62 Cal.2d 114, 117-118, 41 Cal.Rptr. 281, 283, 396 P.2d 697, 699.)

The failure of the trial court to give the advice required by rule 250 does not automatically confer upon the defendant an option to take an appeal at any future time of his own choosing. Rather, the remedy is to remove the prejudice, if any results from the trial court's failure. Thus, if it should appear that, through ignorance, the defendant failed to file a timely notice of appeal, he may request relief upon a proper showing, if he acts diligently after learning of his rights. The law governing such applications has been explained in Castro v. Superior Court (1974) 40 Cal.App.3d 614, 115 Cal.Rptr. 312.

An appropriate vehicle to correct the erroneous denial of a right of appeal is a habeas corpus proceeding (see In re Benoit, supra, 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97), although the Castro decision impliedly recognizes a proceeding in the appellate court in the nature of mandamus to compel the superior court to process the belated appeal. Whichever writ is sought, the remedy is by an original proceeding in which the factual issues e. g., petitioner's claimed ignorance and his diligence, or lack of it, upon discovery may be raised and decided.

[4– The proceeding now before this court is no more than an appeal from the judgment pronounced March 8, 1977. We do not have before us any factual allegations which would support a claim for relief, or any record to show that defendant is entitled to a late appeal from the August 25, 1976, judgment. In the pending appeal, we have no jurisdiction to review claims of error occurring on or before August 25, 1976.

The brief filed by counsel for defendant did not attack any of the proceedings which occurred subsequent to the civil commitment. After we had examined that brief, we sent a copy of it to defendant personally (in conformity with the procedure specified in People v. Feggans (1967) 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21) and advised him that if he wished to present any other brief or statement of his grounds of appeal, he might do so by letter within 30 days. No response has been received from appellant. Our own inspection of the record satisfies us that the record does not contain any arguable issue which may be raised on defendant's behalf on this appeal.

The judgment pronounced March 8, 1977, is affirmed.


1.  Penal Code section 1237, prior to the 1968 amendment, read as follows: “An appeal may be taken by the defendant: 1. From a final judgment of conviction . . . ; 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. . . . ”

2.  A civil commitment for narcotics addiction may be in effect for as long as seven years. (See Welf. & Inst.Code, ss 3200, 3201.)

3.  Rule 31(a), California Rules of Court: “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 60 days after the rendition of the judgment or the making of the order. A notice of appeal filed prior to the time prescribed therefor is premature, but may, in the discretion of the reviewing court for good cause, be treated as filed immediately after the rendition of the judgment or the making of the order.”

4.  At the time defendant was committed, rule 250 read as follows: “After imposing sentence or making an order deemed to be a final judgment in a criminal case upon conviction after trial, the court shall advise the defendant of his right to appeal from the judgment, of the necessary steps and time for taking an appeal and of the right of an indigent defendant to have counsel appointed by the reviewing court. A reporter's transcript of the proceedings required by this rule shall be forthwith prepared and certified by the reporter and filed with the clerk.”

FILES, Presiding Justice.