People v. McShane

BISHOP, J.

The only notice of appeal in this case states that it is taken “from the judgment entered in above entitled matter on January 13, 1954.” The action taken by the trial court on that date was to find the defendant guilty and summarily grant probation. Among other terms of the probation, the trial court imposed a fine of $500 and required that the defendant serve the first 10 days of his three-year probationary period in jail. In a very similar situation the court observed in

People

v.

Hartshorn

(1943), 59 Cal.App.2d 285, 286 [138 P.2d 782, 783] : “As no sentence was imposed upon the verdict there is no judgment to appeal from. ...” Plainly, this is so.

(People

v.

Guerrero

(1943), 22 Cal.2d 183, 184 [137 P.2d 21, 22];

People

v.

Jones

(1950), 36 Cal.2d 373, 375 [224 P.2d 353, 354].)

In spite of the fact that in each of the cases just cited the appeal from the nonexistent judgment was dismissed, we have concluded that that should not be our action in this case, but that we should proceed as though the appeal were from the order granting probation. (The problem is before us on an order to show cause why the appeal should not be dismissed.) We may follow the course indicated, without being disrespectful to the courts whose opinions we have cited, because of a change in the statutory law that became effective in 1951. At the time the cited cases were decided, no appeal was authorized from an order granting probation, with the consequence that no appeal would lie from such an order either as the judgment it was not or as the order it was. Sections 1237 and 1466 of the Penal Code were amended in 1951 so that now appeals may be taken from orders granting probation. If, then, our notice of appeal may properly be interpreted as referring to the order granting probation, although it uses the term “judgment,” we have an appeal.

*Supp. 847

We have concluded that the notice may and should be construed as an appeal from the order. As stated in