People v. Rick

VALLÉE, J.

Defendant, having pleaded guilty to burglary which the court found to be of the second degree, made application for probation. The application was denied and he was referred to the Youth Authority. On January 8, 1952, the court committed defendant to the Youth Authority for the term prescribed by law, and remanded him to the sheriff to be held in custody under the jurisdiction of the Youth Authority and subject to any orders it might issue.

On January 18, 1952, the Youth Authority had designated Chino as the place of detention of defendant, but he had not been transferred to that institution and was still in the custody of the sheriff. On that day defendant moved the court for an order staying execution of the commitment

[412]

and requested that the cause again be referred to the probation officer for consideration of probation. The motions were denied on the sole ground that the signed commitment had been placed in the United States mail on January 9, 1952; that sufficient time had elapsed for the Authority to have received it; and that, therefore, under section 1737 of the Welfare and Institutions Code, the court had lost jurisdiction.

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Defendant appeals from the order denying the motions.

The People assert that the order is not appealable and that the appeal should be dismissed. Penal Code, section 1237, provides that an appeal may be taken by -the defendant “[f]rom any order made after judgment, affecting the substantial rights of the party.” An order made after judgment is not appealable where the motion merely asked the court to repeat or overrule a former ruling on the same facts.

(People

v.

Palmer,

49 Cal.App.2d 579, 580 [122 P.2d 114].) There is nothing in the record to show that the case comes within this rule. We think that if the court had jurisdiction to grant the motion to stay execution of the commitment the denial of the motions affected the substantial rights of the defendant and that the order is appealable.

(People