People v. Means

California Court of Appeal Mar 26, 1953 No. Crim. 4909Published

Before: McCOMB

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Holding. The court held that an order of commitment issued after a final judgment is appealable when it affects the substantial rights of a defendant whose application for probation remains pending and unruled upon. The failure of the trial court to rule on the defendant's probation application constitutes a prejudicial error requiring remand.

Issues

Whether the court may consider grounds for reversal of a judgment from which no timely appeal was taken.
Whether an order of commitment made after a final judgment is appealable when a probation application remains pending.
Whether the trial court's failure to rule on a pending probation application constitutes reversible error.

Disposition. remanded

Quotations verified verbatim against the opinion

“None of these questions may be considered by this court for the reason that defendant did not appeal from the judgment pronounced May 21, 1952.”

“Where a judgment has been pronounced and become final a subsequent order of commitment substantially affects the rights of a defendant whose application for probation has not been ruled upon, and is therefore appealable”

“In the instant case it was mandatory upon the trial judge to rule upon defendant’s application for probation and his failure to do so deprived defendant of a substantial right entitling him to a reversal of the order of August 6, 1952.”

CHRONOLOGY

McCOMB, J.

i. April 24, 1952, defendant, after trial by jury, was found guilty of violating section 288 of the Penal Code. Defendant’s request to have leave to file an application for probation was granted and the hearing on said application and time for pronouncing judgment was set for May 21, 1952.

ii. May 21, 1952, judgment and sentence were pronounced upon defendant directing that he be incarcerated in the state prison for the term prescribed by law. The court found defendant to be a sexual psychopath, suspended execution of the sentence and ordered him to be sent to the State Hospital at Norwalk for observation and diagnosis pursuant to section 5512 of the Welfare and Institutions Code.

No action was talcen at this time or at any subsequent period upon defendant’s application for probation.

iii. July 24, 1952, the superintendent of the Norwalk State Hospital having reported that defendant was not a sexual psychopath, the court ordered defendant’s return for further proceedings.

iv. August 6, 1952, the trial judge made an order that the judgment and sentence imposed on May 21, 1952, was in full force and effect and ordered defendant into the custody of the sheriff of Los Angeles County by him to be delivered to the Director of Institutions at the California State Prison at Chino.

Prom this order defendant appeals.

Defendant urges as grounds for reversal that (1) the evidence is insufficient to support the judgment of conviction, (2) the trial court erred in refusing to permit certain expert testimony, (3) the court erred in limiting the impeachment of the complaining witness, and (4) the trial judge erred in rulings with reference to certain character evidence.

[31]

None of these questions may be considered by this court for the reason that defendant did not appeal from the judgment pronounced May 21, 1952.

Since in criminal cases an appeal must be taken within 10 days of rendition of a judgment (Rules on Appeal, rule 31, 36 Cal.2d 26), the judgment in the present case became final, Thus since there is no appeal from the judgment pending before this court we are precluded from considering the various grounds upon which defendant urges its reversal.

People v. Means

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CHRONOLOGY

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