People v. Saad

105 Cal.App.2d Supp. 851 (1951) THE PEOPLE, Respondent,

v.

PETER SAAD, Appellant.

California Court of Appeals.

Aug. 8, 1951. J. T. Forno for Appellant.

S. Ernest Roll, District Attorney, Jere J. Sullivan and Ralph Bagley, Deputy District Attorneys, for Respondent.

THE COURT.

On the same day that he was sentenced to serve 10 days in the county jail and to pay a fine of $300, the defendant, appearing in propria persona, filed a notice that he appealed "from the verdict and conviction and from the denial of defendant's motion for a new trial made this 23d day of April, 1951." [1] There is, of course, no appeal from the verdict. (See Pen. Code, 1466, which lists the judgments and orders from which defendants may appeal in criminal cases in the inferior courts and does not include the verdict, and People v. Ormes (1948), 88 Cal.App.2d 353, 354 [198 P.2d 690, 691], which gives the same effect to identical language appearing in section 1237 in relation to appeals from superior courts.) [2] Nor does section 1466, Penal Code, include in the list a "conviction." Provision is made, however, for an appeal from the "judgment of conviction." It is not farfetched to conclude that by "conviction" in his notice of appeal, the defendant meant to point to the "judgment of [105 Cal.App.2d Supp. 853] conviction." As we said in People v. Lopez (1941), 43 Cal.App.2d Supp. 854, 867 [110 P.2d 140, 147], where we held an appeal from a "sentence" to be an appeal from a "judgment of conviction": "Notices of appeal should not be construed more strictly in criminal cases than they are in civil cases, where the rule is that 'notices of appeal are liberally construed to preserve the right to review unless it appears that the respondent has been misled by the misdescription.' " Not only does it not appear that the respondent has been misled, in this case, but we find counsel for the People magnanimously supplying these cases in support of the thesis that we should interpret the notice of appeal as being one from the judgment of conviction: People v. Yates (1931), 114 Cal.App. Supp. 782, 790 [298 P. 961, 964]; People v. Hawthorne (1944), 63 Cal.App.2d 262, 264 [146 P.2d 517, 518]; People v. Aresen (1949), 91 Cal.App.2d 26, 28 [204 P.2d 389, 390, 957]; Holden v. California Emp. Stab. Com. (1950), 101 Cal.App.2d 427, 430-431 [225 P.2d 634, 636]. We so interpret it.

[3] On such an appeal we may, of course, consider whether or not the complaint, upon which the conviction is based, states a public offense. It seems plain to us that no public offense was stated, in this case, for the charge is limited to those provisions of section 337.5, Penal Code, which are void because, in their uncertainty, they violate the due process provision of the Fourteenth Amendment.