People v. Robinson

43 Cal.2d 143 (1954) 271 P.2d 872 THE PEOPLE, Respondent,

v.

WILLIAM C. ROBINSON, Appellant.

Docket No. Crim. 5579. Supreme Court of California. In Bank.

June 25, 1954. [144] Andrew H. McConnell, Samuelson & Buck and Clarence Hengel for Appellant.

Edmund G. Brown, Attorney General, and William E. James, Deputy Attorney General, for Respondent.

SPENCE, J.

In September, 1951, defendant pleaded guilty to a charge of violating Penal Code, section 337a, subdivision 3 (bookmaking), and applied for probation. On November 5, 1951, upon arraignment for judgment, proceedings were suspended and defendant was placed on "probation for a period of two years under the following conditions: Defendant must serve thirty days of his probationary period in the County Jail, with good time allowed, if earned; must not engage in gambling activities; and must obey all rules and regulations of the Probation Department." On May 7, 1953, the court found that defendant had violated the terms of his probation, which was thereupon revoked, and judgment was pronounced, whereby defendant was sentenced to the county jail for the term of three months. Defendant appeals from the "order revoking probation."

[145] Preliminarily, the propriety of defendant's designation of his appeal as an appeal from the "order" rather than the "judgment" must be considered. At the time probation was granted in November, 1951, as well as later when it was revoked and sentence was pronounced, Penal Code, section 1237, as amended in 1951, authorized an appeal by a defendant: "1. From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section; 2.... 3. From any order made after judgment, affecting the substantial rights of the party." (Emphasis added.) Prior to the 1951 amendment adding the italicized clause, an order granting probation did not constitute a "final judgment of conviction" from which an appeal might be taken. (In re Phillips, 17 Cal.2d 55, 63-64 [109 P.2d 344, 132 A.L.R. 644]; People v. Leach, 90 Cal. App.2d 667, 671 [203 P.2d 544].) [1] While under the 1951 amendment an order granting probation is expressly designated a "final judgment" for the purpose of appeal (People v. Haeussler, 41 Cal.2d 252, 254 [260 P.2d 8]; People v. Brown, 114 Cal. App.2d 52, 53 [249 P.2d 595]; People v. Sumner, 117 Cal. App.2d 40 [254 P.2d 598]), a subsequent order revoking probation does not thereby become an "order made after judgment, affecting the substantial rights of the party" and so appealable. (Pen. Code, § 1237, subd. 3.) To hold otherwise would give the 1951 amendment greater scope than its language would reasonably support in its limited extension of a defendant's right to appeal from a theretofore nonappealable order. (3 Cal.Jur.2d, § 86, p. 536.) Rather, it would appear that upon entry of judgment in a case following the order revoking probation, the latter order does not gain any added stature by reason of the 1951 amendment because made after the order granting probation but it remains, as before, an intermediate order reviewable on appeal from the judgment. (People v. Boyce, 99 Cal. App.2d 439, 442 [221 P.2d 1011].) [2] Of course, an order revoking probation made after entry of judgment is appealable within the express terms of subdivision 3, section 1237, of the Penal Code. (People v. Martin, 58 Cal. App.2d 677, 678 [137 P.2d 468].)