People v. Howerton

TRAYNOR, J.

Defendant Azel Howerton was charged by information with the commission of a lewd and lascivious act on a child under the age of 14. (Pen. Code, § 288.) He pleaded not guilty and waived trial by jury. By stipulation, the People submitted their case on the transcript of testimony taken at the preliminary examination. Defendant testified in his own behalf. On January 10, 1952, the court adjudged defendant guilty of the crime charged in the information. On February 6, 1952, with defendant and his attorney present, the court denied defendant’s application for probation and pronounced judgment and sentenced him to prison for the term prescribed by law.

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In the same proceeding, the court found defendant to be a sexual psychopath, and suspended execution of sentence pending outcome of sexual psychopath proceedings. Defendant was committed to Norwalk State Hospital for observation. Defendant did not appeal from the judgment of February 6th.

On April 9, 1952, defendant was returned to the superior court for further proceedings. The hospital superintendent reported that in his opinion defendant was a sexual psychopath and a menace to the. health and safety of others, and would not benefit from treatment. The court ordered that

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the sentence imposed on February 6th be placed in effect and that defendant be delivered into the custody of the Director of Corrections. Defendant appeals from the “judgment” of April 9th, contending that the evidence adduced at the trial was insufficient to sustain his conviction. The People have filed a motion to dismiss the appeal, on the ground that the order of April 9th is a nonappealable order. We have concluded that this contention must be sustained and that the appeal must be dismissed.

In criminal cases an appeal must be taken within 10 days of rendition of the judgment or order appealed from. (Bules on Appeal, rule 31.) A timely appeal was not taken from the judgment of February 6th. The present appeal may be maintained only if the order of April 9th is an appealable order. Section 1237 of the Penal Code provides:

“An appeal may be taken by the defendant: