People v. Bagby

Opinion

BROWN (Gerald), P. J.

—Elrena Vickie Bagby appeals an order granting her diversion (Pen. Code, § 1000) following her plea of guilty to misdemean- or possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)) entered after her motion to suppress evidence had been denied. Bagby has filed an opening brief in which her sole contention is the motion to suppress evidence should have been granted. A codefendant’s appeal remains pending. The People have moved to dismiss Bagby’s appeal on the sole ground criminal proceedings have been suspended, no judgment of conviction has been entered and a denial of a suppression motion is not reviewable on an appeal from a diversion order.

Initially we note a diversion order is appealable by the People to test the availability of diversion to the defendant

(People

v.

Wright,

47 Cal.App.3d 490, 492-493 [120 Cal.Rptr. 899]). Because a defendant must

[988]

consent to diversion, it is unlikely a defendant would qualify as an aggrieved party entitled to an appeal to test the validity of the diversion order itself. That, however, is not before us on this appeal and we do not determine whether under any circumstances an appeal would lie by a defendant to test a diversion order.

People

v.

Chi Ko Wong,

18 Cal.3d 698, 709 [135 Cal. tr. 392, 557 P.2d 976] tells us: “It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute.”

Penal Code section 1237 provides for an appeal from a final judgment of conviction. The section lists those orders which are to be deemed final judgments for purposes of an appeal. Thus sentences, probation orders, insanity commitments, mentally disordered sex offender commitments and commitments for narcotics addiction are all deemed final judgments of conviction for appeal purposes. No provision is made for deeming a narcotics diversion under Penal Code section 1000 et seq. as a final judgment of conviction in an appeal.