People v. Alberts

COUGHLIN, J.

The defendant was charged with grand theft, i.e., a violation of section 487, subdivision 1 of the Penal Code, and with a prior conviction and imprisonment in the state prison for robbery in the first degree; pleaded guilty to the theft charge and admitted the allegations of prior conviction and imprisonment; applied for probation and, at the probation hearing, admitted that he was armed with a deadly weapon at the time of the prior robbery. The

[109]

trial court denied the application for probation upon the ground that the defendant was not eligible for probation and sentenced him to imprisonment in the state prison. Prom the judgment entered and the order denying probation the defendant appeals.

The order denying probation may be reviewed on appeal from the judgment; is not appealable; and the attempted appeal therefrom should be dismissed.

(People

v.

Newlan,

173 Cal.App.2d 579 [343 P.2d 618];

Schaefer

v.

Superior Court,

113 Cal.App.2d 428 [248 P.2d 450].)

The defendant contends that by the amendment of section 1203 of the Penal Code in 1957 the trial court was required to pass upon the merits of his application for probation. The amendment provisions upon which he relies are the following:

“The Legislature hereby expresses the policy of the people of the State of California to be that,

except in unusual cases where the interest of justice demands a departure from the declared policy,

no judge shall grant probation to any person who shall have been convicted of robbery, burglary or arson, and who at the time of the perpetration of said crime or any of them or at the time of his arrest was himself armed with a deadly weapon . . . nor to a defendant who used or attempted to use a deadly weapon upon a human being in connection with the perpetration of the crime of which he was convicted, nor to one who in the perpetration of the crime of which he was convicted wilfully inflicted great bodily injury or torture, nor to any such person unless the court shall be satisfied that he has never been previously convicted of a felony in this State nor previously convicted in any other place of a public offense which would have been a felony if committed in this State.” (Emphasis added.)