People v. Wright

KINGSLEY, J.

Defendant was charged with possession of marijuana, in violation of section 11530 of the Health and Safety Code. After a trial by the court, jury trial having been

[739]

waived, he was found guilty. A motion for a new trial was denied, proceedings were suspended and, on November 20, 1967, he was placed on probation for a period of five years. Thereafter, on allegations that the conditions of probation had been violated, probation was revoked and, eventually, defendant was sentenced to state prison.

During the course of a series of hearings involving the alleged violation of probation, defendant was ordered committed to the Department of Corrections for a diagnostic study under section 1203.3 of the Penal Code. The appeal in case number 15095 is from that order. It is not an appealable order and we dismiss that appeal. Thereafter, defendant was returned to the trial court with the diagnostic study, a further hearing was held and the prison sentence was pronounced. The appeal in case number 15346 is from that judgment, which is appealable. We affirm the judgment.

1

Although defendant properly has appealed from the judgment ultimately pronounced against him, that appeal brings before us only the question of whether or not the trial court properly revoked the probation granted to defendant on November 20, 1967. The order granting probation was, itself, an appealable order (Pen. Code, § 1237), and on such an appeal all matters going to the validity of the conviction could have been raised. Since they were not raised then, they cannot be raised on a later appeal from the final judgment.

(People

v.

Chavez

(1966) 243 Cal.App.2d 761, 763 [52 Cal.Rptr. 633] ;

People

v.

Howard

(1965) 239 Cal.App.2d 75, 77 [48 Cal.Rptr. 443] ;

People