People v. Gonzales

KINGSLEY, J.

Defendant was charged, in three counts, with violations of the Health and Safety Code provisions prohibiting the possession of various narcotics. After a trial by the court (trial by jury having been waived), she was found guilty of the violation charged in count III (illegal possession of codeine) ; the other two counts were dismissed by the People. On September 6, 1968, a motion for a new trial was made and denied; the trial court adjourned the criminal proceedings and directed the institution of proceedings under the Narcotic Rehabilitation Act. That order concluded as follows : “In the event defendant is not committed, it is ordered that she be returned to this [criminal] department on September 27, 1968, at 9 am.” Defendant was released on her own recognizance.

[742]

Defendant did not appear for the hearing under the Narcotic Rehabilitation Act nor did she appear in the criminal trial department on September 27th. On the latter date, the court ordered a bench warrant to issue for her apprehension. So far as the record before us shows, she is still at large.

On September 6, 1968, immediately following the denial of her motion for a new trial and the other proceedings on that date, defendant filed a notice of appeal from “the judgment” and from the order denying her motion for a new trial. The Attorney General now moves to dismiss the appeal. We grant the motion.

Since the purported appeal was taken on September 6, 1968, and all proceedings in the trial court were within that same month, her right to appeal is determined by the provisions of section 1237 of the Penal Code as that section read prior to its amendment by the 1968 Legislature.

1

As of that date, the section read as follows: “An appeal may be taken by the defendant:

“1. From a final judgment of conviction except as provided in Section 1237.5; a sentence or an order granting probation shall be deemed to be a final judgment within the meaning of this section; upon appeal from a final judgment the court may review any order denying a motion for a new trial, except when an appeal from an order denying a motion for a new trial has previously been finally determined in cases where the defendant has been committed for sexual psychopathy, insanity, or narcotics addiction.