People v. Rosalez

CONLEY, P. J.

The defendant, Tony Eosalez, Jr., entered a plea of guilty to a charge in the information of violation of section 288 of the Penal Code, lewd and lascivious conduct. Pursuant to the requirements of the Penal Code, sexual psychopathy proceedings were held; the court found that the defendant was not a sexual psychopath, and the criminal action was revived. Thereafter, the trial judge denied probation and sentenced the defendant to imprisonment in the California State Prison for the term prescribed by law and until legally discharged.

The defendant filed a notice of appeal in due course, and the record consists of a clerk’s and reporter’s transcript. He is not represented by counsel on the appeal, and he has not as yet filed his opening brief.

The Attorney General moved to dismiss the appeal on the grounds that the appeal is “. . . frivolous, sham, and without any merits or appellate objective.” Because of his incarceration, the defendant was not present when the motion to dismiss was argued, but he filed written opposition entitled “Motion to Dismiss Notice of Dismissal of Appeal.”

The motion of the Attorney General is primarily based upon the well-established rule that there cannot be an effective appeal on the merits from a judgment based upon a plea of guilty. In

Stephens

v. Toomey, 51 Cal.2d 864, 870 [338 P.2d 182], the Supreme Court says: “The judgment entered on the plea of guilty is not appealable on the merits.

[645]

The rule is correctly stated with supporting authority in 24 Corpus Juris Secundum at pages 683 and 684: ‘. . . where judgment has been entered on a plea of guilty, irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.’ ” (See also

People

v.

Emigh,

174 Cal.App.2d 392 [344 P.2d 851];

People

v.