People v. Walker

LILLIE, J.

For his conviction of grand theft from the person (Pen. Code § 487 subd. 2) the court, on September 15, 1959, suspended proceedings and granted defendant probation for five years on the condition, among others, that he spend the first six months in the county jail. Prior to the expiration of the term the order was modified to effect his release. Thereafter, defendant deserted probation and for his viola

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tion, a second modification of the order confined him to the county jail for 30 additional days. More than a year after his release, and on June 13, 1962, he was again brought before the court for violating probation. A supplemental probation report was ordered and the matter was continued. On July 5, 1962, defendant and his counsel were present, probation was revoked and the matter, on defendant’s motion, was continued to July 11, 1962. On that day the lower court, having read the entire file and the probation reports and given counsel full opportunity to speak on defendant’s behalf, ordered the revocation to stand; and having no legal cause why judgment should not be pronounced, defendant was sentenced to the state prison. His appeal is from “the verdict of guilty, the probation and sentence that followed as well as the violation of probation and judgment therein.”

Notice of appeal from the order of September 15, 1959, granting probation, not having been timely filed, the purported appeal from the “verdict of guilty, the probation and sentence” is dismissed. Inasmuch as an order revoking probation is nonappealable

(People

v.

Robinson,

43 Cal.2d 143 [271 P.2d 872];

In re Bine,

47 Cal.2d 814 [306 P.2d 445]), we treat the within appeal as one from the judgment of July 11, 1962, which permits a review of the validity and merits of the order revoking probation

(In re Davis,

37 Cal.2d 872 [236 P.2d 579]); it however precludes a review of any matters preceding the order granting probation.