People v. Overton

[371]

FOX, P. J.

Appellant was charged in an indictment with one count of violating section 11530, Health and Safety Code (possession of marijuana). One Robert Otto was charged along with appellant in this count and was charged separately in a second count with the same crime.

Appellant was arraigned and entered a plea of guilty. A probation officer’s report was ordered. Appellant’s motion to vacate his plea of guilty was denied. Probation was denied, and he was sentenced to the state prison.

When appellant’s application for probation came on for hearing, the trial judge stated he had read and considered the probation officer’s report and inquired whether there was any reason why judgment should not be pronounced. Counsel for appellant thereupon objected to the court’s consideration of the report on the ground that it contained extrajudicial statements indicating that his client was involved in narcotic activities with his codefendant Otto other than count I charging him with possession of marijuana. Counsel then made a motion for a continuance of the hearing on probation and sentence and that “a new probation report be made which will only go into the facts that we have pleaded guilty to here.” Counsel also moved that “defendant be permitted to change his plea of ‘guilty’ to ‘not guilty’ because he is only guilty of one thing, and that is what he pleaded to . . . the possession of narcotics in his room, as he stated.” This appeal is from the “judgment herein rendered . . . and from the judgment denying defendant’s motion for continuance of hearing for probation and sentence, and denying defendant’s motion to set aside his plea of guilty and permitting him to enter a plea of not guilty to the charge against him.”

We find no merit in any of appellant’s contentions.

No appeal lies from an order denying probation

(People

v.

Hinton,

166 Cal.App.2d 743, 749 [333 P.2d 822] ;

People

v.