People v. Le Gerrette

WHELAN, J.

Defendant was convicted of possessing a narcotic (Health

&

Saf. Code, § 11500) by the court, sitting without a jury. The criminal proceedings were suspended before sentence and without any ruling upon defendant’s application for probation, to ascertain, under section 3051, Welfare and Institutions Code, if defendant was addicted to narcotics or in danger of becoming so addicted. He was found to be addicted and on January 12, 1966, was committed pursuant to section 3051, Welfare and Institutions Code.

Defendant has appealed by his handwritten letter which states; ‘I would like to file an appeal of my case . . he does not state from what order he wishes to appeal.

Since the criminal proceedings were suspended prior to the imposition of sentence, and prior to any action on defendant’s request for probation, there is no appealable final judgment of conviction. (Pen. Code, § 1237, subd. 1.)

In eases where the defendant is committed before final judgment for narcotics addiction, an appeal may be taken from an order denying a motion for new trial. (Pen. Code, § 1237, subd. 2.) However, defendant did not move for a new trial.

An appeal may be taken from the order of commitment pursuant to Welfare and Institutions Code, section 3051, as a final order made in a special proceeding under section 963, Code of Civil Procedure.

(People

v.

Gross,

44 Cal.2d 859 [285 P.2d 630];

In re De La O,

59 Cal.2d 128 [28 Cal.Rptr. 489, 378 P.2d 793].) The only appealable order, therefore, is the order of commitment made under section 3051, Welfare and Institutions Code, Defendant has filed what will be treated as a sufficient notice of appeal from the commitment order.

(People

v.

Juvera,

214 Cal.App.2d 569 [29 Cal.Rptr. 653].) However, in such appeal he may base error only on the lack of jurisdiction of the trial court to institute commitment proceedings or the invalidity of the proceedings culminating in the order itself. Instead, defendant seeks to attack the admissi