People v. SUPERIOR COURT OF SOLANO CTY.

KAUFMAN, P. J.

The People present the same question, both by petition for writ of mandate in Civil No. 20365, and by appeal from an order dated September 18, 1961, dismissing the action against defendant, Duane Howard Kasparek, in Criminal No. 4078. On July 10, 1961, defendant was charged by information with petty theft, and with a prior conviction for petty theft in the Justice Court of Solano County in December, 1958.

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Defendant was arraigned on July 17, 1961, and on July 24, 1961, duly entered a plea of guilty to the information; no plea was entered as to the prior conviction. Defendant’s counsel made a motion to have the matter referred to the probation officer for investigation and for delay in the pronouncement of judgment and sentence. This motion was granted and the matter further continued until September 18, at which time, the court made the following minute order: “Now come Deputy District Attorney E. Glynn Stanley and the defendant and his counsel, Edmund Pahl, to the bar of this Court, this being the time set for further consideration of the report of the Probation Officer and for Pronouncing of Judgment and Sentence. Bernard Dion, Deputy Solano County Probation Officer, is duly sworn and makes his further report. The Court, upon hearing the testimony of Dr. Arnold B. Lewis, who is duly sworn, orders the case dismissed. Defendant is ordered released from custody.” On September 21, 1961, the People filed their notice of appeal from this order in Criminal No. 4078, and on December 12 filed the petition for a writ of mandate in Civil No. 20365.

The first question is whether the above mentioned order of September 18 dismissing the action is an appealable order. The right of appeal is statutory. A judgment or order is not appealable unless it is expressly made so by statute. Section 1238 of the Penal Code designates the decisions in a criminal prosecution from which the People can appeal. The People here contend that the subdivisions which are pertinent are: subdivision 1, which provides for an appeal “From an order setting aside the indictment, information, or complaint” and subdivision 5, which provides for an appeal

[853]

“From an order made after judgment, affecting the substantial rights of the people.” Subdivision 1 of section 1238 has been generally understood to refer to an order setting aside the indictment or information on the grounds stated in section 995 of the Penal Code, i.e., in the case of an information on the ground (1) “That before the filing thereof the defendant had not been legally committed by a magistrate” or (2) “That the defendant had been committed without reasonable or probable cause.” In the case at hand, the order of dismissal was clearly not setting aside an information for such a defect in the proceeding. Furthermore, the effect of the order was not merely to set aside the information, but to dismiss the action. As no judgment was ever made or entered, the order of September 18 was clearly not an order after judgment under subdivision 5 of section 1238 of the Penal Code.