People v. Williams

FINLEY, J. pro tem.

*

The notice of appeal herein states that defendant “appeals from the judgment of conviction or other final order rendered against him in the above entitled matter on May 17, 1966.”

Defendant pled guilty to assault with a deadly weapon (Pen. Code, § 245, subd. (a)), admitted three prior felony convictions, and applied for probation. After some discussion with counsel concerning the constitutionality of paragraph 5 of Penal Code, section 1203, the court denied probation.

Defendant bases his appeal on the ground that paragraph 5 of Penal Code, section 1203, insofar as it requires the concurrence of the district attorney in a judge’s decision to grant probation, is in violation of the Fourteenth Amendment to the United States Constitution, and of article I, sections 11, 13, 21; article III, section 1; and article VI, sections 1, 5 of the since superseded California Constitution.

Respondent takes the initial position that the judgment provides no legal ground upon which appellant may predicate an appeal since his legal rights are not injuriously affected by the judgment. Following are respondent’s points and authorities: The party claiming invalidity must show that his rights are injuriously affected by the portion of the law that he is attacking.

(In re Durand,

6 Cal.App.2d 69, 70 [44 P.2d 367].) The party must be directly affected by its operation.

(People

v.

Steelik,

187 Cal. 361, 365 [203 P. 78].) The detriment must run as to him and not depend upon a hypothetical question under which defendant claims that the statute would be invalid.

(People

v.

Busick,

32 Cal.App.2d 315 [89 P.2d 657];

People

v.

Rogers,

112 Cal.App. 615 [297 P. 924].) One who seeks to raise a constitutional question must show that his rights are affected injuriously by the law which he attacks and that he is actually aggrieved by its operation.