People v. Funches

78 Cal.Rptr.2d 882 (1998) 67 Cal.App.4th 240 The PEOPLE, Plaintiff and Respondent,

v.

Jerry Carwell FUNCHES, Defendant and Appellant.

No. B123780. Court of Appeal, Second District, Division Five.

October 15, 1998. Rehearing Denied October 28, 1998. Review Denied January 27, 1999. Jerry Carwell Funches, in propria persona, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, William T. Harter, Supervising Deputy Attorney General, and Karen Moran O'Keeffe, Deputy Attorney General, for Plaintiff and Respondent.

TURNER, Presiding Justice.

Defendant, Jerry Carwell Funches, purports to appeal from a judgment imposed on January 28, 1985. The notice of appeal was not filed until June 4, 1998. We issued an order to show cause concerning potential dismissal of the appeal because of its apparent untimeliness. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126, 32 Cal.Rptr.2d 275, 876 P.2d 1074; Olson v. Cory (1983) 35 Cal.3d 390, 398, 197 Cal.Rptr. 843, 673 P.2d 720.) We set the matter for oral argument and now dismiss the appeal.

Subject to certain narrow constitutional limitations, there is no right to appeal. (Lindsey v. Normet (1972) 405 U.S. 56, 77, 92 S.Ct. 862, 31 L.Ed.2d 36; Trede v. Superior Court (1943) 21 Cal.2d 630, 634, 134 P.2d 745.) The California Supreme Court has repeatedly held that the right to appeal is wholly statutory. (People v. Chi Ko Wong (1976) 18 Cal.3d 698, 709, 135 Cal.Rptr. 392, 557 P.2d 976 disapproved on another point in People v. Green (1980) 27 Cal.3d 1, 33-34, 164 Cal.Rptr. 1, 609 P.2d 468 ["a judgment or order is not appealable unless expressly made so by statute"]; Skaff v. Small Claims Court (1968) 68 Cal.2d 76, 78, 65 Cal.Rptr. 65, 435 P.2d 825 ["a party possesses no right of appeal except as provided by statute"]; People v. Keener (1961) 55 Cal.2d 714, 720, 12 Cal.Rptr. 859, 361 P.2d 587, disapproved on another point in People v. Butler (1966) 64 Cal.2d 842, 844, 52 Cal.Rptr. 4, 415 P.2d 819, ["an order is not appealable unless declared [883] to be so by the Constitution or by statute"]; People v. Valenti (1957) 49 Cal.2d 199, 204, 316 P.2d 633 disapproved on another point in People v. Sidener (1962) 58 Cal.2d 645, 647, 25 Cal.Rptr. 697, 375 P.2d 641 ["the right of appeal is statutory and a judgment ... is not appealable unless it is expressly made so by statute"]; Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 728, 192 P.2d 916 ["the Legislature has the power to declare by statute what orders are appealable, and, unless a statute does so declare, the order is not appealable"]; Trede v. Superior Court, supra, 21 Cal.2d at p. 634, 134 P.2d 745 [there being no constitutional right of appeal: "the appellate procedure is entirely statutory and subject to complete legislative control"]; Superior Wheeler C. Corp. v. Superior Court (1928) 203 Cal. 384, 386, 264 P. 488 ["right of appeal is statutory and may be granted or withheld"].) Accordingly, there being no constitutional issue raised by the dismissal motion, the question before us is entirely statutory. In addition to statute, the scope of the right to appeal is defined by the court rules. Article VI, section 6 of the California Constitution[1] is the constitutional basis for the Judicial Council to adopt court rules restricting the right to appeal. Further, Penal Code section 1239, subdivision (a)[2] provides a statutory basis for the Judicial Council to adopt rules concerning the right to appeal in criminal cases.