In Re Marquez

3 Cal.2d 625 (1935) In the Matter of the Application of FRANK MARQUEZ for a Writ of Habeas Corpus.

Crim. No. 3868. Supreme Court of California. In Bank.

May 17, 1935. U.S. Webb, Attorney-General, and Frank Richards, Deputy Attorney-General, for Appellant.

Gladys Towles Root for Respondent.

PRESTON, J.

The above-named defendant, Frank Marquez, was charged, by information containing four counts, with the crime of rape, a felony. He entered a plea of guilty to count one and applied for probation, whereupon the court ordered that proceedings as to that count be suspended and that defendant be granted probation for a period of twenty years, under condition that "the first four years of said probationary period, defendant shall serve at the county road camp. ..."

After serving one year in the county road camp, defendant sued out a writ of habeas corpus upon the ground that "any period in excess of one year in the county jail is therefore in excess of the period of confinement in the county jail permitted by section 19a of the Penal Code". The superior court, in said habeas corpus proceeding, thereupon granted defendant a discharge from custody. The People of the State of California then undertook to exercise the right of appeal conferred upon them by section 1506, which was added to the Penal Code in 1927 (Stats. 1927, p. 1061). Said section in part reads:

"An appeal may be taken to the district court of appeal by the people from a final order of a superior court made upon the return of a writ of habeas corpus discharging a defendant after his conviction, in all criminal cases prosecuted by indictment or information in a court of record. ..."

[1] Upon consideration of the cause the honorable District Court of Appeal, Second District, Division Two, stated that against its better judgment it felt compelled to dismiss [627] the appeal because of the following language found in a recent decision of this court upholding the constitutionality of said section 1506 (In re Alpine, 203 Cal. 731, at p. 745 [265 P. 947, 58 A.L.R. 1500]): "It is clear from the language of said section that an appeal is only allowable after conviction and in those cases where there is an existing judgment against the defendant." It will be noted that this statement does not conform to the terminology of the statute itself, but extends the provisions thereof in that it purports to limit the statutory right of appeal "after conviction", etc., by adding the further requirement, not mentioned in the statute, that there be also an "existing judgment against the defendant". In this cause, although defendant was guilty and had been convicted, having been placed on probation in the first instance there was no existing judgment against him. Probation is not a judgment (People v. DeVoe, 123 Cal.App. 233 [11 PaCal.2d 26]; People v. Patello, 125 Cal.App. 480 [13 PaCal.2d 1068]; People v. Noone, 132 Cal.App. 89 [22 PaCal.2d 284]; People v. Neel, 133 Cal.App. 332 [24 PaCal.2d 230]). It is obvious that the second clause of the above-quoted sentence, to wit: "and in those cases where there is an existing judgment against the defendant", was not essential to the holding announced in the Alpine case and crept into the decision through inadvertence. Said statement must therefore be qualified by elimination of said objectionable portion thereof. There is no doubt that the instant case represents a proper exercise by the People of their right of appeal under said section 1506 of the Penal Code.