People v. Appellate Department of Superior Court

THE COURT. The petitioner seeks by this proceeding to prohibit the respondent appellate department from entertaining a certain appeal pending before it.

Golden State Motors and one Oliver Pezel were convicted in the municipal court of the city of Los Angeles of a violation of section 654a of the Penal Code. Within due time and on February 1, 1936, they filed a written notice of appeal from the judgment of conviction. On February 5, 1936, they served and filed the reporter’s transcript on appeal which was “settled” as the statement on appeal by the judge of the municipal court on February 13, 1936. No other statement was filed or, served by the appealing defendants. Subsequently the People filed in the respondent court a motion to dismiss the appeal on the ground that the defendants had not served and filed any statement setting forth the grounds upon which they intended to rely upon the appeal from the judgment. The motion was [58]denied and upon the filing of the petition herein an alternative writ of prohibition was issued.

It is contended that because the transcript so filed did not contain a statement of the grounds of the appeal, and no such separate statement was filed, the effect is as though no appeal had been taken, the respondent court has no jurisdiction to hear the appeal on the merits, and its only function is to dismiss the appeal. The petitioner places reliance on the provisions of section 1468 of the Penal Code and the cases construing and applying that section or similar provisions.

Prior to July, 1935, and on- January 1, 1935, section 1468 of the Penal Code provided that appeals to the superior court should be heard upon a statement of the case settled by the judge of the trial court. It required that the statement contain the grounds upon which the party intends to rely upon the appeal, and so much of the evidence as may be necessary to explain the grounds. The statement was required to be filed and a copy served within five days after filing the notice of appeal. Opportunity was given the adverse party to file amendments, and provision was made for settlement of the statement by the court within a prescribed time. The section concluded with the following: “If no statement is filed and served as herein provided the appeal is ineffectual for any purpose, and shall be deemed dismissed, and the judgment or order appealed from shall be enforced as if no appeal had been taken. ’ ’

In July, 1935, section 1468 of the Penal Code was reenacted - to provide as follows: “Appeals to the superior courts shall be heard and determined, the decisions thereon shall be remitted to the inferior courts, and the records on such appeals shall be made up and filed in such time and manner as shall be prescribed in rules to be promulgated by the Judicial Council. Until such rules are. promulgated, the time and the manner provided by statute in force on January 1, 1935, shall govern.”