People v. Glass

ROTH, P. J. Appellant has ified an appeal from an order reinstating her probation after a dismissal of her appeal [452]from the original judgment of conviction. We hold that the order is nonappealable and dismiss the appeal.

In July 1964 appellant was convicted of abortion (Pen. Code, § 274). Proceedings were suspended and an order granting probation was made August 12, 1964, upon conditions, two of which were incarceration the first six months in county jail and payment of a $500 fine plus penalty assessments.

Appellant appealed in pro. per. from said order.1 Pending the appeal appellant was granted bail and obtained a stay of execution. The appeal was dismissed for failure to file an opening brief. On May 4, 1965, the remittitur was returned to the superior court.

On May 27, 1965, a supplementary probation report was ordered. On June 23, 1965, appellant was again arraigned for judgment. Appellant moved for a modification of the terms of her probation. The motion was denied. The judge stated: “. . . a probation officer makes a recommendation 10 months ago, and then nothing very momentous has happened. Since that time an appeal is taken, and then the probation officer says ‘Well, now, to send her to jail as the Judge originally did and to impose sentence would be anticlimactic.’ That’s like saying, ‘All you have to do is get convicted, take an appeal,’ and the probation officer feels that ‘Well, now the whole motive for punishment is behind us, so let’s forget it. ’

( C

‘ ‘ That would do nothing but encourage Defendants who had been correctly convicted and properly sentenced to file pro. per. notices of appeal and let 10 months go by with no processing of the appeal at all. ...”

Thereafter proceedings were again suspended and the judge made an order reiterating verbatim the prior order of probation. It is from this latter order that appellant attempts to appeal.

The issue presented is whether the order appealed from, which is “a sentence or order granting probation” within the meaning of section 1237, subdivision 1 of the Penal Code from which an appeal may be taken, is the same order in respect of which a previous appeal was taken and dismissed or is it a new order from which appellant may take a new appeal ?

In the case at bench, the terms of probation were neither