People v. Collom

Opinion

KINGSLEY, J. Defendants were charged with burglary, in violation of section 459 of the Penal Code; sundry prior convictions were alleged against each defendant. Defendants pled not guilty and denied the priors. A trial by jury resulted in a mistrial. On the second trial, both defendants w'ere found guilty, the verdicts fixing the degree as second degree. The priors were found to be true.1 Motions for a new trial were made and denied; the criminal proceedings were suspended and the institution of proceedings under the Narcotic Rehabilitation Act was ordered. Those proceedings resulted in the commitment of each defendant to the California Rehabilitation Center. Each defendant filed a notice of appeal from “the judgment of conviction and the denial of the motion for a new trial.”2 We affirm.

[928]I

The briefs discuss the question of the existence of a valid appeal. Since the criminal proceedings were suspended and the record does not disclose any further judgment in the criminal case, it follows that there was no “judgment of conviction” from which to appeal; that portion of the. appeal must be dismissed. The order suspending the criminal proceedings and directing the institution of narcotic commitment proceedings, not being an order within section 1237 of the Penal Code, likewise was not appealable. But, at the date herein involved (November 1967) an order denying a motion for a new trial was appealable in cases involving (inter alia) narcotic commitments. That portion of the appeal is valid and before us for determination.

II

The briefs3 for defendants raise the following issues: (1) Insufficiency of the evidence of guilt; (2) Insufficiency of the evidence to support any finding as to the alleged priors; (3) No express finding as to the second prior alleged against defendant Collom; (4) Coercion of the jury; (5) Improper instruction on defendants’ failure to testify; (6) Improper use at the second trial of testimony given by a witness at the first trial; (7) Error, as to defendant Donovan, with respect to the prior alleged against him.

However, an appeal from an order denying a new trial raises, on appeal, only those alleged trial errors which were made the basis of the new trial motion. (People v. Lee Chuck (1889) 78 Cal. 317, 330 [20 P. 719]; People v. Murphy (1962) 207 Cal.App.2d 885, 889-890 [24 Cal.Rptr. 803]; People v. Dillard (1959) 168 Cal.App.2d 158, 165-166 [335 P.2d 702]; People v. Beatcher (1934) 136 Cal.App. 337, 338-339 [28 P.2d 943].)