People v. Brown

THE PEOPLE, Respondent, v. CARL E. BROWN, Appellant.

COUNSEL

Charles R. Garry and George Olshausen for Appellant.

Edmund G. Brown, Attorney General, Clarence A. Linn, Assistant Attorney General, Raymond M. Momboisse, Deputy Attorney General, Thomas C. Lynch, District Attorney (San Francisco), and Norman Elkington, Assistant District Attorney, for Respondent.

On denial of a motion for rehearing, after the granting without opinion of a motion to dismiss the appeal, the following opinion was rendered:

OPINION

THE COURT.

Petitioner moved this court under Penal Code, section 1265, to set aside the judgment of conviction previously affirmed by this court in People v. Brown, 131 Cal. App. 2d 643 [281 P.2d 319]. We denied the motion from the bench without opinion. At the same time we granted a motion to dismiss an appeal from a similar order made by the superior court.

[1] On petition for rehearing of these orders, petitioner Brown argues that this court was required by article VI, section 24, California Constitution, to file a written opinion In Funeral Directors Assn. v. Board of Funeral Directors, [149 Cal. App. 2d 176] 22 Cal. 2d 104 [136 P.2d 785], the Supreme Court held that this constitutional provision does not require a written decision when the court denies an original application for a writ. Here petitioner proceeded by motion instead of by petition. His choice of the method of application should not affect the rule announced in the cited case.

It has been the accepted practice for both the Supreme Court and the District Courts of Appeal to grant motions to dismiss appeals from the bench without written opinion. The justification for this procedure is that in dismissing an appeal the court determines that the "cause" is not properly before it.

Petition for rehearings of both orders denied.