People v. Sepulveda

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[Crim. No. 3391. Second Appellate District, Division One. October 10, 1940.]

THE PEOPLE, Respondent, v. CAROLINE SEPULVEDA, Appellant.

COUNSEL

Lewis A. Schaffer for Appellant.

Earl Warren, Attorney-General, and L. G. Campbell, Deputy Attorney-General, for Respondent. [41 Cal. App. 2d 99]

OPINION

Doran, J.

Under the heading "Grounds for this Appeal" appellant's opening brief contains the following: "This appeal from the order revoking probation and from the judgment sentencing appellant to imprisonment in the state prison is predicated upon the following premises"; then follows the seven so-called "premises" which in substance set forth that the "imposition of sentence of imprisonment upon appellant in the state prison was void", and that "no competent legal evidence had been brought before the court to support the allegations that served as the basis for revocation of probation".

The record reveals that on August 29, 1938, appellant had pleaded guilty to one count of an information alleging the commission of four offenses of issuing worthless checks. After a hearing, further proceedings were suspended and probation was granted, the term thereof fixed at three years with the added condition that the defendant serve three months in the county jail. May 6, 1940, the above-mentioned order was revoked and, following a hearing, judgment was pronounced confining the defendant in the Women's Institution at Tehachapi for the term prescribed by law.

The record further reveals the notice of appeal to be as follows: "You, and each of you, will please take notice that the defendant above-named, Caroline Sepulveda, appeals from the order revoking probation and the sentence thereon, which said Order was duly made on the 7th day of July, 1940, in Department 41 of the above-entitled Court, the Honorable Frank G. Swain, Judge Presiding. Dated: July 10th, 1940. Lewis A. Schaffer, Attorney for Appellant." (Italics added.) It will be seen from the above notice that there is no appeal herein from the judgment, appellant's brief to the contrary notwithstanding.

[1] The law makes no provision for an appeal from an order revoking probation made before judgment, nor is there any appeal from a sentence. Section 1237 of the Penal Code sets forth the decisions from which a defendant may appeal in a criminal action, and reads as follows: "An appeal may be taken by the defendant: 1. From a final judgment of conviction; 2. From an order denying a motion for a new trial; 3. From any order made after judgment, affecting the substantial rights of the party." The order here in question was made before judgment and is not appealable and the [41 Cal. App. 2d 100] above-quoted provisions of the Penal Code immediately reveal the lack of a right of appeal from a sentence in any event. Though appellant's opening brief refers to an appeal from a judgment sentencing appellant to imprisonment, all points raised and arguments advanced are addressed solely to the order revoking probation and the sentence imposed. It is clear that this appeal is of the character denominated in appellant's notice of appeal above quoted.

For the foregoing reasons the appeal is dismissed.

York, P. J., and White, J., concurred.