Opinion
Hearing Granted and Retransferred to Court of Appeal Dec. 9, 1971.
Opinion on pages 512 to 516 omitted
HEARING GRANTED
See 22 Cal.App.3d 20 for subsequent opinion.
Walter C. Culpepper, Los Angeles, for defendant and appellant.
Evelle J. Younger, Atty. Gen., Arnold O. Overoye and Robert D. Marshall, Deputy Attys. Gen., for plaintiff and respondent.
AISO, Associate Justice.
Defendant Metcalf and a codefendant (not a party to this proceeding) were charged by information with a violation of Penal Code section 288a (oral copulation). Defendant moved to have the information set aside under Penal Code section 995 and to suppress the testimony given at the preliminary hearing by a surveilling police officer under Penal Code section 1538.5 in that the officer's observations were made in violation of defendant's right of privacy under the Fourth Amendment. The motions were denied. Defendant then waived his rights to a jury trial and to confront and cross-examine witnesses, and his privilege against self-incrimination; he further stipulated to the cause being submitted upon the transcript of the preliminary hearing.
Defendant personally and his counsel stipulated with the People's counsel 'to 647(b) as the lesser included offense to 288a of the Penal Code.' After the court stated that it had read and considered the transcript of the preliminary hearing, defendant's counsel argued: 'In argument, your Honor, we would point out that the evidence before the Court shows a violation of 647(b). And we would ask that the Court make a finding of the lesser charge. That is the only argument we would submit.' Thereupon, the court found defendant 'guilty of a violation of Section 647(b) of the Penal Code, a misdemeanor.'
Penal Code section 647, subdivision (b), provides that every person '[w]ho solicits or who engages in any act of prostitution' is guilty of a misdemeanor and that '[a]s used in this subdivision, 'prostitution' includes any lewd act between persons for money or other consideration.'
Defendant's counsel and defendant personally waived a probation report on this date (December 16, 1970) and the matter of probation and sentence was continued to January 14, 1971.
On January 14, 1971, the court placed defendant upon summary probation conditioned upon defendant's payment of a fine and penalty assessment totaling $125 and with the proviso that probation terminate [97 Cal.Rptr. 770]upon satisfactory proof of payment of the fine. Defendant then proceeded forthwith to the clerk's office and paid the $125. Later the same date, upon defendant's tendering of receipt number M304452, probation was 'terminated and case dismissed pursuant to Section 1203.3 * * * and 1203.4' of the Penal Code.
Defendant's counsel, on January 25, 1971, filed a notice of appeal 'from the judgment entered in this action against the defendant on January 14, 1971.' January 24 fell on a Sunday.
The tenor of defendant's brief is that he seeks a review of the order denying his motions under Penal Code sections 995 and 1538.5 by way of appeal from a judgment (order granting probation).
The threshold question is whether there is an appealable order granting probation since defendant's motion under Penal Code section 1203.4 was granted and the case dismissed pursuant to that section. We hold that there was no longer a subsisting order granting probation from which an appeal could be taken. The effect of the grant of defendant's motion under section 1203.4 was to set aside the court's finding of guilty and to cause a dismissal of the information filed against him, releasing defendant 'from all penalties and disabilities resulting from the offense of which he [had] been convicted,' provided, however, that 'in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved' with the 'same effect as if probation had not been granted or the * * * information dismissed.' (Pen.Code, § 1203.4.)
The fact that defendant made the motion was confirmed on oral argument.
Since this point was not raised in the Attorney General's briefs, we gave both counsel an opportunity to brief this point by letter memorandum following oral argument. The Attorney General filed such a letter memorandum; defense counsel advised the court that he was foregoing submission of such a memorandum.
We think of no instance, however, in which the proviso clause of section 1203.4 about pleading and proving the conviction as if no probation had been granted can be invoked to defendant's detriment where the conviction was for a violation of Penal Code section 647, subdivision (b). Since it was not a felony conviction, it cannot be the basis of impeachment in any other judicial proceeding. (See Evid.Code, § 788, subd. (c).) The misdemeanor conviction here involved is not one which may be used as a basis (an essential element) for making the offense a felony on a second conviction, such as a petty theft with a prior conviction and incarceration for a petty theft (Pen.Code, § 666) or indecent exposure (Pen.Code, § 314). There is no provision making an increase in punishment mandatory upon a second violation of Penal Code section 647, subdivision (b). Normally a misdemeanor conviction cannot be the basis of increased punishment for a subsequent criminal conviction. (See People v. Banks (1959) 53 Cal.2d 370, 388, 1 Cal.Rptr. 669, 348 P.2d 102.) Consequently, defendant is unable to point out any residual criminal grievance in this case.
Cases such as Sibron v. New York (1968) 392 U.S. 40, 50-58, 88 S.Ct. 1889, 1896-1900, 20 L.Ed.2d 917, 927-932, and In re Byrnes (1945) 26 Cal.2d 824, 828, 161 P.2d 376 are distinguishable. The defendants therein were granted an appellate review of their convictions even though they had completed their sentences prior to appellate consideration of their appeals. But in those cases, the convictions and sentences were still of record and subsistent at the time of review. In this case, the conviction was set aside and the information dismissed upon defendant's motion, thus removing the underpinning of the order granting probation and rendering it a nullity as we have pointed out.
The plea advanced by defendant upon this attempted appeal is not that of moral innocence disclaiming the acts he was charged with having committed in a men's room in a May Company department store, [97 Cal.Rptr. 771]but a technical legal defense (albeit on constitutional grounds). Furthermore, he was not without remedy to have the rulings of the trial court made adversely to him on the 995 and 1538.5 motions reviewed had he chosen to do so by petitioning this court for a writ of prohibition and/or mandamus (Pen.Code, §§ 999a; 1538.5, subd. (i)) or by way of appeal from the order granting probation (Pen.Code, § 1237, subd. 1) before he caused the expungement of his conviction by his own motion under Penal Code section 1203.4 (People v. Banks, supra (1959) 53 Cal.2d 370, 388-391, 1 Cal.Rptr. 669, 348 P.2d 102).
The attempted appeal from the nonexistent judgment (order granting probation) is ordered dismissed.
STEPHENS, Acting P. J., and REPPY, J., concur.