If the judge had sentenced defendant and then suspended the sentence when he granted probation, the subsequent order revoking probation would have been an "order made after judgment" and appealable under Penal Code, section 1237, subdivision 3. ( People v. Robinson, 43 Cal.2d 143, 145 [ 271 P.2d 872]; People v. Martin, 58 Cal.App.2d 677, 678 [ 137 P.2d 468]; see People v. Silva, 241 Cal.App.2d 80, 82 [ 50 Cal.Rptr. 243].) However, since defendant was not sentenced until after probation had been revoked, the order of revocation is an intermediate order reviewable only on appeal from the judgment.
In the interests of justice, we construe the notice of appeal as being from the "judgment." ( People v. Robinson (1954) 43 Cal.2d 143, 145-146 [ 271 P.2d 872].) II. DISCUSSION
(Pen. Code, § 1237, subds. 1, 2; Stats. 1961, chs. 650, § 3, p. 1855 and 850, § 5, p. 2229.) Appellant quotes from People v. Robinson (1954) 43 Cal.2d 143 at page 145 [ 271 P.2d 872], wherein the 1951 amendment is referred to as a "limited extension of a defendant's right to appeal from a theretofore nonappealable order," as the court rejected the contention that a subsequent order revoking probation, where imposition of sentence had been suspended, was "an order made after judgment." (See Pen. Code, § 1237, subd. 3.)
[5] Nor can the order revoking probation be considered as before us on an appeal therefrom, as suggested by appellant (A.O.B., p. 1), for it is not an appealable order. ( People v. Robinson, 43 Cal.2d 143 [ 271 P.2d 872]; People v. Mason, 184 Cal.App.2d 182 [ 7 Cal.Rptr. 525].) Probation on counts II and III was revoked prior to the entry of judgment; probation was revoked December 20, 1961; judgment, though imposed thereafter on the same day, was not entered until December 26, 1961.
Defendant's conviction in the case at bar warranted revocation of the order granting probation in the 1953 case. ( People v. Robinson, 43 Cal.2d 143, 146 [ 271 P.2d 872]; People v. Karman, 145 Cal.App.2d 806 [ 303 P.2d 74].) [9] Defendant has filed in this court what he calls "Amendment To Appeal."
From the judgment and the order revoking probation appellant prosecutes this appeal. [1] Since the order revoking probation was made prior to entry of judgment, it is nonappealable and the appeal was properly taken only from the judgment ( People v. Robinson, 43 Cal.2d 143, 145 [ 271 P.2d 872]; People v. Jennings, 129 Cal.App.2d 120, 122 [ 276 P.2d 124]). The sole and only question raised by appellant is whether the trial court abused its discretion in revoking his probation following his conviction of the offense of murder in the second degree in the second case, "when such conviction is contrary to the law and the evidence."
[12] Defendant appeals from judgment of February 1, 1962, and order revoking probation on that date. Conceding in his brief that the order is not appealable (under In re Bine, 47 Cal.2d 814, 818 [ 306 P.2d 445]), appellant properly asserts it to be in the category of an intermediate order reviewable on appeal from the judgment (see also, People v. Robinson, 43 Cal.2d 143, 145 [ 271 P.2d 872]). In this case defendant Clark was charged in eight counts with grand theft and in five with violation of section 26104, subdivision (a) Corporations Code.
The order revoking probation is not appealable and the attempted appeal therefrom must be dismissed. (See Pen. Code, § 1237; People v. Robinson, 43 Cal.2d 143, 145 [ 271 P.2d 872].) Each of the offenses which were alleged to have been committed during the month of March 1961 involved the use of a counter check for the purpose of obtaining cash from an employee of the Ambassador Hotel in Los Angeles.
This clause was added to Penal Code section 1237 in 1951 for the "limited" purpose of "exten[ding] ... a defendant’s right to appeal from a theretofore nonappealable order." ( People v. Robinson (1954) 43 Cal.2d 143, 145, 271 P.2d 872.) We long ago observed that the clause may "not preclude [a] court from recognizing that for purposes other than those of Penal Code section 1237 there is a substantial and ... pertinent difference between an order granting probation and a final judgment as such."
Defendant acknowledges, however, that the circumstance that his subsequent conviction is not yet final would not preclude the trial court from relying upon that conviction to establish a violation of his probation. (See People v. Robinson (1954) 43 Cal.2d 143, 146 [ 271 P.2d 872]; People v. Avery (1986) 179 Cal.App.3d 1198, 1202 [ 225 Cal.Rptr. 319] [reliance upon a prior conviction to establish a probation violation is permissible even though that conviction is pending on appeal]; 3 LaFave Israel, Criminal Procedure, op.cit., supra, § 25.4, at p. 163 [the "great weight of authority" is that reliance upon a conviction to establish a probation violation is permissible even though that conviction is pending on appeal].) Thus, affording defendant a new probation revocation hearing would be a futile act because, on remand, the trial court would have before it defendant's conviction of the offense whose circumstances formed the basis for that court's previous action revoking probation — a conviction that presently, in itself, would support a proper revocation of probation.