Opinion
Page __
__ Cal.App.2d __ 248 P.2d 98 PEOPLE v. HOWERTON. Cr. 4837. California Court of Appeals, Second District, First Division Oct. 3, 1952.Hearing Granted Oct. 30, 1952.
[248 P.2d 99] William W. Larsen, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.
WHITE, Presiding Justice.
Motion to dismiss appeal. On January 10, 1952, appellant was found guilty of a violation of section 288 of the Penal Code. On the same day the court invoked the provisions of the Welfare and Institutions Code relating to sexual psychopaths, secs. 5501, 5503, 5503.5, 5504. After advising appellant that he was 'charged by the court with being a sexual psychopath,' advising him of his rights under section 5503, supra, the court referred the matter to the probation officer, appointed two psychiatrists, secs. 5503.5, 5504, supra, and continued the matter to February 6, 1952, for further proceedings.
On the last named date appellant's application for probation was denied; judgment was pronounced and he was sentenced to the state prison for the term prescribed by law. Execution of the sentence was thereupon suspended and proceedings on the issue of sexual psychopathy commenced. Thereafter, on the same day, the court found the appellant to be a sexual psychopath and committed him to Norwalk State Hospital for a 90-day observation period, Welf. & Inst.Code, sec. 5512.
Appellant made no motion for a new trial and no notice of appeal from the judgment was taken within ten days after it was made and entered on February 6, 1952.
On April 9, 1952, appellant again appeared before the court with his counsel, at which time the court stated: 'This matter * * * is here as a result of the report of the Superintendent and Medical Director of the State Hospital under a verified statement that they have examined the defendant under the provisions of the Welfare and Institutions Code and diagnosed his case; that while he is a sexual psychopath and is a menace to the health and safety of others and falls within the provisions of Section 5500 of the Welfare and Institutions Code that he could not benefit from treatment at the Norwalk State Hospital; that he would benefit just as much from treatment at a penal institution to which he otherwise would go.'
Thereupon, the court inquired as to whether there was 'any legal cause why judgment should not now be pronounced.' After appellant's counsel answered in the negative the court proceeded as follows: 'Sentence has heretofore been pronounced and continued to this date. The defendant was sentenced to the State Prison for the term prescribed by law, and the sentence was ordered suspended pending these proceedings. In view of the report of the Superintendent and Medical Director of the Norwalk State Hospital the court finds that the defendant is a sexual psychopath within the meaning of the Welfare and Institutions Code, and orders the sentence heretofore imposed be placed in full force and effect. The defendant is remanded to the custody of the Sheriff of Los Angeles County to be by him delivered to the Director of Corrections at the California Institution for Men at Chino, California, * * *.'
On April 14, 1952, appellant filed notice of appeal from 'the judgment of the court made and entered on the 9th day of April, 1952.'
Respondent insists that the appeal taken from the 'judgment * * * made and entered on the 9th day of April, 1952' is not an appealable order. It is urged that the proceedings had upon the last mentioned day amounted only to an order directing that the judgment pronounced on February 6, 1952, and suspended be put into full force and effect following the court's finding, pursuant to a report from [248 P.2d 100] the medical superintendent of Norwalk State Hospital that although appellant was a sexual psychopath, he would not benefit from treatment at the state hospital.
Section 1237 of the Penal Code provides that, 'An appeal may be taken by the defendant:
'1. From a final judgment of conviction; an order granting probation shall be deemed to be a final judgment within the meaning of this section;
'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.'
With reference to the time within which an appeal may be taken, Rule 31 of Rules on Appeal provides that, 'In the cases provided by law, an appeal may be taken by filing a written notice of appeal with the clerk of the superior court within 10 days after the rendition of the judgment or the making of the order, except that an appeal from an order denying a new trial shall not be taken until after the granting of probation or the rendition of judgment, and except that the 10-day period for appealing from an order denying a new trial shall be extended until 10 days after the making of an order granting probation or the rendition of judgment, whichever shall occur sooner.'
In the case of Metropolitan Water Dist. v. Adams, 19 Cal.2d 463, 468, 122 P.2d 257, 260, it is said: 'A judgment is defined by the code as 'the final determination of the rights of the parties in an action or proceeding.' Sec. 577, Code Civ.Proc.; 14 Cal.Jur. 852. It is 'the law's last word in a judicial controversy.' 30 Am.Jur. 821.'
In view of the provisions of the Welfare and Institutions Code, secs. 5501, 5512 can it be said that the judgment pronounced and suspended on February 6, 1952, was 'the law's last word' in the judicial proceeding? We think not. Subdivision (c) of section 5501 of the Welfare and Institutions Code provides that in a case such as this, upon convinction, 'the court shall adjourn the proceeding or suspend the sentence, as the case may be,' while section 5512, supra, provides that 'If the superintendent of the hospital or person in charge of the county facility reports to the court that the person is not a sexual psychopath or that he is a sexual psychopath but will not benefit by care and treatment in a state hospital, the person shall be returned to the court for further disposition of his case. The court shall then cause the person to be returned to the court in which the criminal charge was tried to await further action with reference to such criminal charge.' (Emphasis added.) In view of these and other provisions of the Welfare and Institutions Code to which we have adverted, we are persuaded that the final judgment under the circumstances of this case was rendered on April 9, 1952, when the rights of the parties to the litigation were finally determined. Were we to hold otherwise, and had a timely appeal been taken following the proceedings on February 6, 1952, we would be met with the long established rule that a proper notice of appeal vests jurisdiction of the case in the reviewing court to which it is appealed and divests the trial court of jurisdiction pending the appeal, Associated Lumber & Box Co. v. Superior Court, 79 Cal.App.2d 577, 581, 180 P.2d 389.
Construing the provisions of the Penal Code and the Welfare and Institutions Code together and according to the fair import of their terms, with a view to effect their objects and to promote justice, Pen.Code, sec. 4, we are satisfied that in the case at bar, 'the law's last word' in this judicial controversy must be held to be the pronouncement of judgment made on April 9, 1952, following the 'suspension' of proceedings on February 6, 1952, in compliance with the mandatory requirements of the provisions of the Welfare and Institutions Code. An appeal therefrom, having been taken within ten days thereafter, was timely.
The motion to dismiss the appeal is denied.
DORAN and DRAPEAU, JJ., concur.