People v. La Fave

Defendant was charged with several counts of violation of Health and Safety Code section 11352, subdivision (a) (sale of cocaine, a controlled substance), the information alleging that the separate sales occurred during a two-week period. Following receipt of a preplea probation report finding the defendant suitable for probation (see Code Civ. Proc., § 131.3) a plea of guilty was entered on three counts; the remaining charges were dismissed on the People’s motion. After consideration of a presentence report (see Pen. Code, § 1203) 1 in which the probation department recommended a state prison sentence with execu *828 tion suspended for four years subject to a number of conditions of probation including confinement in the county jail and payment of a fine, the trial court suspended imposition of judgment and granted a term of supervised probation subject to the recommended conditions but excluding confinement or levy of a fine. The People now appeal from the order of probation.

People’s Right of Appeal

Relying chiefly on People v. Warner (1978) 20 Cal.3d 678 [ 143 Cal.Rptr. 885 , 574 P.2d 1237 ], the People claim the order granting probation is reviewable on appeal…

I concur—but with reluctance.

As indicated by Presiding Justice Racanelli, by a quirk of our procedural law, the People may appeal from an order granting probation after imposition of judgment and sentence, but may not appeal from such an order when imposition of judgment and sentence is suspended.

The result is that a trial judge who abuses his discretion in granting probation may capriciously allow to, or withhold from, the People an appeal from the order, depending simply upon the manner in which he makes it.

This exaltation of form over substance (see Civ. Code, § 3528) does violence to the needs of a fair and rational system of criminal justice. The courts are powerless to correct it, but the Legislature is not.

Defendant was charged with several counts of violation of Health and Safety Code section 11352, subdivision (a) (sale of cocaine, a controlled substance), the information alleging that the separate sales occurred during a two-week period. Following receipt of a preplea probation report finding the defendant suitable for probation (see Code Civ. Proc., § 131.3) a plea of guilty was entered on three counts; the remaining charges were dismissed on the People's motion. After consideration of a presentence report (see Pen. Code, § 1203) [1] in which the probation department recommended a state prison sentence with execution suspended for four years subject to a number of conditions of probation including confinement in the county jail and payment of a fine, the trial court suspended imposition of judgment and granted a term of supervised probation subject to the recommended conditions but excluding confinement or levy of a fine. The People now appeal from the order of probation. [2]

Relying chiefly on People v. Warner (1978) 20 Cal.3d 678 [ 143 Cal. Rptr. 885 , 574 P.2d 1237 ], the People claim the order granting probation is reviewable on appeal either as…