Bailey

A jury convicted Thomas Shawn Bailey of second degree robbery (Pen. Code, § 211) and found true a firearm use enhancement (§ 12022.5, subd. (a)(1)). The jury’s finding rendered defendant statutorily ineligible for probation. (§ 1203.06, subd. (a)(1)(B).) Nevertheless, the trial court granted probation. The People appealed, contending the trial court acted in excess of its sentencing authority. In the alternative, the People request we construe the opening brief as a petition for writ of mandate.

We hold that the 1986 enactment of section 1238, subdivision (d) eliminated the People’s right to appeal from orders granting probation and limited appellate review of such orders to petitions for writ of mandate or prohibition filed within 60 days of the grant of probation. Accordingly, we dismiss the People’s appeal and conclude the alternative writ petition was untimely.

Facts

Bailey, armed with a gun, robbed a 15-year-old boy of his video camera. Prior to trial, the deputy district attorney offered to accept probation with one year in the county jail if Bailey pleaded guilty. Bailey indicated a willingness to plead guilty under these conditions. However, the deputy district…