Alice

For the reasons that follow, we hold that the Court of Appeal violated Government Code section 68081 by holding that the People’s appeal in this case was authorized by Penal Code section 1238, subdivision (a)(10) as an appeal from an unlawful sentence, because the parties had neither proposed nor addressed this issue in their briefs. The Court of Appeal compounded this error by denying defendant’s petition for rehearing on that basis. We further hold that the appeal in this case from the order setting aside one count of the information under Penal Code section 995 was authorized by Penal Code section 1238, subdivision (a)(1), which permits the People to appeal from an order setting aside any portion of an information, but no appeal lies from the court’s purported order granting probation.

Facts

On January 10, 2005, defendant Jeffrey Scott Alice was charged by information with transporting the controlled substance methamphetamine in violation of Health and Safety Code section 11379, subdivision (a), possessing methamphetamine in violation of Health and Safety Code section 11377, subdivision (a), driving under the influence of alcohol or drugs in violation of Vehicle Code…