Supreme Court of California Justia
Docket No. S144501
People v. Alice

Filed 7/5/07

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Appellant,
S144501
v.
Ct.App. 4/2 E038046
JEFFREY SCOTT ALICE,
San Bernardino County
Defendant and Respondent.
Super. Ct. No. FMB006972

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
1


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 section 23152, subdivision (a), and being under the influence of
methamphetamine in violation of Health and Safety Code section 11550,
subdivision (a).
Defendant moved to set aside the information under Penal Code section
995. On April 20, 2005, the superior court granted defendant’s Penal Code
section 995 motion in part, dismissing the driving under the influence charge on
the ground that there was no evidence introduced at the preliminary hearing “that
the amount of amphetamines [in defendant’s system] would have affected his
ability to drive.” Defendant immediately entered pleas of guilty to the remaining
charges so that he could, in the words of defense counsel, “do Proposition 36,”
stating that defendant “is eligible now.” The court accepted defendant’s pleas and
“set this matter over into Proposition 36 on May 13,” ordering defendant to report
immediately to the probation department and “[a]dvise them you are now on
Proposition 36.” The court further ordered defendant to attend three meetings a
week of either Narcotics Anonymous or Alcoholics Anonymous. The court
docket reflects that sentencing was set for May 13, 2005.
On April 29, 2005, prior to sentencing, the People filed a notice of appeal
“from the judgment of the Superior Court . . . at the hearing on the Penal Code
§ 995 motion, April 20, 2005, where the court set aside Count 3 of the Information
. . . and where the court subsequently accepted a guilty plea to the remaining
counts . . . whereby defendant was awarded drug treatment probation under
Proposition 36.” The notice of appeal states that the People “appeal directly from
the § 995 order (Penal Code § 1238[, subd.] (a) (1)), as well as from the erroneous
2
order granting drug treatment probation ‘made after the judgment affecting the
substantial rights of the People.’ (Penal Code § 1238[, subd. ](a)(5) . . . .)”
In its opening brief in the Court of Appeal, the People argued that it had a
right to appeal “directly from the § 995 order” and from “the erroneous order
granting drug treatment probation” under Penal Code section 1238, subdivision
(a)(1) and (5). The People argued that the evidence introduced at the preliminary
hearing “proved [defendant] was driving under the influence, in violation of
Vehicle Code § 23152[, subdivision] (a)” and that, accordingly, the superior court
“erred in granting the § 995 motion” dismissing the charge of driving under the
influence.
In his brief in the Court of Appeal, defendant countered that the appeal was
barred by Penal Code section 1238, subdivision (d) which, according to defendant,
“bars not only the direct appeal of the order granting probation, but also the appeal
of other orders, where the appeal in substance is an attack on the probation order.”
Defendant argued that the People’s “direct appeal of the order granting drug
treatment probation is barred by section 1238. Likewise, [the People]’s appeal of
the order granting the Penal Code section 995 motion as to the driving under the
influence charge is also barred because it is in substance an attack on the order
granting probation.” Defendant further argued that the superior court did not err
in granting, in part, defendant’s motion to set aside the information.
The People did not file a reply brief.
The Court of Appeal, in an unpublished opinion, held that the People had a
right to appeal under Penal Code section 1238, subdivision (a)(10), which
authorizes an appeal from the “imposition of an unlawful sentence” reasoning that
“the trial court’s suspension of the execution of sentence and grant of probation
was an illegal sentence resulting from the erroneous grant of defendant’s section
995 motion.” Ruling that the superior court erred in dismissing the driving under
3
the influence charge, the Court of Appeal reversed the “judgment” and remanded
the matter to the superior court with directions “to vacate its order placing
defendant on drug treatment probation pursuant to Proposition 36. The court is
further directed to vacate its order granting defendant’s section 995 motion to
dismiss [the driving under the influence count] and enter a new order denying the
motion in its entirety.”
Defendant petitioned for rehearing under Government Code section 68081,
arguing that the Court of Appeal had decided the case based upon an issue “that
was not proposed or briefed by any party” – that the appeal was authorized by
Penal Code section 1238, subdivision (a)(10) as an appeal from an unlawful
sentence – without affording defendant an opportunity to address the issue in a
supplemental brief. Defendant stated: “The first time that the issue of whether
section 1238, subdivision (a)(10) authorized this appeal . . . was raised, was by this
court in it’s [sic] tentative opinion issued on December 7, 2005. . . . [¶] Although
[defendant] addressed this issue at oral argument, [defendant] respectfully
disagrees with this court that oral argument is a sufficient replacement for a
thorough, well-written brief of the contested issue.” Attached to the petition for
rehearing was a copy of the notice to the parties from the Court of Appeal that
accompanied the court’s tentative ruling, which included the statement: “No
supplemental briefing will be accepted because counsel may raise those issues
during oral argument. Counsel should refrain from raising new issues not
briefed.”
The Court of Appeal denied rehearing. As noted above, we granted review.
DISCUSSION
Penal Code section 1238 “governs the People’s appeals from orders or
judgments of the superior courts.” (People v. Douglas (1999) 20 Cal.4th 85, 89-
90, fn. omitted.) The statute provides, in pertinent part: “(a) An appeal may be
4
taken by the people from any of the following: [¶] (1) An order setting aside all or
any portion of the indictment, information, or complaint. [¶] . . . [¶] (5) An order
made after judgment, affecting the substantial rights of the people. [¶] . . . [¶] (10)
The imposition of an unlawful sentence, whether or not the court suspends the
execution of the sentence . . . .” (Pen. Code, § 1238, subd. (a).) Subdivision (d),
however, provides that an order granting probation is not appealable: “Nothing
contained in this section shall be construed to authorize an appeal from an order
granting probation. Instead, the people may seek appellate review of any grant of
probation . . . by means of a petition for a writ of mandate or prohibition . . . . The
review of any grant of probation shall include review of any order underlying the
grant of probation.” (Pen. Code, § 1238, subd. (d).)
As noted above, the People relied on subdivisions (a)(1) and (a)(5) of Penal
Code section 1238 in its notice of appeal and in its opening brief to justify its
appeal of the order dismissing the driving under the influence charge and the
“order granting drug treatment probation,” respectively. In response, defendant
argued in his brief that the appeal from both the order of dismissal and the “order
granting drug treatment probation” were barred by Penal Code section 1238,
subdivision (d) as purported appeals from orders granting probation.
The Court of Appeal, however, based its decision upon a different
subdivision of section 1238, ruling that the People could appeal from both the
order of dismissal and from the purported “order granting drug treatment
probation” under Penal Code section 1238, subdivision (a)(10) (hereafter section
1238(a)(10)), which “authorizes an appeal from the ‘imposition of an unlawful
sentence.’ ” The Court of Appeal denied defendant’s petition for rehearing based
upon Government Code section 68081.
5
Government Code section 68081
Government Code section 68081 (hereafter section 68081) provides that
before an appellate court “renders a decision in a proceeding other than a summary
denial of a petition for an extraordinary writ, based upon an issue which was not
proposed or briefed by any party to the proceeding, the court shall afford the
parties an opportunity to present their views on the matter through supplemental
briefing. If the court fails to afford that opportunity, a rehearing shall be ordered
upon timely petition of any party.”
We have applied section 68081 on several occasions, but we never have
examined its meaning in depth. In Adoption of Alexander S. (1988) 44 Cal.3d
857, the Court of Appeal, on its own initiative and without prior notice to the
parties, treated a belated appeal as a petition for writ of habeas corpus and denied
counsel’s request made during oral argument to submit a supplemental brief on the
issue. We noted that the Court of Appeal “appear[ed] to have overlooked
Government Code section 68081” (id. at p. 864) and held that the Court of Appeal
had a duty “to allow supplemental briefing before it renders a decision which was
not proposed or briefed by any party.” (Id. at p. 865.)
In the automatic appeal of appellant’s death sentence in People v. Clark
(1993) 5 Cal.4th 950, we applied the doctrine of inevitable discovery to uphold the
admission into evidence of the results of an analysis of a blood sample withdrawn
from the defendant shortly after his arrest, despite the fact that neither side had
argued that doctrine at trial. (Id. at p. 993, fn. 19.) We observed that
“Government Code 68081 is not implicated by our decision, because the
arguments found in the brief filed by the Attorney General provide a sufficient
basis for our reliance upon the inevitable discovery doctrine.” (Ibid.)
In Public Resources Protection Assn. v. Department of Forestry & Fire
Protection (1994) 7 Cal.4th 111, 117, footnote 6, we noted that the Court of
6
Appeal “compl[ied] with the requirements of Government Code section 68081”
by, on its own motion, requesting letter briefs from the parties addressing whether
emergency rules filed by the Board of Forestry while the appeal was pending
applied to the Timber Harvest Plan at issue.
In In re Manuel G. (1997) 16 Cal.4th 805, 812, we examined the Court of
Appeal’s holding that the minor in that case had not violated Penal Code section
69 by attempting by means of threats to deter a deputy sheriff from performing his
duties because the minor was being detained unlawfully when he threatened the
deputy. The Court of Appeal had raised the issue of the legality of the detention
of the juvenile for the first time during oral argument. (Ibid.) The Attorney
General petitioned for rehearing on the grounds that no party had proposed or
briefed the issue of “whether the minor had been detained—legally or illegally.”
(Ibid.) Our opinion notes that “we granted the Attorney General’s petition for
review and transferred the cause to the Court of Appeal with directions to
reconsider the matter pursuant to Government Code section 68081.” (Id. at p. 813,
fn. omitted.)
The Courts of Appeal also have considered the meaning of section 68081
on a few occasions. In People v. Taylor (1992) 6 Cal.App.4th 1084, 1090,
footnote 5, the majority rejected the dissent’s assertion that section 68081 required
the court to permit supplemental briefing before determining what standard of
review to apply, reasoning that section 68081 “only requires such an opportunity
when the decision is ‘based upon an issue which was not proposed or briefed by
any party . . . .’ [Citation.] The decision here is not based upon the standard of
review; it is based upon the law concerning inherently dangerous felonies.” The
court noted that the question of the proper standard of review “is present in every
case, although the parties often ignore it.” (People v. Taylor, supra, 6 Cal.App.4th
at p. 1090, fn. 5.) The court held: “The purpose behind section 68081 is to
7
prevent decisions based on issues on which the parties have had no opportunity for
input. [Citation.] They certainly had the opportunity here.” (Ibid.)
California Casualty Ins. Co. v. Appellate Department (1996) 46
Cal.App.4th 1145, involved a civil suit that arose from an automobile collision
that occurred when a vehicle that was losing power changed lanes to exit a
freeway. A California Highway Patrol officer testified at trial, over petitioner’s
objection, that, in his opinion, the lane change did not violate the Vehicle Code.
Petitioner appealed from the resulting judgment, arguing that the trial court erred
in admitting the officer’s testimony. The appellate department ruled that the
record reflected only that the officer testified “ ‘[o]ver [petitioner’s] objection’ ”
which failed to satisfy Evidence Code section 353, “which requires that objections
be made on specific grounds in order to preserve a basis for a claim of error on
appeal.” (California Casualty Ins. Co. v. Appellate Department, supra, 46
Cal.App.4th at p. 1149.) The appellate department affirmed the judgment. The
Court of Appeal issued a peremptory writ of mandate ordering the appellate
department to grant rehearing so that “the parties may present their views on the
Evidence Code section 353 issue” (id. at p. 1150) because the appellate
department “decide[d] the case on an issue no one had raised, and about which the
court had failed to inform the parties that it might consider.” (Id. at p. 1149.) The
Court of Appeal held that the appellate department erred both in deciding the case
based upon Evidence Code section 353 without giving the parties an opportunity
to brief the issue, and in denying petitioner’s petition for rehearing. (California
Casualty Ins. Co. v. Appellate Department (1996) 46 Cal.App.4th at p. 1149.)
The Court of Appeal in Westly v. Board of Administration (2003) 105
Cal.App.4th 1095 held that the “plenary authority . . . for . . . administration of the
system” granted to the Board of Administration of the California Public
Employees’ Retirement System (the Board) by article XVI, section 17 of the
8
California Constitution did not permit the Board to exempt its employees from
civil service. In a petition for rehearing, the Board claimed that the Court of
Appeal violated section 68081 by deciding the merits of one of the causes of
action without briefing from the parties. The Court of Appeal rejected the Board’s
claim, ruling that the cause of action in question was “based upon an issue
thoroughly briefed by both parties,” and stating that this thoroughly briefed issue
was “[i]mplicit” in the court’s determination. (Westly v. Board of Administration,
supra, 105 Cal.App.4th at p. 1113, fn. 14.)1
In the present case, we must determine if the Court of Appeal’s holding that
the appeal was authorized by section 1238(a)(10) as an appeal from an
unauthorized sentence was “based upon an issue which was not proposed or
briefed by any party to the proceeding.” (Gov. Code, § 68081.)
Section 68081 does not require that a party actually has briefed an issue; it
requires only that the party had the opportunity to do so. By requiring the parties
to file opening and responding briefs, the Rules of Court automatically give the
parties the opportunity to brief every issue that is raised in the appeal. (Cal. Rules
of Court, rule 8.200(a)(1).) Further, we hold that this also gives the parties the
opportunity to brief any issues that are fairly included within the issues actually
raised. Our court rules adopt this approach — that the opportunity to brief an

1
It appears that the Courts of Appeal tend to err on the side of allowing more
supplemental briefing rather than less, when a question arises as to whether an
issue has been proposed and briefed by the parties. (See, e.g., County of Los
Angeles v. Construction Laborers Trust Funds
(2006) 137 Cal.App.4th 410, 414
[because the parties had not expressly briefed whether the trial court had imposed
an equitable lien, the court “solicited the views of the parties on this issue prior to
oral argument”]; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 831, fn. 18
[noting that court had solicited letter briefs from the parties “[i]n order to assure
compliance” with section 68081].)
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issue includes the opportunity to brief any issues that are fairly included within
that issue — in addressing the related question of when this court is required to
permit the parties before it to submit supplemental briefs. Rule 8.516(b)(1) of the
California Rules of Court provides that, without permitting the parties to submit
supplemental briefs, “[t]he Supreme Court may decide any issues that are raised or
fairly included in the petition [for review] or answer.” But rule 8.516(b)(2) adds
the limitation that this court “may decide an issue that is neither raised nor fairly
included in the petition or answer” only if “the court has given the parties
reasonable notice and opportunity to brief and argue it.”
We addressed the meaning of these rules in Scottsdale Ins. Co. v. MV
Transportation (2005) 36 Cal.4th 643, 649, in which we considered whether a
commercial general liability insurer may obtain reimbursement of expenses it
incurred defending its insured against a third party lawsuit when it is ultimately
determined, as a matter of law, that the policy never afforded any potential for
coverage, and that a duty to defend thus never arose. We held that the insurer
could obtain such reimbursement if it had properly reserved its rights. We further
concluded that the defendant had failed to preserve for review whether the Court
of Appeal had erred in concluding that the insurer did have a duty to defend,
ruling that this question was not “fairly included” in the issue upon which we
granted review. (Id. at p. 654, fn. 2; see also People v. Wright (2006) 40 Cal.4th
81, 99, fn. 10 [applying former Cal. Rules of Court, rule 29(b)(1)].)
In People v. Perez (2005) 35 Cal.4th 1219, 1228, we held that the People
could argue that the defendant properly was convicted of possessing hydriodic
acid precursors with the intent to manufacture methamphetamine in violation of
Health and Safety Code section 11383, subdivision (c)(2) on the theory that he
possessed the chemicals “with the intent that someone else use them to
manufacture methamphetamine,” even though “this precise statutory issue was not
10
part of the People’s petition for review,” because the issue was “fairly embraced in
the petition.” We reasoned that “[t]he issue whether aiding and abetting liability
requires proof that the elements of the predicate offense were committed by
another, as we have determined it does, necessarily includes the issue whether the
court’s error in instructing the jury on aiding and abetting in the absence of such
evidence was harmless. The jury was instructed on the requirements of section
11383[, subdivision] (c)(2). If that section criminalizes possession of precursors
with the intent that someone else manufacture methamphetamine, i.e., if it directly
criminalizes the conduct tried under an aiding and abetting theory, then the court’s
error in instructing the jury on aiding and abetting would be harmless.” (People v.
Perez, supra, 35 Cal.4th at p. 1228.)
In the present case, the People appealed on the theory, and argued in its
briefs, that the dismissal of the driving under the influence charge was appealable
under Penal Code section 1238(a)(1) as an order setting aside a portion of the
information, and the purported order granting probation was appealable under
Penal Code section 1238(a)(5) as an order made after judgment. Defendant
responded that appeal of both orders was barred by section 1238, subdivision (d)
because the appeal of the dismissal of the driving under the influence charge was,
in substance, an attack on a probation order and the appeal from the order granting
probation was prohibited as a direct appeal of a probation order. Neither party,
therefore, discussed whether the appeal was proper as an appeal from an unlawful
sentence pursuant to section 1238(a)(10).
Defendant had no reason to anticipate that the court might address whether
the present appeal was from an unlawful sentence, because this question was not
fairly included within the issues raised by the parties. Unlike the question of the
proper standard of review, which “is present in every case” (People v. Taylor,
supra, 6 Cal.App.4th 1084, 1090, fn. 5), whether the sentence in this case was
11
unlawful is not inherent in the questions of whether there was an unlawful order
setting aside a portion of the information, or whether there was an erroneous order
granting probation. To the contrary, in the present case, defendant could hardly
anticipate that the Court of Appeal would conclude that his sentence was unlawful,
because the record does not reflect that defendant was sentenced at all. Rather,
this case is more similar to California Casualty Ins. Co. v. Appellate Department,
supra, 46 Cal.App.4th 1145, 1149, in which the Court of Appeal determined that
the parties had not been given an opportunity to brief whether there had been a
proper objection to the evidence the petitioner had contended had been
erroneously admitted into evidence.
Because the application of section 1238(a)(10) had not been raised or
briefed by the parties, and was not fairly included within the issues raised, the
Court of Appeal was required by section 68081 to “afford the parties an
opportunity to present their views on the matter through supplemental briefing”
before resolving the case on this basis. Having failed to do so, the court again
erred by denying defendant’s timely petition for rehearing.
The circumstance that the Court of Appeal apparently informed the parties
of its intention to address section 1238(a)(10) by issuing a tentative ruling prior to
oral argument, which permitted the parties to address this issue orally but did not
permit the parties to file supplemental briefs, does not satisfy the requirements of
section 68081. The mandate of the statute is plain; section 68081 requires that the
parties be permitted to address the issue “through supplemental briefing.” Oral
argument is not in every case a substitute for briefing. (See In re Manuel G.,
supra, 16 Cal.4th 805, 812 [ordered Court of Appeal to reconsider pursuant to
section 68081 when issue raised for first time during oral argument]; Adoption of
Alexander S., supra, 44 Cal.3d 857, 864 [Court of Appeal erred in denying request
made during oral argument to submit supplemental briefing].)
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We do not suggest, of course, that the parties have a right under section
68081 to submit supplemental briefs or be granted a rehearing each time an
appellate court relies upon authority or employs a mode of analysis that was not
briefed by the parties. The parties need only have been given an opportunity to
brief the issue decided by the court and the fact that a party does not address an
issue, mode of analysis, or authority that is raised or fairly included within the
issues raised does not implicate the protections of section 68081.
Having concluded that the Court of Appeal violated section 68081, we
could reverse the judgment on that ground and remand the matter to the Court of
Appeal with directions to rehear the case after granting the parties an opportunity
to file supplemental briefs. (See, e.g., In re Manuel G., supra, 16 Cal.4th 805,
813.) The parties, however, have already briefed and argued in this Court whether
the People had a right to appeal pursuant to section 1238(a)(10), and no purpose
would be served by further delaying the final disposition of this case: “The
purpose of Government Code section 68081 having been served, we see no reason
to consume additional time and court resources by insisting on further briefing and
hearing of this matter below.” (Drum v. Superior Court (2006) 139 Cal.App.4th
845, 849.) Accordingly, we turn to whether the People had the right to appeal the
superior court’s ruling.
People’s Right to Appeal
“The prosecution in a criminal case has no right to appeal except as
provided by statute. [Citation.] ‘The Legislature has determined that except under
certain limited circumstances the People shall have no right of appeal in criminal
cases. [Citations.] . . . [¶] The restriction on the People’s right to appeal . . . is a
substantive limitation on review of trial court determinations in criminal trials.’
[Citation.] ‘Appellate review at the request of the People necessarily imposes
13
substantial burdens on an accused, and the extent to which such burdens should be
imposed to review claimed errors involves a delicate balancing of the competing
considerations of preventing harassment of the accused as against correcting
possible errors.’ [Citation.] Courts must respect the limits on review imposed by
the Legislature ‘although the People may thereby suffer a wrong without a
remedy.’ [Citation.]” (People v. Williams (2005) 35 Cal.4th 817, 822-823.)
Beyond question, the People had the right to appeal the superior court’s
order dismissing the driving under the influence charge under Penal Code section
995. (People v. Chapman (1984) 36 Cal.3d 98, 105, fn. 3.) Section 1238(a)(1)
permits the People to appeal “[a]n order setting aside all or any portion of the . . .
information.”
A more complex question is posed by the People’s purported appeal from
the “order granting drug treatment probation.” “Following the enactment of
Proposition 36, the ‘Substance Abuse and Crime Prevention Act of 2000,’ which
took effect July 1, 2001, a defendant who has been convicted of a ‘nonviolent drug
possession offense’ must receive probation and diversion into a drug treatment
program, and may not be sentenced to incarceration as an additional term of
probation.” (People v. Canty (2004) 32 Cal.4th 1266, 1272-1273.) If the
defendant completes such drug treatment and complies with the other conditions
of probation, “the conviction on which the probation was based shall be set aside
and the court shall dismiss the indictment, complaint, or information against the
defendant.” (Pen. Code, § 1210.1, subdivision (e).)
But Proposition 36 further provides: “A defendant is ineligible for
probation and diversion to such a program, however, if he or she has been
‘convicted in the same proceeding of a misdemeanor not related to the use of
drugs or any felony.’ [Citation.]” (People v. Canty, supra, 32 Cal.4th
1266, 1273.) In the present case, in addition to three nonviolent drug possession
14
offenses, defendant also was charged with driving under the influence of drugs,
which is “ ‘a misdemeanor not related to the use of drugs’ ” which made defendant
ineligible for diversion under Proposition 36. (Id. at p. 1285.) Thus, the superior
court’s order dismissing the charge of driving under the influence made defendant
eligible for drug diversion on the remaining charges under Proposition 36.
Once the superior court dismissed the charge of driving under the
influence, defendant immediately pled guilty to the remaining charges, in
anticipation of receiving drug treatment probation under Proposition 36. The
superior court accepted defendant’s pleas and continued the case for sentencing on
May 13, 2005, saying “I am going to set this matter over into Proposition 36 on
May 13.” The court ordered defendant to immediately report to the Probation
Department and “[a]dvise them you are now on Proposition 36.” In continuing the
case for sentencing and ordering defendant to report to the probation department,
the court complied with Penal Code section 1191, which states: “In a felony case,
after a plea, finding, or verdict of guilty, . . . the court shall appoint a time for
pronouncing judgment, . . . during which time the court shall refer the case to the
probation officer for a report if eligible for probation . . . .”
The record reflects, therefore, that defendant pled guilty in anticipation of
being placed on probation pursuant to Proposition 36, and the court accepted his
pleas intending to place defendant on probation under Proposition 36, but the
court did not, at that time, actually issue an order granting probation.
When the People filed its notice of appeal on April 29, 2005, therefore, the
sentencing hearing had not yet taken place and no judgment had been entered.
The superior court’s informal direction to defendant at the time it accepted
defendant’s pleas and continued the case for sentencing to tell the probation
department he was “now on Proposition 36” does not constitute an order granting
15
probation, as the People claim. At the time the People filed its notice of appeal,
therefore, the superior court had not issued an order granting probation.2
If the superior court had placed defendant on probation immediately after
accepting his pleas of guilty, the People would face an even bigger hurdle; the
People cannot appeal an order granting probation. (People v. Douglas, supra, 20
Cal.4th 85, 93.) Section 1238, subdivision (d) states in no uncertain terms that
section 1238 does not authorize “an appeal from an order granting probation.”
Rather, the People are required to seek review “by means of a petition for a writ of
mandate or prohibition which is filed within 60 days after probation is granted.”
(Pen. Code, § 1238, subd. (d).) Accordingly, the People had the right to appeal
the order dismissing the driving under the influence charge under section
1238(a)(1), but it could not appeal the “order granting drug treatment probation”
because no such order appears in the record before us, and an appeal from such an
order granting probation would be barred by section 1238, subdivision (d).3

2
The record before us does not reflect whether defendant was placed on
Proposition 36 probation after the People filed its notice of appeal. The People
made a motion in this court to augment the record on appeal to include minute
orders issued by the superior court after the notice of appeal was filed that
purported to show that defendant was granted probation on May 13, 2005,
successfully completed a drug treatment program a year later, and the case was
dismissed pursuant to Proposition 36 on May 11, 2006. Defendant objected on the
ground, among others, that these orders had not been before the Court of Appeal.
We denied the motion to augment the record.
3
Defendant cites People v. Robles (1997) 52 Cal.App.4th 157 for the
proposition that the appeal from the order dismissing the driving under the
influence charge is barred by section 1238, subdivision (d), because the order
dismissing the driving under the influence charge “empowered the trial court to
grant [defendant] probation.” But we disapproved the decision in Robles on this
point in People v. Douglas, supra, 20 Cal.4th 85, 95.
16


We explained in Douglas why the Legislature required the People to seek
review of an order granting probation by means of a writ rather than by appeal:
“The patent purpose of [section 1238, subdivision (d)] is to provide a means for
review of assertedly illegitimate probation orders while avoiding the unfairness
that could result to a defendant who, while the People’s appeal from his or her
probation grant is prepared, briefed, heard and decided, might serve all or a
substantial part of the probationary period, only to be resentenced to a full state
prison term if the People’s appeal is ultimately successful. The statute limits
review to writ petitions because such procedures are assumed to operate more
quickly than an appeal. [Citations.]” (People v. Douglas, supra, 20 Cal.4th 85,
92-93, fn. omitted.) In Douglas, we quoted a portion of the legislative history of
section 1238, subdivision (d) in which a staff analysis of a proposed amendment to
the statute explained: “ ‘Appeals generally take at least a year to decide. Is it fair
to a defendant to put him or her on probation for a year and then imprison him or
her a year or two later if an appeal is lo[s]t, even if he or she has been an
exemplary probationer?’ ” (People v. Douglas, supra, 20 Cal.4th at p. 93, fn. 8.)
To serve this purpose, section 1238, subdivision (d) prohibits not only
appeals from orders granting probation, but also “prohibits appeals that, in
substance, attack a probation order, even if the order explicitly appealed from may
be characterized as falling within one of the authorizing provisions of subdivision
(a). Thus, if the People seek, in substance, reversal of the probation order, the
appeal is barred by subdivision (d) however they may attempt to label the order
appealed from. [Citation.]” (People v. Douglas, supra, 20 Cal.4th 85, 93.)
In the present case, therefore, the People’s appeal is effective only to the
extent it seeks review of the order dismissing the charge of driving under the
influence. The People’s attempt also to appeal from “the erroneous order granting
drug treatment probation” is ineffective both because the record before us does not
17
reflect such an order granting probation and because such an appeal would be
barred by Penal Code section 1238, subdivision (d).
The Court of Appeal concluded that the appeal is authorized by section
1238(a)(10), which permits the People to appeal from “[t]he imposition of an
unlawful sentence.” But this approach fails because nothing in the record before
us indicates that defendant was sentenced. The trial court continued the case to
May 13, 2005 for sentencing, but the People filed its notice of appeal prior to that
date, on April 29, 2005.
The Court of Appeal erred, therefore, in directing the superior court “to
vacate its order placing defendant on drug treatment probation pursuant to
Proposition 36.” There is no basis for doing so. The People were permitted to
appeal only the order dismissing the driving under the influence charge.
Proceedings on the remaining charges could continue while this appeal was
pending. (People v. Franc(1990) 218 Cal.App.3d 588, 592 [The People may
appeal from “a dismissal of some parts of an indictment while proceeding to trial
on what remains. The trial court retains jurisdiction to try those counts not
affected by the appeal.”].)
We are sympathetic to the People’s futile attempt to prevent the superior
court’s erroneous ruling dismissing the driving under the influence charge from
making defendant eligible for Proposition 36 probation, but the People failed to
take the proper steps to prevent this from happening. The People could have
asked the superior court to stay proceedings on the remaining charges while it
appealed the dismissal of the driving under the influence charge. If the superior
court refused to stay proceedings and placed defendant on drug diversion
probation as it indicated it intended to do, the People could have sought review of
the order granting probation by means of a petition for writ of mandate or
prohibition under Penal Code section 1238, subdivision (d). Although both the
18
superior court’s decision whether to grant a stay of proceedings and the Court of
Appeal’s decision whether to grant a petition for writ relief lie within the sound
discretion of those courts, we would expect that those courts would have looked
favorably upon such requests in order to permit the People to obtain effective
review of an erroneous order that made defendant eligible for Proposition 36
probation.
In the present case, so far as the record indicates, the People neither
obtained a stay of the remaining charges, nor sought writ review of any
subsequent order granting defendant probation under Proposition 36. The People
only succeeded in appealing and obtaining a reversal of the order dismissing the
driving under the influence charge. Accordingly, the proper disposition is to
reverse the order dismissing the driving under the influence charge and remand the
matter for further proceedings on that count.
DISPOSITION
The judgment of the Court of Appeal is reversed to the extent that it directs
the superior court on remand “to vacate its order placing defendant on drug
treatment probation pursuant to Proposition 36,” and otherwise is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
19

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Alice
__________________________________________________________________________________

Unpublished Opinion

XXX NP opn. Filed 5/11/06 – 4th Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S144501
Date Filed: July 5, 2007
__________________________________________________________________________________

Court:

Superior
County: San Bernardino
Judge: Bryan F. Foster

__________________________________________________________________________________

Attorneys for Appellant:

Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Brent J. Schultze,
Deputy District Attorney, for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Denise M. Rudasill, under appointment by the Supreme Court, for Defendant and Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Brent J. Schultze
Deputy District Attorney
412 W. Hospitality Lane, Suite 100
San Bernardino, CA 92415-0042
(909) 891-3302

Denise M. Rudasill
840 17th Street
San Diego, CA 92101
(619) 339-2084


Opinion Information
Date:Docket Number:
Thu, 07/05/2007S144501

Parties
1Alice, Jeffrey Scott (Defendant and Respondent)
76924 TOMAHAWK RUN
INDIAN WELLS, CA 92210

Represented by Denise Marie Rudasill
Attorney at Law
840 Seventeenth Street, Suite 212
San Diego, CA

2The People (Plaintiff and Appellant)
Represented by Mark A. Vos
Office of the District Attorney
412 W. Hospitality Lane, Suite 100
San Bernardino, CA

3The People (Plaintiff and Appellant)
Represented by Brent James Schultze
Office of the District Attorney - Appellate Services Unit
412 W. Hospitality Lane, Suite 100
San Bernardino, CA


Disposition
Jul 5 2007Opinion: Affirmed in part/reversed in part

Dockets
Jun 20 2006Petition for review filed
  Jeffrey Scott Alice, defendant and respondent Denise M. Rudasill, counsel
Jun 21 2006Record requested
  via email
Jun 23 2006Received Court of Appeal record
  one doghouse
Aug 11 2006Time extended to grant or deny review
  to and including September 18, 2006, or the date upon which review is either granted or denied.
Aug 23 2006Petition for review granted; issues limited (criminal case)
  Petition for review GRANTED. The issues to be briefed and argued are limited to the following: (1) Did the People have the right to appeal under Penal Code section 1238, subdivision (a)(1) or (a)(10), from the trial court's order dismissing a charge when the dismissal made the defendant eligible for probation and the People are prohibited under Penal Code section 1238, subdivision (d), from appealing a grant of probation? (2) Did the Court of Appeal err under Government Code section 68081 in not permitting briefing on the People's right to appeal under Penal Code section 1238, subdivision (a)(10), when that basis for an appeal was first mentioned in the court's tentative opinion? Corrigan, J., was absent and did not participate. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Sep 5 2006Filed:
  by San Bernardino Co. Dist. Atty Office: letter notifying court of names of counsel to represent the People in this case.
Sep 6 2006Counsel appointment order filed
  Denise Rudasill is hereby appointed to represent respondent on the appeal now pending in this court. Respondent's brief on the merits must be served and filed on or before thirty (30) days from the date of this order.
Sep 20 2006Motion filed (non-AA)
  by counsel for aplt. (People) Motion to Augment Record on Appeal and Exhibits
Oct 2 2006Request for extension of time filed
  by counsel for respondent requesting a 30-day extension to and inlcuding November 6, 2006 to file respondent's opening brief on the merits. Filed by Denise M. Rudasill, counsel
Oct 5 2006Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's opening brief on the merits is hereby extended to and including November 6, 2006.
Oct 19 2006Received:
  from counsel for resp. Opposition to Motion to Augment.
Oct 23 2006Opposition filed
  counsel for resp. to aplt's Motion to Augment *** w/permission***
Nov 2 2006Request for extension of time filed
  Counsel for respondent requests extension of time to 11-18-2006 to file the opening brief on the merits.
Nov 8 2006Extension of time granted
  On application of respondent and good cause appearing it is ordered that the time to serve and file the opening brief on the merits is extended to and including November 18, 2006.
Nov 15 2006Motion denied
 
Nov 17 2006Opening brief on the merits filed
  counsel for respondent
Dec 15 2006Answer brief on the merits filed
  counsel for (People) appellant
Jan 4 2007Reply brief filed (case fully briefed)
  counsel respondent (J. Alice)
Mar 28 2007Compensation awarded counsel
  Atty Rudasill
Apr 3 2007Case ordered on calendar
  to be argued Wednesday, May 2, 2007, at 1:30 p.m., in San Francisco
May 2 2007Cause argued and submitted
 
Jul 3 2007Notice of forthcoming opinion posted
 
Jul 5 2007Opinion filed: Affirmed in part, reversed in part
  Affirmed in part, reversed in part, remanded with directions. OPINION BY: Moreno, J --- joined by: George, C.J., Kennard, Baxter, Werdegar, Chin, Corrigan, JJ.
Aug 7 2007Remittitur issued (criminal case)
 
Aug 13 2007Received:
  Receipt for remittitur from 4 DCA DIv. 2.
Sep 12 2007Compensation awarded counsel
 

Briefs
Nov 17 2006Opening brief on the merits filed
 
Dec 15 2006Answer brief on the merits filed
 
Jan 4 2007Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website