Skip to content
Name: People v. Alice
Case #: S144501
Court: CA Supreme Court
District CalSup
Opinion Date: 07/05/2007

The trial court violated Government Code section 68081 by ruling that the prosecutor’s appeal was permitted as an appeal from an unlawful sentence. Alice moved pursuant to Penal Code section 995 to set aside the information charging him with controlled substance offenses. The superior court granted his motion in part, which left him eligible for Proposition 36 probation. Prior to sentencing, the prosecutor appealed from the 995 order as well as the order granting probation. In the appellate court, the prosecution argued it had a right to appeal directly from the 995 order and the erroneous granting of probation under section 1238, subdivision (a)(1) and (5). Alice argued that the appeal was barred under section 1238, subdivision (d) because that section bars not only the direct appeal of an order granting probation but also the appeal of other orders where the appeal is in substance an attack on the probation order. The appellate court held that the prosecution had a right to appeal under section 1238, subdivision (a)(10), because it was an appeal from an unlawful sentence. Alice argued in a petition for rehearing that the appellate court had decided the case based on an issue not briefed by either party; i.e. whether the appeal was from an unlawful sentence. The appellate court denied rehearing, and the California Supreme Court granted review. The Supreme Court held that the Court of Appeal violated Government Code section 68081 by holding that the prosecution’s appeal 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 error was compounded by the denial of the petition for rehearing on that basis. The appeal from the order setting aside one count of the information under Penal Code section 995 was authorized by section 1238, subdivision (a)(1) which permits the prosecution to appeal from an order setting aside any portion of an information. However, no appeal lies from the court’s order granting probation. Therefore, the Court of Appeal’s judgment was reversed to the extent that it directed the superior court on remand to vacate its order placing Alice on drug treatment probation pursuant to Proposition 36.