(a)An appeal may be taken by the people from any of the following:
(1)An order setting aside all or any portion of the indictment, information, or complaint.
(2)An order sustaining a demurrer to all or any portion of the indictment, accusation, or information.
(3)An order granting a new trial.
(4)An order arresting judgment.
(5)An order made after judgment, affecting the substantial rights of the people.
(6)An order modifying the verdict or finding by reducing the degree of the offense or the punishment imposed or modifying the offense to a lesser offense.
(7)An order dismissing a case prior to trial made upon motion of the court pursuant to Section 1385 whenever such order is based upon an order granting the defendant’s motion to return or suppress property or evidence made at a special hearing as provided in this code.
(8)An order or judgment dismissing or otherwise terminating all or any portion of the action including such an order or judgment after a verdict or finding of guilty or an order or judgment entered before the defendant has been placed in jeopardy or where the defendant has waived jeopardy.
(9)An order denying the motion of the people to reinstate the complaint or a portion thereof pursuant to Section 871.5.
(10)The imposition of an unlawful sentence, whether or not the court suspends the execution of the sentence, except that portion of a sentence imposing a prison term which is based upon a court’s choice that a term of imprisonment (A) be the upper, middle, or lower term, unless the term selected is not set forth in an applicable statute, or (B) be consecutive or concurrent to another term of imprisonment, unless an applicable statute requires that the term be consecutive. As used in this paragraph, “unlawful sentence” means the imposition of a sentence not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise modifies the effect of an enhancement or prior conviction.
(11)An order recusing the district attorney pursuant to Section 1424.
(b)If, pursuant to paragraph (8) of subdivision (a), the people prosecute an appeal to decision, or any review of such decision, it shall be binding upon them and they shall be prohibited from refiling the case which was appealed.
(c)When an appeal is taken pursuant to paragraph (7) of subdivision (a), the court may review the order granting the defendant’s motion to return or suppress property or evidence made at a special hearing as provided in this code.
(d)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, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted. The review of any grant of probation shall include review of any order underlying the grant of probation.
Notes of Decisions
Cited in
235
cases (
7 in the last 5 years), 1884–2026 · leading case:
People v. Alice, 161 P.3d 163 (Cal. 2007).
People v. Alice, 161 P.3d 163 (Cal. 2007).
· cites it 10× “” 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 order granting drug treatment probation ‘made after the judgment affecting the substantial rights of the People.”
People v. Statum, 50 P.3d 355 (Cal. 2002).
· cites it 10× “modifying the offense to a lesser offense" (Pen.Code, § 1238, subd. (a)(6)) and thus an order from which the People may appeal.”
The People v. Super. Ct., 215 Cal. App. 4th 1279 (Cal. Ct. App. 2013).
· cites it 2× “(Pen. Code, § 1238.) There are at least two subdivisions of that statute, however, which allow for the instant challenge.”
People v. Patterson, 778 P.2d 549 (Cal. 1989).
· cites it 4× “) (Pen. Code, § 1238, subd. (a)(8).) [3] The Court of Appeal affirmed the dismissal of the murder count.”
State v. Medrano, 67 S.W.3d 892 (Tex. Crim. App. 2002).
· cites it 2× “3 (state may appeal order which grants motion to suppress seized evidence, confessions, or allows evidence of victim's prior sexual conduct); Cal. Pen.Code § 1238 (state may appeal order suppressing property or evidence if case is dismissed); Colo.”
People v. Mitchell, 26 P.3d 1040 (Cal. 2001).
“(Pen. Code, § 1238, subd. (a)(5).)” We reject the implicit major premise of the Court of Appeal’s analysis— that an appellate court may not correct clerical error the Attorney General identifies unless the People have a right to appeal from that error.”
California v. Rooney, 483 U.S. 307 (1987).
· cites it 3× “See Cal. Penal Code Ann. §§ 1238, 1538.5 (West 1982).”
People v. Leyba, 629 P.2d 961 (Cal. 1981).
· cites it 2× “That opinion, with appropriate deletions and additions, [] is as follows: The People appeal (Pen. Code, § 1238, subd. (a) (7)) from an order of the Superior Court of Los Angeles County dismissing an information (Pen.”
People v. Santamaria, 884 P.2d 81 (Cal. 1994).
· cites it 2× “Benson testified that the cause of death was a stab wound to the hepatic artery complicated by the other factors...." When the prosecution later stated that it was unable to proceed in light of the ruling, the court dismissed the case pursuant to Penal Code section 1385.”
People v. Holly, 62 Cal. App. 3d 797 (Cal. Ct. App. 1976).
· cites it 4× “In my view the decision of the trial court that section 654 applies and the majority opinion affirming that decision run counter to both the "legalities" of the case and the "realities" of the disastrously mushrooming drug scene which California citizens increasingly demand that…”
People v. Do Kyung K., 2001 Cal. Daily Op. Serv. 3082 (Cal. Ct. App. 2001).
· cites it 3× “Instead, the people may seek appellate review of any grant of *590 probation, whether or not the court imposes sentence, by means of a petition for a writ of mandate or prohibition which is filed within 60 days after probation is granted.”
— Cal. Penal Code § 1238(a)(6) — 1 case
— Cal. Penal Code § 1238(a)(8) — 1 case
— Cal. Penal Code § 1238(b) — 1 case
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