People v. Turner

39 Cal. App. 3d 682, 114 Cal. Rptr. 372, 1974 Cal. App. LEXIS 1001

• Court: California Court of Appeal
• Decided: June 5, 1974
• Docket: Crim. No. 12427
• Status: Published

Opinions

Opinion

SIMS, J.

Defendant was convicted by jury verdicts of two counts of rape by force or violence (Pen. Code, § 261, subd. 2) with prior convictions for forgery (Pen. Code, § 470) and receiving stolen property (Pen. Code, § 496). He has appealed from the judgment sentencing him to concurrent sentences in state prison. In a brief filed while these proceedings were pending he principally complains of the alleged misconduct of the prosecutor. A hearing was granted on his motion for bail pending appeal in order to consider the effect of recent statements of the state Supreme Court which indicated that the right to bail on appeal might be commensurate with the right to bail before conviction. An examination of the pertinent precedents indicates that such is not the case; that admission to bail on appeal is a matter of discretion; and that there was no abuse of discretion in denying bail to the defendant in this case. The motion must be denied.

The California Constitution as adopted in 1849 provided: “All persons shall be bailable by sufficient sureties unless for capital offenses, when the proof is evident, or the presumption great.” (Art. I, § 7.) In January 1871, the state Supreme Court ruled, “We think, however, that the clause of the Constitution cited is only designed to alter this rule of the common law as to certain criminal cases before conviction; and that the matter of bail after conviction is still left discretionary, as it was at common law, with the modifications wrought by the statute of this State. We are of [the] opinion that the Constitution, in declaring bail to be a matter of right, contemplated only those cases in which the guilt of the party had not been already judicially ascertained; cases in which the prisoner as yet stood upon his plea of not guilty, supported with all the presumptions of innocence with which the law delights to surround him. But when his trial has been had, and his plea proven false, the law will not stultify itself by presuming him other than that it has itself adjudged him to be.” (Ex parte Voll (1871) 41 Cal. 29, 32.)

On May 7, 1879, the People of the State of California incorporated the same language in section 6 of article I of our present Constitution. In Ex parte Brown (1885) 68 Cal. 176 [8 P. 829], the court pointed out that the same rule applied to the reenacted language—“. . . the guaranty of bail as a matter of right extends only to those cases where the party has not already been convicted,” citing Ex parte Voll, supra (68 Cal. at p. 177).

The rule of the earlier cases was reiterated in In re Scaggs (1956) 47 Cal.2d 416 [303 P.2d 1009], where the court stated: “Before conviction, a defendant charged with a felony not punishable with death is entitled to be admitted to bail ‘ás a matter of right,’ but, after conviction, his admission to bail is a ‘matter of discretion,’ unless only a fine is imposed [citation]. This important difference in the status of a defendant before and after conviction is one of long standing in both the statutes and judicial decisions of California and arises from the fact that, upon conviction, the defendant loses the benefit of the presumption of innocence and is presumed to be guilty [citing Criminal Practice Act of 1851, Ex parte Voll, supra, and Ex parte Brown].” (47 Cal.2d at p. 418.)

In In re Underwood (1973) 9 Cal.3d 345 [107 Cal.Rptr. 401, 508 P.2d 721], the trial court denied bail to a defendant charged with attempted murder and related offenses arising out of an attempted bombing, on the theory that his release would jeopardize the safety of the community (9 Cal.3d at p. 347). The court held that there was no “public safety” exception to the right to bail which is conferred by section 6 of article I of the state Constitution. In so doing the chief justice did state, “The purpose of bail is to assure the defendant’s attendance in court when his presence is required, whether before or after conviction. (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898 . . . ; In re Newbern (1961) 55 Cal.2d 500 . . . ; see also In re Brumback (1956) 46 Cal.2d 810 . . .) Bail is not a means for punishing defendants (Sawyer v. Barbour (1956) 142 Cal.App.2d 827 . . .) nor for protecting the public safety. Such objectives are provided for otherwise.” (Id., p. 348, italics added.) The first case cited dealt with the proper procedure for declaring a forfeiture of bail posted prior to conviction (see 5 Cal.3d at p. 907). In re Newbern dealt with both bail on appeal and bail on pending charges, but the appeal involved was from the conviction of a misdemeanor (55 Cal.2d at p. 503; and see Pen. Code, § 1272, subd. 2). In re Brumback covers the situation governing in the case of bail pending appeal from a felony conviction (46 Cal.2d at p. 813. See also Pen. Code, § 1273, first subd. Third). Sawyer v. Barbour deals with a penalty assessment in addition to bail posted prior to conviction in respect of traffic offenses and is not helpful on the issue here (see 142 Cal.App.2d at pp. 833-834.) In re Underwood should not be interpreted as conferring a constitutional right to bail on appeal. It merely points out that in granting bail, whether as a matter of right or as a matter of discretion, the punishment of the defendant is not a criteria, and it suggests that other means should be taken for protecting the public safety.

This conclusion is strengthened by examination of other pronouncements of the court. Tobriner, J., in dissenting in In re Tucker (1971) 5 Cal.3d 171 [95 Cal.Rptr. 761, 486 P.2d 657], stated, “Since the parolee has already been convicted of a felony and sentenced to prison, he has lost the presumption of innocence and the right to bail. (See In re Scaggs (1956) 47 Cal.2d 416, 418 . . .)” (5 Cal.3d at p. 203.) In re Law (1973) 10 Cal.3d 21 [109 Cal.Rptr. 573, 513 P.2d 621], produced a unanimous opinion authored by the chief justice in which he stated, “Article I, section 6, of the California Constitution, upon which petitioner [a parolee who claimed the right to bail while in a parole hold status] particularly relies, states that ‘All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption [is] great.’ This provision was intended to abrogate the common law rule that bail was a matter of judicial discretion by conferring an absolute right to bail except in a narrow class of cases. (See In re Underwood (1973) 9 Cal.3d 345 ...; Ex parte Voll (1871) 41 Cal. 29, 32.) However, it is clear on analysis of both the Constitution and statutory provisions which implement it that the right to bail, while absolute, pertains only to persons incarcerated on a charge of the commission of a criminal offense. (See Aguilera v. California Dept. of Corrections (1966) 247 Cal.App.2d 150, 153 . . .)

“The constitutional provision, although it first states that ‘All persons’ shall be bailable, then makes an exception ‘for capital offenses when the proof is evident or the presumption [is] great.’ The phrase ‘the proof is evident or the presumption [is] great.’ can be relevant only as a limitation on the bailable nature of a charged but unproven capital offense; otherwise the proof and presumption would have been conclusively and finally established. The provision thus purports to deal not with all persons in an unlimited sense but rather with all persons charged with criminal offenses as only then does the whole of the language have relevancy. We have heretofore stated that the purpose served by the provision was ‘fixing bail before trial: (People v. Anderson (1972) 6 Cal.3d 628, 657, fn. 45 . . .)” (10 Cal.3d at pp. 25-26, italics added.)

The reiteration of the quote from In re Underwood, supra, in In re Boyle (1974) 11 Cal.3d 165 [113 Cal.Rptr. 99, 520 P.2d 723], a case dealing with the right to bail prior to conviction, does not lend further strength to the conclusion that bail is a matter of right after conviction. It remains, as provided in the statute, “a matter of discretion.” (Pen. Code, § 1272, subd. 3.)

Application of the rules for the exercise of that discretion as promulgated in In re Scaggs, supra, and In re Brumback, to the record in this case fails to reveal any grounds for relief. In Scaggs the court said: “Although, as we have said, the primary purpose of bail is to assure the presence of the defendant in court when required (see In re Brumback, 46 Cal.2d 810, 813. . .), it does not, of course, follow that other matters may not be considered in determining whether a convicted defendant should be retained in custody pending his appeal. Obviously, one important consideration is whether there is any danger that, if released, he would continue to commit crime.” (47 Cal.2d at p. 419.) In re Underwood, as quoted above, (9 Cal.3d at p. 348), may throw some doubt on the use the criterion set forth in the last sentence, but it is unnecessary to so determine in this case.

California Rules of Court, rule 32(b) provides as follows: “An application to the reviewing court for bail or to reduce bail on an appeal pending therein shall be made on such notice to the district attorney and the Attorney General as the court may determine, and shall include a showing that proper application for bail or a reduction of bail was made to the superior court and that such court unjustifiably denied the application.”

In order to determine whether the trial court unjustifiably denied the petitioner’s application for bail we have examined the record in connection with such application. It consists of a short statement by the petitioner’s attorney.¹ On that record we cannot say that the court abused its discretion in denying bail. Petitioner’s application for bail before this court is accompanied by his attorney’s declaration which, insofar as the petitioner’s background is concerned, would appear to be in part hearsay. Since there is no showing that these matters were presented to the trial court in any form it is unnecessary to review their sufficiency. The application for bail is denied.

Elkington, J., concurred.

1 “We would ask for reasonable bail pending appeal. I would state that Mr. Turner when he was out of custody has made numerous court appearances always on time. Never, to my knowledge, had a failure to appear. He remained throughout the trial proceedings. He was always present. It would be my impression from that knowledge that Mr. Turner would be present and would remain himself, in the area and available for any further processes of the court pending appeal. And I would ask the Court to grant reasonable bail pending that appeal.”