277 P. 895 | Cal. Ct. App. | 1929
This is an application for stay of execution of judgment by which the defendant in the action in the lower court was sentenced to the term of imprisonment prescribed by law for the commission by her of the crime of arson. It appears that the judgment was rendered several weeks after a plea of guilty had been interposed by defendant and followed a denial by the court of defendant's application for probation.
After sentence had been pronounced, defendant presented a motion by which she asked leave to withdraw her said plea of guilty and substitute in lieu thereof a plea of not guilty. At the same time defendant moved the court to vacate the judgment which theretofore had been rendered in the action. The trial court denied each of such motions and an appeal was taken from such order.
[1] Although the intimation contained in the language found in section
[2] As has been repeatedly pointed out by judicial decision, such a writ or order should be granted where the issues presented by the appeal constitute "debatable questions," and should be refused only where it unmistakably *733
appears that the appeal is "clearly frivolous." (In re Adams,
[3] In the instant case, on consideration of the appeal from the order to which reference has been had, it is manifest that the appeal is not "frivolous"; but, to the contrary, that "debatable questions" are presented for determination by this court. It follows that an order staying execution of the judgment should be and it is granted. [4] However, in so doing, this court again directs attention to the fact that in a proper case the duty of issuing such orders or certificates of probable cause rests primarily with the trial court, and thus the effect of a failure or a refusal by the trial court to perform its duty in that regard but adds a burden to this court in a matter in which properly it should not be called upon to act. (People v.Biescar,
Conrey, P.J., and York, J., concurred.