193 P. 813 | Cal. Ct. App. | 1920
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *533 By this habeas corpus proceeding, petitioner seeks an order directing that he be taken from the custody of the warden of the state prison at San Quentin and remanded to the custody of the sheriff of Los Angeles County.
Petitioner, who had been convicted of a felony in the superior court for Los Angeles County and by that court sentenced to the state prison at San Quentin, appealed to this court from the judgment of conviction. Subsequently, the judge of the trial court, pursuant to section
The stay of execution having thus been revoked by the trial judge, and the efficacy of his previously issued certificate of probable cause having thereby been destroyed, application was made here for an order staying execution of the judgment of conviction until such time as the record on appeal from the judgment could be prepared and transmitted to this court, and application made to a justice of this court for a certificate of probable cause. The sheriff, in the meantime, had taken petitioner to the state prison at San Quentin under the judgment and commitment of the superior court. Petitioner was delivered by that officer into the *535 custody of the warden of the state prison, where he remained until September 23, 1920, when the warden, in obedience to the writ of habeas corpus issued in this proceeding, produced petitioner before this court.
Shortly after the trial judge's revocation of his certificate of probable cause and order staying execution of the judgment, this court heard an application for a stay of execution, and on September 18, 1920, ordered that execution of the judgment of conviction be stayed until such time as the record on appeal from the judgment could be prepared and transmitted to the clerk of this court. (See People v. Mayen,
[1] At the argument in this habeas corpus proceeding, counsel on both sides, correctly, as we think, assumed that, in any case where it is proper to grant a certificate of probable cause, any justice of this court may grant the certificate, notwithstanding section
[2] The effect of our order staying execution of the sentence was to make illegal petitioner's detention in the state prison during such time as the stay of execution may continue in force. A stay of execution of a judgment of conviction suspends the judgment and arrests all proceedings thereon during the continuance of the stay. The effect of the suspension of the judgment is that, during the time of the judgment's suspension, the defendant cannot be treated as a convict undergoing punishment for his crime, nor as one who is subject to imprisonment in the state prison — even for the purpose of detention. We know of no law under which the warden of the state prison can be compensated for the keep or maintenance of persons not actually serving time as convicts, undergoing all the punishment, including hard labor, that the law says shall be meted out to persons convicted of felony. The whole scope of the law regulating such prisons must be held to provide only for the imprisonment therein of convicts actually undergoing punishment for their crimes. (Ex parte Arras,
[4] Where the petitioner in habeas corpus is held by one person when another is entitled to his custody, the court is expressly empowered to deliver him to the custody of the person who by law is entitled thereto. (Pen. Code, sec.
1. It is claimed by the district attorney that because a certificate of probable cause was issued by the trial judge, petitioner's only remedy is an appeal from that judge's order revoking his previously issued certificate and stay of execution, and that, therefore, this court was without authority to order a stay of execution of the judgment, or, at any rate, that there was no occasion for our order staying execution. The district attorney's argument, as we understand it, runs substantially as follows: The order of the trial judge revoking the certificate of probable cause that previously had been issued by him was an order affecting the substantial rights of the defendant, made after judgment, and, therefore, is an appealable order, under subdivision 3 of section
This argument is based upon two erroneous assumptions.[5] In the first place, we do not think that the order revoking the certificate of probable cause is an appealable order. We do not think it is an order affecting petitioner's "substantial rights," within the meaning of subdivision 3 of section
[7] That the remedy provided by section
[9] The other erroneous assumption in the point raised by the district attorney that now is being considered by us, is the assumption that, on an appeal from an order of the trial judge revoking his previously issued certificate of probable cause — assuming such order to be appealable — there can be a stay of execution of the judgment of conviction. With the exception of section
For the foregoing reasons, we are satisfied that an application to this court, or to a justice thereof, for a stay of execution pending such time as petitioner's application for a certificate of probable cause can be presented and heard here is the only remedy available to him. His right, under section
[10] 2. It is claimed that if petitioner is entitled to be taken from the state prison and remanded to the custody of the sheriff, his sole remedy is by mandamus against the sheriff. The basis for this contention is the claim that only by a proceeding to which the sheriff is a party can that officer be effectively directed to take the petitioner into his custody. This argument ignores the fact that the sheriff must obey all lawful orders of this court (subd. 4, sec. 4157, Pol. Code), and that he must receive all persons committed to jail by competent authority. (Sec. 1611, Pen. Code.) By the provision of the Political Code just referred to (subd. 4, sec. 4157), it is provided that "the sheriff must . . . obey all lawful orders and directions of all courts held within his county"; and by the Penal Code section last quoted (sec. 1611), it is specifically provided that "the sheriff must receive all persons committed to jail by competent authority." For the reasons stated supra, we have the power, and it is our duty, under section
3. It is said that every intendment is in favor of the jurisdiction of the trial judge to revoke his certificate of probable cause, and that, upon this habeas corpus proceeding, this court is limited to an inquiry into the trial judge's jurisdiction to make the order revoking his certificate of probable cause. This argument proceeds upon an utter misconception of the ground for our authority to stay execution of the judgment of conviction, pending an application to a justice of this court for a certificate of probable cause, and thereby make petitioner's confinement in the state prison illegal pending the stay of execution. It may be conceded that the trial judge's revocation of the certificate of probable cause, whether for a sufficient or insufficient reason, was well within his jurisdiction, and therefore not subject to collateral attack in this proceeding. But even so, his revocation of his certificate of probable cause, upon whatever ground made, like a refusal by a trial judge in the first instance to issue a certificate of probable cause, does not deprive the defendant in a criminal action of his right to invoke the jurisdiction of a justice of this court to issue a certificate of probable cause. To enable the defendant in a criminal action to exercise his right to make such application to a justice of this court, it is the duty of the trial judge to stay execution of the judgment until application can be made to and determined by a justice of this court. And if, for any reason whatever, the trial judge refuses to issue the certificate of probable cause, or revokes a certificate previously granted by him, and refuses to grant a stay of execution of the judgment until application to a justice of this court to grant a certificate of probable cause can be presented and heard, then, though the trial judge's refusal to issue the certificate, or his revocation thereof, and his refusal to grant the stay, are undoubtedly within his jurisdiction, this court, nevertheless, or a justice thereof, may grant *543 such stay until defendant's application for the certificate can be presented to and passed upon by a justice of this court.[11] The judge of the trial court and the several justices of this court have original, concurrent, and co-ordinate jurisdiction to issue the certificate and grant the stay; and a refusal on the part of the trial judge to issue the certificate or to grant the stay is no bar to an exercise of like jurisdiction by a justice of this court and the issuance by him of a certificate of probable cause or the grant by him of a stay of execution of the judgment until such time as he can hear and pass upon an application for the certificate. The exercise of such jurisdiction is an exercise of a part of our appellate jurisdiction. (People v. Gallanar, supra; Matter ofAdams, supra; People v. Clark, supra; People v. Lane, supra.) For these reasons, we think it clear that the refusal of the trial judge, in the exercise of his unquestionable jurisdiction, to issue the certificate, or his revocation of a certificate already issued by him, does not oust a justice of this court of his jurisdiction and authority to issue the certificate, if, in his opinion, there is probable cause for the appeal. Petitioner's right to an order in this habeascorpus proceeding, directing that he be taken from the custody of the warden of the state prison and committing him to the custody of the sheriff, does not require us to hold that the trial judge was without jurisdiction to revoke his certificate of probable cause. The question before us is: What was the effect of our order staying execution of the judgment of conviction? Did it make petitioner's further confinement in the state prison unlawful during the life of the stay? What we are concerned with here is the validity of our order, heretofore made, staying execution of the judgment of conviction. If that order was within our jurisdiction, and we are satisfied it was, then the only proper place for petitioner's confinement during the continuance of the stay is the county jail at Los Angeles, and we have the power, in this proceeding, to order that he be kept there and not elsewhere.
4. Finally, it is contended that this court had no power to issue the writ of habeas corpus to the warden of the state prison at San Quentin, for the reason that the writ, so it is claimed, may not be issued outside of this appellate district. In this connection reference may be made to Older v. Superior *544 Court,
Our conclusion is that the confinement of petitioner in the state prison, during the continuance of our order staying execution of the judgment of conviction, is unwarranted and illegal, and that, during such time as our order staying execution may be in force, he should be remanded to the custody of the sheriff of Los Angeles County, to be by him confined in the county jail in that county.
It is so ordered.