In re MAX OSSLO and ARTHUR L. MEYER, on Habeas Corpus
Crim. No. 6295
In Bank
Dec. 23, 1958
51 Cal.2d 371 | 323 P.2d 397
Edmund G. Brown, Attorney General, William E. James, Assistant Attorney General, James Don Keller, District Attorney (San Diego) and Claude B. Brown, Deputy District Attorney, for Respondent.
SCHAUER, J.---By application for habeas corpus petitioners Osslo and Meyer ask that they be relieved of the assertedly illegal restraint of probation orders and that the superior court be required to revoke probation and to sentence petitioners.1 The superior court determined that petitioners had “accepted probation” and that the court would not “release them from it.” We have concluded that petitioners could disavow probation and demand sentence.
On August 9, 1956, a jury found petitioners guilty of conspiracy to commit assault and of assault by means likely to produce great bodily injury. As is recounted in People v. Osslo (1958), 50 Cal.2d 75 [323 P.2d 397], petitioners are butchers’ union officials and the offenses were related to a jurisdictional dispute between petitioners’ union and a clerks’ union. The physical acts of violence constituting the assault were committed not in person by petitioners but by members of a sailors’ union (a union not involved in the jurisdictional
On August 27, 1956, the trial court in passing upon petitioners’ application for probation stated, “Now, although I am going to grant these defendants probation, of course probation is a privilege and they are going to have to comply with it. If they don‘t like the terms, of course they don‘t have to accept probation. When I get through here, I want you to tell me. You can confer with your clients and tell me whether you want to accept probation.” (Italics added.) The trial court then stated the conditions upon which it proposed to grant probation. Neither petitioners nor their counsel said anything in open court as to acceptance or rejection of probation. Petitioners were placed in the custody of the sheriff.
As to each petitioner the probation orders of August 27, 1956, provided, among other things, as follows: that imposition of sentence was suspended for 10 years; that petitioner be confined (Osslo for six months, Meyer for three months) in a county adult detention facility; that petitioner pay a fine (Osslo $1,500, Meyer $750) from his own funds in monthly installments of $50, the first installment to become due within 60 days from petitioner‘s “release from custody“; that petitioner annually, on or about December 31, file with the probation officer on a form approved by the court, an affidavit that the payments “have come from his own funds and not from monies received or solicited from any Union or its members“; that “during the period of his probation [petitioner] shall not hold any position in, or receive any remuneration from, any union“; that “effective such date as this judgment may become final, [petitioner] shall resign any [union] position“; and that “this . . . Judge shall retain jurisdiction of this matter throughout the said period of probation and no other . . . Judge shall modify this order without notice to the Judge who tried the case.” Petitioners at once appealed to the District Court of Appeal.
On August 29, 1956, there was filed in the superior court a form of affidavit and an order of the trial judge that during probation the probationers shall sign such an affidavit “during . . . January of each year, or more often, if requested.” This form of affidavit states, among other things, that affiant has received no funds from any union or union member for the purpose of paying his fine, and “That in accordance with the
On September 13, 1956, this court on an application for habeas corpus ordered petitioners’ release on bail. On their appeal in the District Court of Appeal (People v. Osslo (1957, Cal.App.), 310 P.2d 1020, 1030-1031) and thereafter in this court (which granted a hearing after the decision on appeal by the District Court of Appeal) petitioners unsuccessfully urged that the trial court was without power to require, as a condition of probation, that they should not hold any union position or receive remuneration from any union. This court ordered that the provision of the probation orders by which the individual trial judge purported to retain jurisdiction of the cause be stricken; in all other respects the orders were affirmed. (People v. Osslo (1958), supra, 50 Cal.2d 75, 102-104 [29-32], 106; rehearing denied.)
Petitioners sought certiorari in the United States Supreme Court. On April 28, 1958, this court denied their application for stay of execution of judgment pending the application for certiorari. On April 29, Mr. Justice Douglas of the United States Supreme Court granted bail. On June 9, 1958, the federal Supreme Court denied certiorari and terminated petitioners’ release on bail as of June 23, 1958.
On June 18, 1958, petitioners gave notice that on June 23 they would move the trial court for an order “modifying the judgment . . . and modifying the Order admitting [petitioners] to probation.”
On June 23, 1958, petitioners for the first time expressed to the trial court their desire to reject probation. They moved for sentence as misdemeanants2 and urged that “imposition of a substantial fine would serve the interests of justice.” When this motion was denied, petitioners explained that they believed that “honor requires that [they] not give up [their] right to employment by a union,” and moved that the court “withdraw the order for probation, and if . . . sentence cannot be made a misdemeanor that . . . your Honor pronounce judgment.” The court denied this motion and the further motion for modification of the conditions of probation to permit union employment.
The trial court based its denial of petitioners’ motions upon
Habeas corpus is a proper remedy to effect the relief sought by petitioners; i.e., release from the restraint of the probation orders and remand of petitioners to the superior court for sentence. (
Respondents point out that petitioners have appealed to the District Court of Appeal from the order of June 23, 1958, and urge that appeal is the proper remedy. The order is probably appealable as an order made after judgment affecting the substantial rights of petitioners. (See In re
The appellate courts of this state have had occasion repeatedly to emphasize that a defendant has no right to be granted probation; probation is a privilege, an act of grace or clemency. (E.g., In re Davis (1951), 37 Cal.2d 872, 874 [236 P.2d 579]; In re Trombley (1948), 31 Cal.2d 801, 811 [9] [193 P.2d 734]; cases collected in West‘s Ann. Pen. Code (1956),
It now becomes necessary to emphasize that a defendant has the right to refuse probation, a right of which he cannot lightly be deprived.
The trial court apparently was of the opinion that petitioners’ right to reject probation was affected by their failure to seek a stay of execution of the probation orders pending the appeal, for the trial court at the hearing of June 23, 1958, inquired why petitioners “didn‘t ask for a stay of the probation proceedings so that they wouldn‘t be governed by the probation orders while the case was up on appeal.”5
We cannot agree that petitioners’ failure to request a stay of execution of the probation orders evidenced an irrevocable acceptance of the conditions of those orders. Petitioners’ failure to seek a stay of execution was based on their mistaken belief that their appeal and release on bail effected a stay6
Petitioners take the view that they evidenced rejection of probation by resuming their activity in their union offices immediately upon their release on bail (on September 13, 1956) and by failing, while their appeals were pending, to file either the affidavits referred to in the original probation orders or the somewhat different affidavits set out in the order of August 29, 1956. It appears proper to point out that we do not base our decision that petitioners have the right to disavow probation upon this consideration.
The original probation orders provide both that petitioners shall hold no union office “during the period of probation” (i.e., beginning with the entry of the probation orders on August 27, 1956) and that petitioners shall resign their union positions “effective such date as this judgment may become final.” Since the probation orders of August 27 are to be construed favorable to petitioners (In re Bramble (1947), 31 Cal.2d 43, 51 [6, 7] [187 P.2d 411]), the provision that they resign their union offices “effective such date as this judgment may become final” (that is, when affirmance on appeal became final; see Pacific Gas & Elec. Co. v. Nakano (1939), 12 Cal.2d 711, 714 [1] [87 P.2d 700, 121 A.L.R. 417]; Jennings v. Ward (1931), 114 Cal.App. 536, 537 [1] [300 P. 129]) prevails over the provision that they hold no office during any part of the period of probation. Thus, petitioners’ resumption of union activity on September 13, 1956, was not inconsistent with the original probation orders properly construed.
that “An appeal to the Supreme Court or to a district court of appeal from a judgment of conviction stays the execution of the judgment in all cases where sentence of death has been imposed, but does not stay the execution of the judgment in any other case unless the trial or appellate court shall so order.” So far as the effect of appeal was concerned, an order granting probation was a “judgment” as to which execution was not stayed, for
The terms of the form of affidavit prescribed by the order of August 29, 1956, differ somewhat from those specified in the original probation orders. The August 29 form of affidavit states, among other things, that “affiant has held no . . . office in any . . . Union since September 1, 1956.” This later order does not expressly state that it is intended to modify the previously declared terms of probation, but if it is valid such would be its effect. We need not now decide whether the trial court‘s statutory power to modify the conditions of or revoke probation “at any time during the term of probation” (
The trial court here apparently assumed (since it made the order of August 29, 1956) that it could modify (or clarify) the terms of probation while an appeal was pending, but it also indicated the view that it could not revoke probation while an appeal was pending.7 It is, of course, the general rule that “Pending the appeal the superior court has no jurisdiction to vacate the judgment or make any order af-
It is also true that “within the meaning” of
The final judgment and commitment place the defendant in the custody of the warden or penal authority and remove him from the jurisdiction of the trial court. But probation essentially calls for continuing supervision of the probationer and maintaining jurisdiction and power in the trial court to act in respect to such supervision. For example,
From what has been said it would appear to follow that while an appeal from a probation order is pending the trial court, if execution of the probation order is not suspended, should have power to require supervision of the probationer, and to punish violation of the conditions of probation by modification of those conditions or revocation of probation. Further support is given this view by the 1957 amendment of
Certainly the mere taking and pressing of an appeal from an order granting probation, and seeking reversal of the conviction or a declaration that any of the conditions of probation are invalid, should not, merely as such, constitute a ground for revocation or modification of probation. It could also be argued that a trial court should not, while an appeal is pending, make any change in the original conditions of probation other than such as might become necessary or expedient by reason of some act or default of the defendant or some event or circumstance not connected with the appeal from the order. In this case, as hereinabove indicated, we do not need to pass upon the extent of the trial court‘s jurisdiction over the probationers or the terms of their probation while their appeal was pending, but we expressly do not accept as correct or as controlling in this proceeding either petitioners’ assumption that they violated probation pending appeal or the trial court‘s assumptions that it could modify but could not revoke probation pending appeal.
The statutes concerning probation contain no provision as to its acceptance or rejection. However, it is settled that a defendant has the right to refuse probation, for its conditions may appear to defendant more onerous than the sentence which might be imposed. (People v. Osslo (1958), supra, 50 Cal.2d 75, 103 [30]; In re Hays (1953), 120 Cal.App.2d 308, 310 [4] [260 P.2d 1030]; People v. Frank (1949), 94 Cal.App.2d 740, 742 [211 P.2d 350]; Lee v. Superior Court (1949), 89 Cal.App.2d 716, 717 [1] [201 P.2d 882]; People v. Blankenship (1936), 16 Cal.App.2d 606, 610 [61 P.2d 352]; People v. Billingsley (1943), 59 Cal.App.2d Supp. 845, 849 [3] [139 P.2d 362].)8
It is unnecessary to determine in this case whether a defendant might in some circumstances so manifest “acceptance” of probation as to lose his right to disavow that privilege with the concomitant burdens of its conditions, and thus be placed in the position of being required to intentionally violate probation in order to obtain its revocation and the imposition of sentence. In any event these petitioners did not so
It is true that petitioners did not comply with the trial court‘s direction, when it announced the conditions on which it proposed to grant probation, that they “tell me whether you want to accept probation.” But whatever may be within the trial court‘s permissible scope of conditions for granting probation it could not make petitioners’ right to reject the offered probation conditional upon their immediate announcement of rejection. If petitioners, as soon as the trial court announced the terms upon which it would grant probation, had rejected such offer and demanded sentence, they could not have pressed their contention that the trial court was without power, as a condition of probation, to require them to give up for 10 years the union activity which they had chosen as their life‘s work. Although this contention was legally untenable it was not frivolous. The trial court, in effect, would require petitioners to “accept” the conditions of probation in order to question their legality in the appellate courts.
In People v. Billingsley (1943), supra, 59 Cal.App.2d Supp. 845, 850 [6], it is said that “Doubtless election to serve the sentence rather than accept probation must be timely made or probation will be deemed to have been accepted.” We do not now decide whether a defendant might in some circumstances lose his right to disavow probation by failure to make “timely” manifestation of “election to serve the sentence rather than accept probation.” In the circumstances of this case petitioners’ assertion of that right, made promptly upon the unsuccessful termination (as to all but one provision) of their attacks on the terms of probation by appeal and application for certiorari, was timely.
Petitioners seek to raise the question of the trial judge‘s bias and prejudice. Without suggesting that they have alleged facts showing bias and prejudice, we decline to pass upon the question because it does not appear to have been raised in the superior court (under
For the reasons above stated the petition for habeas corpus
Gibson, C. J., Shenk, J., Traynor, J., Spence, J., and McComb, J., concurred.
CARTER, J.---Concurring and Dissenting.---I agree with the majority that petitioners must be released from the illegal restraint imposed by the terms of their probation, but the opinion falls far short of granting the relief to which petitioners are entitled, by permitting the trial court to now impose sentence on them. Considering the additional facts revealed at the hearing of petitioners’ motions to reject probation, this court has no alternative but to release petitioners from any further restraint, on the ground that they were denied a fair trial in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Denial of a fair and impartial trial in a criminal case, whether the crime charged is a felony or misdemeanor, constitutes a denial of due process of law and is in violation of the
The degree of bias and prejudice which disqualifies a trial judge is more than a nebulous belief that the judge had some preconceived ideas about a piece of litigation; it is personal bias and prejudice or a bent or leaning either for or against the litigant, which, regardless of the merits of the cause, makes it impossible for the judge to view the case dispassionately. It is a state of mind calculated to impair impartiality and to sway judgment. (Estate of Friedman, 171 Cal. 431 [153 P. 918]; McEwen v. Occidental Life Ins. Co., 172 Cal. 6 [155 P. 86]; Evans v. Superior Court, 107 Cal.App. 372 [290 P. 662]; McKay v. Superior Court, supra.) Moreover, the bias or prejudice must be against the complaining party. (People v. Sweet, 19 Cal.App.2d 392, 396 [65 P.2d 899]; Woolley v. Superior Court, 19 Cal.App.2d 611, 626-627 [66 P.2d 680]; People v. McCullough, 100 Cal.App.2d 101, 110-111 [223 P.2d 37].)
It is well settled that expressions of opinion uttered by a judge, in what he conceives to be a discharge of his official duties, are not evidence of bias or prejudice. (Estate of Friedman, supra, 171 Cal. at 440; McEwen v. Occidental Life Ins. Co., supra, 172 Cal. at 11; Fishbaugh v. Fishbaugh, 15 Cal.2d 445, 456 [101 P.2d 1084]; Kreling v. Superior Court, supra, 25 Cal.2d at 310-311.) Nor does marked disapproval by the judge of unlawful misconduct, disclosed by evidence, amount to a manifest prejudice by the trial judge. (In re Steiner, supra, 134 Cal.App.2d at 391.)
As qualified by these principles the criterion for determining bias and prejudice is what the trial judge said or did. (McKay v. Superior Court, 98 Cal.App.2d 770 [220 P.2d 945].) The allegations showing prejudice must give fair support to the charge of a bent of mind that has prevented or impeded impartiality of judgment and assert facts with particularity from which a reasonable mind might fairly infer bias or prejudice. (Wilkes v. United States, 80 F.2d 285, 288-289.)
It is clear that the facts contained in the present affidavit are sufficient to show such bias and prejudice. Although it is unnecessary to refer in detail to the errors that occurred during the trial of petitioners as pointed out in my dissenting opinion (People v. Osslo, 50 Cal.2d 75, 106), a brief summary of them is required to set the stage for what was to follow. It is sufficient to say that the main thrust of the trial
At the time the appeal of the case was considered on its merits all that could be inferred from the trial judge‘s rulings, which permitted these tactics, was that they were erroneous. As serious and as prejudicial as I felt these errors were, and still do, our conclusion did not go beyond the observation that the trial judge misapprehended the law. The majority admitted there was error, but held that it was not prejudicial. However, even the majority found unpalatable the trial judge‘s astonishing provision that he retain exclusive jurisdiction of petitioners during their probation, and this term was stricken from the judgment by the decision of this court (50 Cal.2d 75). This provision was a portent of the trial judge‘s position which was to be made known subsequently. The factual circumstances remained unchanged until the instant proceedings were commenced.
At the hearing on petitioners’ motions to reject probation, the trial judge made the following revealing remarks as quoted in the majority opinion: “‘Levying a fine in a case of this kind is useless’ because the fine would be paid by assessment of union members. ‘I think it is going to be conducive to peace in the labor movement if these officials have to control their actions to such an extent that they don‘t become involved with the Penal Code . . . They are responsible to the criminal courts and . . . if they know it and it is certain if they are convicted they won‘t be turned loose and have the matter made a misdemeanor, I think we will have peace in the labor movement.‘”
In considering these comments it will be remembered that petitioners were supposedly being tried for a conspiracy to commit a misdemeanor, and not for disrupting the peace in the labor movement. Moreover, as was stated in my dissent, there was not one shred of evidence indicating that petitioners, in their capacity as union officials, or otherwise, demonstrated
Only one conclusion can be drawn from the trial judge‘s preoccupation with petitioners’ union membership. His obvious antipathy to the labor movement and union members in particular, as reflected in his rulings at the trial level, and fully demonstrated by his remarks at the hearing of the motions to reject probation, prevented the exercise of his impartial judgment. He attempted to clasp petitioners within the ambit of his jurisdiction for 10 years to preclude their participation in any labor union activity whatsoever. His punishment was not aimed at the individual petitioners but at labor union members as a whole for the sole purpose of controlling their actions. Again I repeat, neither labor unions nor the labor movement was on trial. But the statements by the trial judge, referring to these elements, coupled with his efforts to punish them, point to a preexisting bias and prejudice which disqualified the trial judge and rendered the trial before him violative of due process of law.
Habeas corpus is an available remedy where a defendant is denied due process of law at his trial, provided there is no other adequate remedy. (In re Wallace, 24 Cal.2d 933, 938 [152 P.2d 1]; In re McCoy, 32 Cal.2d 73, 76 [194 P.2d 531].) Where, however, the facts on which the petition for habeas corpus is based, arise or come to light subsequent to the appeal, the existence of a prior appeal will not deter us from granting relief clearly called for. (Chessman v. Teets, 354 U.S. 156, 161-162, 164-165 [77 S.Ct. 1127, 1 L.Ed.2d 1253].)
Such is the situation in the case at bar. The most convincing statements demonstrating prejudice and bias by the trial judge did not occur until the hearings on the motions to reject probation, a time after the appellate processes had been exhausted.
Nor does the fact that petitioners have not specifically requested this relief militate against granting appropriate relief. “The proponent before the Court is not petitioner but the Constitution of the United States.” (Chessman v. Teets, supra, 354 U.S. at 165.) Where the facts warrant relief, as abundantly appears herein, the court, as justice requires (
This case presents a sorry picture of justice in this state. It is obvious to my mind that if these petitioners had not been
I have always believed that considerations of justice should rise above prejudice and that persons charged with crime should be judged on the basis of proven guilt, regardless of race, color, creed or occupation. I am convinced beyond doubt that if such rule were applied here, these petitioners would be completely exonerated and discharged from custody.
For the foregoing reasons petitioners should be discharged from custody.