*1 In Bank. Nov. No. 5968. 1956.] [Crim. Corpus. SCAGGS, on Habeas In re PLEAS Bussey, Oliver Williams, H. John W. W. Lawrence Franklin Appellant. Speiser and Lawrence Attorney General, and Clarence A. Brown, Edmund G. Attorney Respondent. Linn, General, Assistant *2 GIBSON, C. J. a proceeding This is corpus habeas Scaggs admit to bail from a conviction of receiving property stolen in violation of section 496 questions presented Penal Code. The are whether the trial court exercised its him refusing discretion in to admit to bail and, if whether so, the refusal constituted an abuse of dis- cretion.

After verdict against was returned Scaggs, he remained large at on bail for about six weeks while his motion for pending. May 15, 1956, On the court denied probation in accordance with pro- the recommendation of the report bation officer’s sentenced to be confined in prison state for the prescribed term by law. His motion for pending appeal bail was also denied. Execution of the sen- stayed through May tence was 31. May 29,

On a second motion for bail was made. It was argued that being owned a hotel which was converted apartments into mortgaged that it was in the amount of $72,000 by and would lost foreclosure unless he were ad- mitted bail. The motion was denied. July 13, Scaggs

On made a third motion for bail, and, by way indicating additional circumstances which arisen had ruling May pointed after the 29, court’s to the illness hospital who was in wife, and to surgery, our in In decision re 46 Cal.2d Brumback, 810 [299 217]. again denying motion, “Well, In the court stated, as I ease, read hold the Brumback what we felt was the law original ruling application of the on this the time for bail. deny The trial court had it within its discretion admit or to bail on . . . The its admission Court exercised time of all the and, at that consideration cir fixing would decided that no order bail be made. cumstances, changed, Nothing think has at all. I don’t the situation ... attention of brought to the been substantial granting of bail to this Defendant.” warrant would by the court had stated response counsel remark contrary policy, to its “in these cases” was granting bail 418 said, type

the court “In this . case . . Where the facts they appeared case, were as in this not would bail.” charged conviction, felony

Before a defendant with a punishable not death is entitled to be with admitted to bail of right,” but, conviction, “as a matter after his admission only discretion,” to bail a “matter of unless a fine is im posed. 1270, 1271, 1272.*) important This (Pen. Code, §§ status of a defendant before and after con difference standing judicial long in both the statutes and viction one from the fact that, California arises decisions presumption the benefit of the conviction, the defendant loses guilty. (Crim. Act presumed to be Prac. of innocence and 32 512; parte (1871), 29, Ex Voll Cal. (1851), 509, 510, §§ concerned, were [holding so as eases conviction that, far after persons that “All shall provision the 1849 Constitution capital unless offenses sureties, be bailable sufficient presumption great” proof is evident or when the applications for rule that intended alter common-law court]; parte Ex to the discretion addressed were [reaching P. 68 Cal. (1885), Brown 829] *3 provision incorporated, respect to that as same result with 6 of article I of the in section change language, in without Constitution].) 1879 having Scaggs, been convicted that thus clear It is entitled imprisonment, was not to felony sentenced of compelled right but was matter of bail as a admitted to to be the In of court. In re discretion to the himself to address recognizing 217], after P.2d 810 Brumback, 46 Cal.2d [299 belongs primarily to the in case such that the of light the in of all the be exercised is to court and trial may not the trial court that circumstances, we held attending charged provides: defendant Code 1270 of the Penal *Section “A bail, to when punishable cannot admitted with death with an offense great. presumption guilt The proof thereof or the his is evident of the strength proof or the to the finding not add does of an indictment presumptions therefrom.” to be drawn charge any provides: “If is for the Penal Code 1271 of the Section conviction, may a matter offense, to bail before be admitted other of right.” provides: conviction of an “After Penal Code 1272 of the Section appealed may death, punishable who with a defendant offense to bail: be admitted judgment appeal right, im- is from a the of when As a matter “1. only. posing a fine judgment right, im- is from a of when As a matter “2. imprisonment misdemeanor. posing in eases of in all other cases.” of discretion As a matter “3. 419 decline to exercise that Although discretion. the court in the present language case used May on 29 might which be con- indicating strued as it declining that was to exercise its dis- cretion, dispel it undertook any regard to in doubt that stating July on that, 13 in previously denying the motion for bail, applied it had the law as set in forth the Brumbaek ease. any event, it is immaterial whether the court failed to May exercise its discretion 29, since record that shows it July did so on making in ruling its final motion for bail. There question remains the whether refusal to admit

Scaggs to bail constituted abuse discretion. Al though, as said, primary purpose we have bail is to assure presence required the defendant in court when (see In re Brumback, 217]), 46 Cal.2d not, does course, may follow other matters not be con sidered determining whether a convicted defendant should be retained in custody pending appeal. Obviously, one important danger consideration that, is whether there if released, he would In an continue commit crime. Judge pre affidavit filed who proceeding, Caulfield, sided at bail, denied motions states there “strong engaged were [Scaggs] indications that he had in other during criminal after the activities even before, trial.” As his denial additional factors which based, motions Judge includes the unfavorable Caulfield officer, that, recommendation of the fact after during conviction, Scaggs liberty several weeks order, which opportunity put he had an his affairs judge’s convincing sup evidence view that there was no port that no hardship, and his belief the claim economic shown on would be substantial errors in the trial of the case of discretion no abuse are satisfied there was We refusing to admit The order show cause discharged, and writ *4 denied. Traynor, and

Shenk, J., J., Spence, J., concurred. denying in the McComb, J., concurred order writ. the J. I dissent. CARTER, appears Scaggs

It from record us the before that Pleas violating provisions guilty was found the of section 496 withholding (receiving Penal Code and certain stolen Superior County property) City the and 27, Francisco on A motion for new San March 1956. trial 1956, on April 4, Scaggs was made and denied and was prescribed by May on prison sentenced for term law stay 15, granted May 1956. He was execution until judgment of 31, appeal from the conviction 1956. Notice being May 1956, appeal diligently and the is 21, was filed prosecuted. for was made and Application denied. day a motion made in pronounced, On the sentence pending admitting bail court for May 29, summarily denied. On appeal. This motion was admission of bail a second motion and in the trial court the record was made following: discloses all, your please, Honor Well, first of

“Mr. Duane: all, but that is not this, is not involved matter of health condition is that where a so As the Court said law. granted. granted, then should be should be serious isn’t involved here. “Well, health “The Court: purely is a matter part No of this. This Duane: “Mr. all. discretion, is your Honor’s within by down the decisions. Within the limits set “The Court: your Honor? that, is “Mr. Duane: What set down Within the limit decisions. “The Court-. is health. newly other is discovered evidence One right, also, is others. Yes, that Duane: “Mr. right that I don’t consider now I will state “The Court: just they cause, because can secure very controlling health a can out. custody, as good if not medical care better that, but from Counsel right, aside Duane: That “Mr. going been says this work has he incorrect when up there, gone seen not true. I have that is years; for four Scagg himself goes on and I know place. what know there, but since has workmen working there has been any help and pay hasn’t been able thing happened he staring him the of trust deed got this tremendous he has face, right now. hardship reasons one Economic

“The Court: exercising discretion. courts please, if except this, the Court No, Duane: “Mr. extraordinary circumstances— where there are have held that may the circumstances as to what go into detail it doesn’t to, propositions couple of cases reférred there are be—but *5 supposed have man was to been murdered where a and after up couple he and a the conviction showed cases of that in as I there case, say, is no one kind, but to take care him, out work these and he obligations, these affairs just $72,000 and will lose property. will lose he matter is “The Couet(cid:127). The submittedÍ Bebman : “Me. Submitted. you appeal Duane,

“The Couet: Mr. to the Court’s fair- law, There is rule understand, ness. a moral I that we just generous we have be before are and there is a rule of law that Court that we controls the have conform to the law before we consider other element. presumes is right,

“Mb. Duane: That and the law fairness in laying principles. down its The have case we before us is a of a case

[“The Couet:] presumptions felon. All the gone. convicted of innocence are I him. custody was fair to didn’t him into im- mediately upon conviction. I could have done I had that. this other situation in mind. I also had in mind the fact that accomplice crime, Randolph, Mr. at liberty and I away liberty didn’t fit to take his him see from time. And six or I assume that the seven he weeks had from the time he became a convicted felon until formally sentence was passed upon, prudent would that he act as a get man and order, if business affairs his business affairs are of such shape going prejudiced by is going to San Quentin. That yours situation is of his not of making; or mine. only question it htm Well, Duane: of permitting

“Mb. liberty. to remain at justice delayed

“The Court: I know that, justice but going party denied I am not to be this man’s-a felon-roaming convicted the streets for a month or two appeal. months until this ease is decided (Emphasis “The motion denied.” added.) July 13, 1956, again counsel for On moved to bail appeal, court that be admitted following: the record discloses only two There are new features in “Me. Duane: it. One the wife of the Scaggs, Defendant, is that Mrs. is in the Supreme hospital operation for an view the we feel that good on the Brumback case we have a decisions argument support application. our meritorious Well, as I read the Brumback case, “The Couet: original felt the law at time of hold what we application for ruling on this The trial court had or deny within its discretion to admit admission to bail Yes. “Mb. Duane: The its at that Court: Court exercised

“The *6 and, in of all decided circumstances, time consideration fixing no be that order bail would made.

“Now, only bring you additional features to the Court’s morning Scaggs, first, attention of are, this the illness Mrs. and the Brumbaek decision. second, ‘ Well, gone ‘Mb. Duane : the other have into. matters been

“The Yes. Court: up condition, set there the have financial I “Mb. Duane: business, of hotel loss whole property, the loss this $64,000 lose thing. is some involved it and he will There anyone any thing. Now, going it is to do harm whole not permit to him to remain on bail at which appeal, up. get time he his affairs all cleared can changed, I don’t think the at all. “The Court : situation brought of Nothing has been to the attention substantial granting bail to that would warrant of this Defendant. Court Well, your Honor the statement that made “Mr. Duane: grant contrary your policy to bail in these cases. was to ‘‘ type of The In this case. Court : Duane: Yes. “Mr. appeared facts Where the were “The Court: case, I would of use proper that is a And I don’t believe “Mb. Duane: frankly. discretion, Appellate you can ask the Well, “The Court: proper. perfectly That discretion.

review the Court’s ’’ part. your of on proper exercise would be a That for and corpus for a writ of habeas application Thereafter was submitted Scaggs appeal for bail on behalf of opinion. and denied without Appeal District Court corpus writ habeas petition for a September 7, 1956, On presented to this Scaggs on behalf for bail on not be ad- why he should cause to show court and an hearing came on for the matter and was issued mitted 10, 1956. on October this court before Scaggs has been discloses that us before The record county Francisco city and San resident of many years value of the estimated property of real is the owner and $100,000; he and is married lives with his wife in an criminal apartment prior owned and he has no him; record. hearing attorney general pre-

At the before this court the Harold Caulfield, sented the affidavit of Honorable C. judge presided and ruled on who at the trial to bail. various for the admission said motions judge affidavit the states as follows: for defendant Scaggs’ “At a motion the time of sentence pending appeal presented urged release on bail engaged ground converting that he was into an a hotel apartment house, that this work was incomplete, and hardship economic and financial loss would result unless gave were allowed to remain on bail. careful consideration representations support thus made and the evidence in The record thereof. shows that the work referred to had been process years nothing appeared slow for several about it unique prevent so adequate arrangements as to for its supervision conservation being from made. defend- The ant’s wife personal representations and others made to the *7 in court hardship, connection with claim of this economic but representations neither claim nor the made were thus supported by substantial, convincing evidence. On the other hand I report, apparent considered the unrelia- bility dishonesty and defendant, strong and certain indications that engaged he had in other criminal activities before, during trial, and even weighing after the as factors against his release. Lastly, my judgment in there were no such substantial errors of in law involved this trial as to present a substantial appeal. issue on

“Considering all these factors, it was determined that the society interests of would ordering best be served custody defendant into and May 15, such was made on 1956.

“It was represented thereafter required that the defendant still further time in which to personal take care of his affairs, although my judgment and in ample he had had time to make such arrangements, granted stay he was a execution period days a of 14 including May 29, 1956.

“Subsequently presented there an additional motion for an order fixing on appeal. This motion was based representations the same previously which had been con- Nothing sidered. presented. new Under the circum- stances of this I case did alleged not find such hardship involved, for other factors considering the reason,-

sufficient on bail to be defendant permitting this the motion.” denied therefore my discretion the exercise of application us a similar recently had before We have Brumback, 46 Cal.2d (In re very case similar unanimously court 1956) in 29, which decided June 217], belongs primary discretion that the “It is settled declared: legal a sound discretion judge and that it is to the trial attending circumstances. light of all [Cita in the be exercised purpose primary recognize that He should tions.] practical assurance conviction, is or bail, after before presence is his the court when upon attend will defendant upon the merits of judge passed has the trial required. Where unless a not be disturbed ruling will application or appears 'circum of discretion abuse [citations] manifest intervened since extraordinary character have of an stances ’ obviously . proper. . . action make such which conviction been held in which it has no ease appears “There judge. Were of the trial limits the discretion this test in this instance it judge did applied as the trial that rule for it 3, nullify subdivision virtually section would early application for bail and preclude a successful would peni- term in the serving part defendant’s necessitate and untoward jail some new until tentiary sojourning or discovery or of new circumstance, like illness unexpected Absence of inter- evidence, eventuate. convincing should prevent the trial extraordinary cannot circumstances vening although act, failure to their acting or excuse his from judge It follows that may influence his discretion. properly presence mistakenly declined to present instance judge in the his discretion. exercise primary the matter discretion

“It true that court but it is not correct in the trial appeal resides bail on ‘ in this state that always been the law say t [i] . of the Penal Code . . referred to section 1272 the discretion ’ courts, appellate conferred is not a *8 Cal.App.2d 837, 839 Davis, 67 People v. stated support page 839 do not the cases cited 675]; and question presented. of here power no There is proposition. upon 4b) 4 and confers the (art. VI, The Constitution §§ Appeal of and each the District Courts Supreme corpus, the of habeas right to issue writ justice the individual proper makes it a avenue for Code, section and Penal extraordinary intervening requirement of obtaining The guidance for the of criterion self-imposed a circumstances is justices in the exer- appellate appellate courts and individual The cardinal rule is that judicial discretion. cise of sound a must for the appear of as basis abuse discretion manifest justice; by appellate or court exercise of a sound discretion supplementary one intervening circumstance test is a the justice of to do designed the court review even to enable judge for though it become too late the trial to do so. It by way enlargement concept permissible of of operates upon power and not a restriction the of trial or any In event that test is not The appellate court. exclusive. judge may though bail his discretion trial no inter- vening appellate has occurred the may court circumstance appears regardless of discretion an abuse the act where of intervening extraordinary existence But if circumstances. action occurred affirmative the upper may have court though no abuse discretion in appropriate the trial court present instance no appears. In discretion was exercised intervening no appear. below and circumstances now Appel- application to have his lant is entitled considered on the ’’ not in this court at (Emphasis merits but this time. added.) foregoing rules Applying to the case bar, at I am of opinion judge the trial abused his discretion in Scaggs refusing pending to admit to bail appeal. The offense Scaggs was convicted clearly which a bailable offense Const., I, (see 6; art. Cal. Pen. Code, §1272). § There is nothing in record from which a reasonable mind could Scaggs, if admitted conclude that to bail in a sum, reasonable upon the court presence would not attend when his is required. fact, the record Scaggs discloses that large remained at period over two months after conviction upon the bail posted prior had which he conviction. In my opinion it was a manifest abuse of discretion on part of the trial judge to refuse to fix bail in sum whatsoever in a case of this It is apparent character. from the remarks judge passed time upon the various motions for Scaggs bail, admission give that he did not considera- primary purpose bail, tion but had mind subjecting punishment regardless forthwith of the outcome of which he had taken from judgment of convic- At no time judge tion. did the trial intimate that his reason refusing Scaggs appeal was that he enter- tained the belief that would fail to attend presence court required. when It is obvious that the *9 judge permitted such a not entertain belief because did large remain at after conviction for to over two pronouncing and over weeks after months two sentence posted prior had to trial. In bail which fact only given by that the reasons judge record discloses the trial refusing Scaggs pending appeal bail were that he wanted go prison pending appeal delayed him to because to “Justice going justice party and I am not to be a to man’s— denied felon—roaming the streets a month or a convicted two appeal” his ease is decided on and it was months until that policy his to bail cases this character. He against “I that: considered in his affidavit also stated unreliability dishonesty of and apparent report, engaged he had strong indications that defendant, and certain before, during and even after the in other activities criminal my against Lastly, in release. trial, weighing as factors of law involved no such errors judgment there substantial were appeal.” issue present a substantial trial as to in this inadequate justify foregoing reasons are submit that a of this character. in case grant bail refusal to- in law enforcement it was experience my long years of In unusual for convicted not at all it was my observation of this pending appeal cases to bail persons be admitted persons such I have no recollection and character, his presence when upon the court failing attend ever for the exercise my only realm opinion required. amount which this is the such as discretion in a case by risk assumed judge to be commensurate with believes bail bail, not whether prisoner and the admission or granted refused. should be are many criminal cases judicial notice may take We appeal; cases the defendants in such that some of reversed on acquitted upon retrial. While others are never retried and are every judgment of court of record carries it is true that presumption become validity, does not presumption person A con- judgment becomes final. until the conclusive of law until felony is not a felon as a matter of a victed were Appellate final. courts judgment of conviction becomes judgments aside of trial courts and set to review established pursuant rules law not obtained those which were state, and statutes of this in the Constitution declared right appeal, has the of a crime every person convicted validly perfected prosecuted, and when is a affirmed on It final until conviction is not justice principle the framers of salutary of American which wisely engrafted our both the federal and state Constitutions persons that all shall be bailable our fundamental law sureties, capital proof offenses sufficient unless for when the presumption great, is evident or the that excessive *10 required (Cal. Const., principle I, 6). shall not be art. This § Eights has been embraced of our Con- Declaration adoption and as stitution since its was intended a fundamental safeguard liberty It citizens this state. should applied be invoked proper in all cases to the end person unjustly who is so unfortunate be convicted may required crime penal to endure be servitude until conviction has become final.

For foregoing reasons would the writ habeas corpus in the ease at bar and order that be released on bail in the of $10,000 sum from the judgment of conviction subjected. to which he is now

SCHAUER, J., Dissenting. In myview, upon the record presented us, prima defendant facie entitled admitted reasonable bail I find no factual basis implied for the finding that no conceivable amount of bail would presence secure the of defendant and his amena- bility process to the required. when court Neither does support the record ground other tenable denying Certainly objective the indicated of punishing the de- fendant ground not a valid him for jailing pending his appeal. Consequently, the absolute denial of an fixing bail is an (Cal. abuse of discretion Const., art. I, §6; In re (1956), Brumback 46 Cal.2d 810 217]).