Antazo, In re

• Decision Date: 03 September 1970
• Docket Number: Cr. 13857
• Citation: 3 Cal.3d 100,473 P.2d 999,89 Cal.Rptr. 255
• Parties: , 473 P.2d 999 In re Simeon ANTAZO on Habeas Corpus.
• Court: California Supreme Court

Page 255

89 Cal.Rptr. 255

3 Cal.3d 100, 473 P.2d 999

In re Simeon ANTAZO on Habeas Corpus.

Cr. 13857.

Supreme Court of California,

In Bank.

Sept. 3, 1970.

Sheldon Portman, Public Defender, for petitioner.

Thomas C. Lynch, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., and John T. Murphy, Deuty Atty. Gen., for respondent.

SULLIVAN, Acting Chief Justice.

We are confronted here with the question whether a convicted indigent defendant upon being sentenced or otherwise ordered to pay a fine and a penalty assessment can be required to serve them out in jail at a specified rate per day because he is unable to pay them. As we explain Infra, such a defendant has no choice at all and in reality is being imprisoned for his poverty. Although a direction for confinement for default in payment of a fine may appear to apply equally to both the rich offender and the poor one, actually the former has the opportunity to escape his confinement while the right of the latter to pay what he cannot, is a hollow one. We cannot countenance such a difference in treatment and, absent any compelling state interest necessitating it, we conclude that it constitutes an invidious discrimination on the basis of wealth in violation of the equal protection clause of the Fourteenth Amendment. We will not permit this petitioner to be given such a Hobson's choice.

Simeon Munsell Antazo, petitioner herein, was confined in the Santa Clara County jail at the Elmwood Rehabilitation Center in Milpitas pursuant to a superior court probation order requiring him to pay, as a condition of probation, a fine in the amount of $2,500 plus a penalty assessment in the amount of $625, or, in lieu of payment thereof to be imprisoned in the county jail one day for each $10 of the unpaid amount. Petitioner seeks a writ of habeas corpus on the ground that Penal Code sections 1205 ¹ and 13521, ² which authorize the imposition of a fine (§ 1205) and the levy of a penalty assessment (§ 13521) as well as imprisonment pending payment thereof (§ 1205) are unconstitutional as applied to him. He contends in his petition that his imprisonment pursuant to these statutes as a result of his inability, due solely to his indigency, to pay his fine and penalty assessment constitutes an invidious discrimination based on poverty in violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. We issued an order to show cause and ordered petitioner released upon his own recognizance pending final determination of this matter.

We first set forth the pertinent facts. On November 30, 1968, in the early hours of the morning, a fire broke out at the San Jose Speed and Marine Shop. Investigating officers of the San Jose Police Department discovered that the rear door was unlocked, that all windows were intact, and that the burglar alarm had not sounded. Steven Clausman, one of the owners, informed the police that certain inventory items and $320 in currency were missing from the shop. Arson investigators later determined that flammable liquid had been used to set five separate fires inside the establishment.

The Salinas Police Department later received information that petitioner was in possession of the missing speed equipment. They contacted petitioner and he voluntarily surrendered. After being advised of his constitutional rights, petitioner freely gave a statement to the Salinas police and to arson investigators from San Jose. In this statement petitioner admitted that he had conspired with Clausman to set fire to the shop, that he was to remove some of the inventory and retain it until Clausman had received settlement for his losses, and that he was to receive $1,000 for his part in the affair. Petitioner was booked at the Santa Clara County jail on a charge of arson and released on his own recognizance. Clausman was also arrested on the same charge.

On January 13, 1969, the Santa Clara County Grand Jury returned an indictment against petitioner and Clausman charging them with arson (§ 448a), arson of insured personal property (§ 450a), and conspiracy to commit said substantive offenses (§ 182, subd. 1). Petitioner was arraigned and again released upon his own recognizance. Both defendants entered pleas of not guilty and the cause was set for trial.

Petitioner subsequently withdrew his plea of not guilty and entered a plea of guilty to the arson count. The court dismissed the other two counts and referred the matter to the probation officer for investigation and report. Petitioner remained at large on his own recognizance. In the meantime he testified as a witness for the prosecution at Clausman's trial. A jury convicted Clausman on all three counts.

On April 15, 1969, Clausman and petitioner were arraigned for judgment. After considering the probation reports of both men, the trial judge stated that he considered both defendants 'as standing in the same and identical shoes before the Court with respect to responsibility for these matters.' The court then ordered that imposition of sentence on each defendant be suspended for a period of three years, and that each defendant be released upon probation on the condition, among others, that each pay a fine of $2,500 plus a penalty assessment of $625 'or in lieu of payment thereof one (1) day in the County Jail for each $10.00 unpaid.'

The deputy public defender informed the court that petitioner because of his financial condition would probably have to serve out his fine, and requested the court to waive the Penalty assessment. The judge denied the request, stating that he did not believe that petitioner could be imprisoned for nonpayment of the assessment. Clausman paid his fine and assessment, and was released on the following morning; petitioner, lacking funds with which to make payment, began serving his sentence forthwith at the rate specified in the probation order. On July 24, the deputy public defender again requested the trial judge to waive the penalty assessment; the request was again denied.

Petitioner complains that his imprisonment is illegal in that he has been deprived of his liberty solely because of his indigency while his codefendant, possessed of funds with which to pay both the fine and assessment, has been released.

Respondent ³ asserts in his return that habeas corpus is unavailable to petitioner and that in any event the above-mentioned condition of probation ordering petitioner's imprisonment ⁴ for nonpayment of fine (a) 'is without constitutional infirmity' and (b) is a reasonable one relating to petitioner's reformation and rehabilitation. In his traverse to the return petitioner broadens his attack on the probation order, contending that its conditions were unreasonable since they violated his 'constitutional rights to due process, equal protection and against excessive fines as provided in the Fifth, Eighth and Fourteenth Amendments to the Constitution of the United States, and Article 1, Sections 6 and 13 of the Constitution of the State of California.' We first consider the availability of the relief sought.

The gist of respondent's argument is as follows: An appeal lies from an order granting probation following conviction (citing § 1237, subd. 3, as it read prior to the 1968 revision); petitioner did not appeal; as a general rule, habeas corpus cannot serve as a substitute for an appeal (citing In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513); and petitioner has urged no special circumstances to warrant an exception to such rule.

We confronted such an argument in In re Black (1967) 66 Cal.2d 881, 59 Cal.Rptr. 429, 428 P.2d 293 where we had this to say: 'We referred to such restrictions on the use of the writ in In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513, 514: 'The general rule is that habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction. (Citations.)' (In accord: In re Shipp (1965) 62 Cal.2d 547, 551--552, 43 Cal.Rptr. 3, 399 P.2d 571; In re Manchester (1949) 33 Cal.2d 740, 742, 204 P.2d 881; In re Connor (1940) 16 Cal.2d 701, 705, 108 P.2d 10.) But we made clear in Dixon and in other cases that although a remedy by appeal or other direct attack might have been available, the writ of habeas corpus nevertheless will lie where special circumstances are presented. (In re Newbern (1960) 53 Cal.2d 786, 789--790, 3 Cal.Rptr. 364, 350 P.2d 116; In re Osslo (1958) 51 Cal.2d 371, 376--377, 334 P.2d 1; In re Bine (1957) 47 Cal.2d 814, 817--818 306 P.2d 445; In re Dixon, Supra; In re Seeley (1946) 29 Cal.2d 294, 296, 176 P.2d 24.) It has been said that the 'requirement of exhaustion of the appellate or other remedy * * * is merely a discretionary policy governing the exercise of the reviewing court's jurisdiction to issue the writ.' (Witkin, Cal. Criminal Procedure (1963) p. 769; see In re Bell (1942) 19 Cal.2d 488, 495, 122 P.2d 22.)' (Id. at pp. 886--887, 59 Cal.Rptr. at p. 432, 428 P.2d p. 296.)

In the instant case petitioner bases his petition for a writ of habeas corpus upon a constitutional question of great magnitude--that he has been deprived of his liberty in violation of rights secured to him by the equal protection clause. This court has held that the presence of a constitutional question of extraordinary importance constitutes special circumstances sufficient to relieve a petitioner from the operation of the above-mentioned general rule. (In re Allen (1969) 71 A.C. 409, 410, 78 Cal.Rptr. 207, 455 P.2d 143; In re Bell (1942) 19 Cal.2d 488, 495, 122 P.2d 22. See also In re Oxidean (1961) 195 Cal.App.2d 814, 817, 16 Cal.Rptr. 123; Witkin, Cal. Criminal Procedure, § 797, Supra, at p. 770.) Thus, as we said in In re Bell, Supra, 19 Cal.2d 488, 495, 122 P.2d 22, 26, 'While a...