Azeria v. California Adult Authority

• Citation: 13 Cal.Rptr. 839,193 Cal.App.2d 1
• Decision Date: 12 June 1961
• Docket Number: No. 19633,19633
• Court: California Court of Appeals
• Parties: William Anthony AZERIA, Petitioner and Appellant, v. CALIFORNIA ADULT AUTHORITY et al., and Mr. FitzHarris in particular, Respondents.

Page 839

13 Cal.Rptr. 839

193 Cal.App.2d 1

William Anthony AZERIA, Petitioner and Appellant, v. CALIFORNIA ADULT AUTHORITY et al., and Mr. FitzHarris in particular, Respondents.

No. 19633.

District Court of Appeal, First District, Division 1, California.

June 12, 1961.

As Amended June 22, 1961.

Hearing Denied Aug. 9, 1961.

William Anthony Azeria, in pro. per.

Stanley Mosk, Atty. Gen., Arlo Smith, Derald E. Granberg, Deputy Attys. Gen., for respondents.

DUNIWAY, Justice.

Appeal from denial of a petition for writ of mandate. The appeal is in pro. per. and upon the clerk's transcript alone. So far as appears, no answer to the petition was filed and no evidence was offered or received. There does not seem to have been any appearance below in opposition to the petition. Under Code of Civil Procedure, § 1088 the writ cannot be granted by default, and, if no answer be filed, the court may hear the case on the papers of the applicant (Code Civ.Proc. § 1094, and cf. § 1107). It is thus clear that, in a proper case, the court can act upon the petition in the manner in which it did here. There is some doubt whether mandate is the proper remedy in this case. However, the attorney general has suggested that the appeal can be treated as if it were an original application for habeas corpus. Since either deciding the appeal or treating it as such an application will result in a decision on the merits, we do not decide whether mandate is a proper remedy, and this decision is not to be taken as indicating that we think that mandate is proper.

We consider the appeal on the assumption that the factual allegations of the petition, properly pleaded, are true. This, however, does not apply to the arguments therein, which are voluminous, nor to the many statements of opinions and conclusions, as distinguished from facts.

Petitioner is confined, in the custody of the Adult Authority, following his conviction of manslaughter by motor vehicle (Pen.Code, §§ 192, subd. 3, 193) and failure to stop to render aid after an accident (Veh.Code, § 480, now § 20001). He was sentenced for the same term--six months to five years--for each offense, the sentences being concurrent. He was convicted December 30, 1958. On March 9, 1959, he was notified by the authority as to his status, that the minimum time he must serve was six months, and that the first board appearance would be July, 1959. On July 13, 1959, parole was denied and further consideration postponed one year. On July 13, 1960, parole was again denied, and further consideration postponed one year.

He submitted a petition for habeas corpus 'to Los Angeles County' and then, about September 30, 1959, to the superior court for Kern County. The judge wrote to him asking the basis for the issuance of the writ, and suggesting that appellant consult counsel. In November, 1959, the County Clerk of Kern County sent him a certified copy of his petition, stating that he should file in Marin County, because he was then confined to San Quentin prison, where he now is.

On July 22, 1960, appellant addressed a 'demand notice' to respondent authority, asking for copies of the minutes of the hearings of his case on July 13, 1959, and July 13, 1960, and for a statement of its reasons for setting itself up as a judge, failing to comply with its rules of procedure, and failing to comply with a 'directive' of the Governor. On August 5, a representative of respondent wrote to appellant, stating that he was entitled to a statement of the action taken in his case (copies of such statement are attached to his petition) and that, if he felt that the requirements of the law were not being met, he could pursue the matter as he felt he should.

In the body of the long and rambling petition, the following facts appear: (1) Petitioner's previous arrest record is being used to compile briefs that are submitted to the Adult Authority; (2) petitioner was transferred from the jurisdiction of the Kern County Superior Court maliciously as a result of filing his petition for habeas corpus; (3) at the July 13, 1959, hearing, member FitzHarris said, 'This is almost a case of murder'; and 'What makes you think you could be a parolee?' to which petitioner replied that he had completed a city parole previously; (4) many other prisoners, whose maximum terms are as long as or longer than petitioner's, have been granted parole, or had their maximum terms reduced, after serving a shorter term than petitioner; (5) petitioner has contracted 'dematisis,' for which, after 16 months the doctors 'have not yet arrived at a complete diagnosis and/or treatment,' and one doctor will testify 'that it is his belief that said 'dermatisis' will not completely heal until after petitioner is released from custody.' This has kept petitioner from working 'most of the time' and he has suffered 'pain and discomfort,' but his doctor says he will not suffer 'lasting or crippling impairment'; (6) petitioner filed a petition for pardon, which was referred to respondent authority; (7) the Governor has expressed the desire that, where there is a possibility that a petitioner may succeed on parole, he be released; (8) one Harrington, a representative of the authority, told petitioner that the authority does not have to keep minutes.

None of these facts, nor all of them together, can entitle appellant to a...