Benson v. State of California

• Decision Date: 14 February 1964
• Docket Number: No. 19069.,19069.
• Citation: 328 F.2d 159
• Parties: Ralph R. BENSON, Petitioner-Appellant, v. STATE OF CALIFORNIA, Peter Pitchess, Sheriff of Los Angeles County, and Leland Carter, Probation Officer of Los Angeles County, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

328 F.2d 159 (1964)

Ralph R. BENSON, Petitioner-Appellant, v. STATE OF CALIFORNIA, Peter Pitchess, Sheriff of Los Angeles County, and Leland Carter, Probation Officer of Los Angeles County, Respondents-Appellees.

No. 19069.

United States Court of Appeals Ninth Circuit.

February 14, 1964.

George W. Kell, Monterey Park, Cal., for appellant.

Stanley Mosk, Atty. Gen., for State of California, William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Los Angeles County, and Harry Wood, Deputy Dist. Atty., and Harry B. Sondheim, Deputy Dist. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, POPE and JERTBERG, Circuit Judges.

POPE, Circuit Judge.

The petitioner above named filed a petition for the writ of habeas corpus in the district court. He also asked for release on bail. His petition was heard by the district judge who examined the entire record of petitioner's case in the state courts of California where he was convicted of a felony, sentenced to a prison term of five years, his sentence was suspended and the petitioner placed on probation for said period of five years on condition that he first serve 180 days in the Los Angeles County jail and pay a fine of $5000. He began service of his 180 day term on October 15, 1963, and after calculation of such good time allowance as he may have, he is due to be released from jail on or about the 29th day of February, 1964.

His conviction and sentence in the state court was affirmed. See People v. Benson, 206 Cal.App.2d 519, 23 Cal.Rptr. 908 (August 24, 1962). Hearing was denied by the Supreme Court of California, and his petition for certiorari was denied in the United States Supreme Court, 374 U.S. 806, 83 S.Ct. 1691, 10 L.Ed.2d 1030. After having thus exhausted his remedies in the state courts, he filed a petition for a writ of habeas corpus mentioned above. His petition was denied as well as his application for release on bail; a certificate of probable cause was issued by the district judge and he has appealed to this court from the denial of his petition for the writ of habeas corpus. He has now, in connection with that appeal, filed with us a petition for enlargement on bail pending appeal here.

The petition for habeas corpus, although filling 79 pages in the transcript of the record, presents no extraordinary statement or claims of fact outside of the ordinary run of such petitions commonly filed in the federal court by state prisoners seeking release on habeas corpus. Some of the five points sought to be made by petitioner in support of his petition for habeas corpus appear to be no more than attempts to procure a review in the federal courts of rulings on questions of California law. Thus he asserts that the state courts erroneously misapplied the California law relating to the definitions of entrapment; that the court had erroneously admitted hearsay evidence, and that it misinterpreted the California Insurance Code. There is a claim that there was an erroneous admission of illegally obtained evidence, but a similar claim was rejected by the California courts, and it may well be that as a matter of law no showing of illegally obtained evidence is presented by the petition or by petitioner's statement of facts in the case. At any rate in due course petitioner's appeal will come on for hearing in this court and the same will be heard upon the merits.

This brings us to the question of whether the appellant is entitled to be enlarged on bail. The applicable Rule is Rule 49 of the Supreme Court Rules which provides as follows:

"Rule 49. Custody of prisoners

"1. Pending review of a decision refusing a writ of habeas corpus, or refusing a rule to show cause why the writ should not be granted, the custody of the prisoner shall not be disturbed, except by order of the court wherein the case is then pending, or of a judge or justice thereof, upon a showing that custodial considerations require his removal. In such cases, the order of the court or judge or justice will make appropriate provision for substitution so that the case will not become moot.

"2. Pending review of a decision discharging a writ of habeas corpus after it has been issued, or discharging a rule to show cause why such a writ should not be granted, the prisoner may be remanded to the custody from which he was taken by the writ, or detained in other appropriate custody, or enlarged upon recognizance with surety, as to the court in which the case is pending, or to a judge or justice thereof, may appear fitting in the circumstances of the particular case.

"3. Pending review of a decision discharging a prisoner on habeas corpus, he shall be enlarged upon recognizance, with surety, for his appearance to answer and abide by the judgment in the appellate proceedings; and if in the opinion of the court in which the case is pending, or of a judge or justice thereof, surety ought not to be required the personal recognizance of the prisoner shall suffice.

"4. Except as elsewhere provided in this rule, the initial order respecting the custody or enlargement of the prisoner pending review, as also any recognizance taken, shall be deemed to cover not only the review in the court of appeals but also the further possible review in this court; and only where special reasons therefor are shown to the court of appeals or to this court or to a judge or justice of either court will that order be disturbed, or any independent order made in that regard.

"5. This rule applies only to cases arising or pending in courts of the United States. For the purpose of this rule, a case is pending in the court possessed of the record until a notice of appeal or a petition for writ of certiorari has been filed, or until the time for such filing has expired, whichever is earlier; and is pending on review in the appellate court after the notice of appeal or the petition for writ of certiorari has been filed."¹

The court below first...