Black, In re, Cr. 10666

CourtUnited States State Supreme Court (California)
Citation59 Cal.Rptr. 429,428 P.2d 293,66 Cal.2d 881
Decision Date16 June 1967
Docket NumberCr. 10666
Parties, 428 P.2d 293 In re James David BLACK on Habeas Corpus. In Bank

Frank C. Wood, Jr., Los Angeles, for petitioner.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Bruce Wm. Dodds, Deputy Atty. Gen., for respondent.

SULLIVAN, Justice.

Petitioner, presently confined at the Reception Guidance Center, California Institution for Men, Chino, California, seeks a writ of habeas corpus on the ground that the Superior Court of the County of Los Angeles denied his application for a new probation report and for probation in violation of rights guaranteed to him by the Fourteenth Amendment to the Constitution of the United States and by article I, section 13 of the Constitution of California. We issued an order directed to the Director of the Department of Corrections (director) to show cause why the relief prayed for by petitioner should not be granted. In response the Superintendent of the California Institution for Men at Chino on behalf of the director has filed a return.

The record before us discloses the following pertinent chronology. In December 1962 while on federal probation after conviction of forgery (18 U.S.C.A. § 2314) in the United States District Court for the Southern District of California, petitioner was arrested by California authorities on a charge of embezzlement. On July 17, 1963, he was indicted by the grand jury of Los Angeles County on four counts of grand theft. (Pen.Code, § 487, subd. 1.) 1 On August 1, 1963, because of the matters alleged in the California charges, petitioner's federal probation was revoked and he was remanded to custody to serve his federal sentence. On October 14, 1963, in the Los Angeles Superior Court, he entered a plea of guilty to one count of the above-mentioned indictment. On November 8, 1963, probation was denied and petitioner was sentenced to state prison for the term prescribed by law, which sentence was ordered to run consecutively to the sentence then being served by petitioner under his federal conviction. The other counts of the indictment were dismissed.

The director has attached to his return a transcript of the oral proceedings had upon the hearing of the motion for probation and upon the arraignment of defendant for judgment. Petitioner was represented by counsel who was not his present counsel. The transcript reveals not only the court's careful consideration of the matter but also its positive and unmistakable determination that the situation did not call for leniency. 2 After imposing sentence as indicated above, the court continued: 'Upon the serving of his federal sentence, however, the Sheriff of this County is ordered to pick him up from his place of incarceration and then deliver him into the custody of the Director of Corrections at the California Institution for Men at Chino. The time to be served pursuant to the state violation shall not run concurrent with the federal time but shall run consecutive.'

On October 7, 1966, petitioner, presumably having served his federal sentence, was released from the federal prison at Terminal Island, California and transported to the county jail at Los Angeles. The record does not disclose, and at oral argument counsel were unable to advise us, how or why he happened to be brought there. It can be reasonably assumed that the Los Angeles sheriff's office in the course of its duties (former Code Civ.Proc., § 1963, subd. (15)) was carrying out the directive of the court that petitioner be picked up at the federal penitentiary and delivered to the state prison. Indeed this seems to be supported by a copy of a letter of the Los Angeles District Attorney attached to the instant petition which indicates that while at the Los Angeles County jail petitioner 'had been treated as a transient prisoner, with a transient booking * * *'

On October 11, 1966, as petitioner alleges, he was brought from the county jail into the Los Angeles Superior Court which thereupon ordered that petitioner be remanded to the custody of the sheriff to be delivered to the Department of Corrections. The record before us does not contain such order. It will be recalled that, as set forth above, the sheriff had already been ordered to deliver petitioner to the director. Nor have we been advised by either of the parties as to show or why petitioner was brought into court. However it can be reasonably concluded from the transcript of the oral proceedings of October 19, 1966, attached to the instant petition, that petitioner was brought into court by mistake. 3

On October 19, 1966, petitioner again appeared in the superior court with his present counsel. 4 On that occasion petitioner, relying solely on People v. Causey (1964) 230 Cal.App.2d 576, 41 Cal.Rptr. 116, and People v. Rojas (1962) 57 Cal.2d 676, 21 Cal.Rptr. 564, 371 P.2d 300, in effect moved the court 'to again examine the facts; perhaps order a new probation report since more than fifteen months had gone by. * * * I (i.e., counsel for petitioner) think he's completely rehabilitated himself and his mental problems have been eliminated, and I just think this is the kind of case where perhaps if not the Court, at least the Adult Authority should have the opportunity of an amended and supplemental probation report. That's why I was here.' Petitioner has characterized his statement to the court as a 'Motion * * * for a supplemental and/or new probation report.' The gist of his counsel's argument on the motion was that petitioner had been rehabilitated since his last court appearance in November 1963; that the 'real facts' should be brought to the attention of the court; and that under such circumstances, petitioner's incarceration pursuant to the 1963 sentence would not be 'in the interests of justice nor in conformity with the philosophy expressed in Section 1203 or the philosophy expressed in People versus Causey.'

Petitioner's motion was denied on the specific grounds that the court lacked jurisdiction. His motion for stay of execution was also denied. The court then ordered the petitioner into the custody of the sheriff to be delivered to the director.

On October 21, 1966, while in the custody of the sheriff in the Los Angeles County jail, petitioner applied to the Court of Appeal for a writ of habeas corpus and for a stay of execution. Nevertheless petitioner was delivered to the custody of the director at Chino. His above petitions were thereafter denied.

Petitioner contends before us that his imprisonment and confinement, although initially lawful, have become illegal because the superior court, having jurisdiction to order a new probation report, should have ordered, examined and considered such a report so as to inform itself of the facts and circumstances in respect to petitioner's alleged rehabilitation and should have entertained and considered petitioner's new application for probation in the light thereof. The director's position as disclosed by his return is that he has petitioner in his lawful custody pursuant to the judgment of conviction of grand theft entered by the Los Angeles Superior Court. The director contends (1) that habeas corpus is not the proper remedy to review the trial court's order denying petitioner's application for a new probation report and for probation; and (2) that the trial court had no jurisdiction to entertain, nor should it have entertained, petitioner's application. We have concluded that petitioner has pursued the proper remedy but that the trial court properly declined relief.

The director argues that an appeal lies from the instant order as from 'any order made after judgment, affecting the substantial rights of the party.' (Pen.Code, § 1237, subd. 3.; People v. Causey, supra, 230 Cal.App.2d 576, 578--579, 41 Cal.Rptr. 116.) Since an appeal lies, so his argument goes, habeas corpus is not a proper remedy in the case before us. 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.)

In the instant case, petitioner, in between sentences as it were, claims that he has been rehabilitated and therefore should not be forced to serve his second sentence until his eligibility for probation has been reevaluated. The trial court has refused to do this because it believes it lacks jurisdiction. Petitioner is not in the precise situation where, having taken an appeal, he will have practically served his sentence before the appeal will be heard. (Cf. In re Newbern, supra, 53 Cal.2d 786, 789--790, 3 Cal.Rptr. 364, 350 P.2d 116.) 5 Indeed, the present...

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