Boyle, In re, Cr. 17534

• Court: United States State Supreme Court (California)
• Writing for the Court: MOSK; WRIGHT
• Citation: 11 Cal.3d 165,520 P.2d 723,113 Cal.Rptr. 99
• Parties: , 520 P.2d 723 In re James Joseph BOYLE III on Habeas Corpus. In re Gene Glasscock on Habeas Corpus.
• Docket Number: 17602,Cr. 17534
• Decision Date: 10 April 1974

Page 99

113 Cal.Rptr. 99 11 Cal.3d 165, 520 P.2d 723 In re James Joseph BOYLE III on Habeas Corpus.
In re Gene Glasscock on Habeas Corpus. Cr. 17534, 17602. Supreme Court of California,
In Bank. April 10, 1974.

[11 Cal.3d 166]

Page 100

[520 P.2d 724] Morgan, Wenzel & McNicholas, William Marshall, Morgan, and Robert N. Harris, Jr., Los Angeles, for petitioners.

John H. Larson, County Counsel, Robert C. Lynch, Asst. Chief Deputy County Counsel, and Frederick R. Bennett, Deputy County Counsel, for respondent.

Joseph P. Busch, Dist. Atty., Harry B. Sondheim, Donald J. Kaplan and Donald R. Wager, Deputy Dist. Attys., for real party in interest.

MOSK, Justice.

In these consolidated cases petitioners Boyle and Glasscock seek writs of habeas corpus for the purpose of fixing bail. (Pen.Code, § 1490.) They are jointly charged, with other defendants, in a multiple count[11 Cal.3d 167] information filed in the Los Angeles Superior Court. Insofar as relevant to this proceeding, the information accuses petitioners of murder (count VI) and conspiracy to commit murder and other felonies (count V).

Article I, section 6, of the California Constitution declares that 'All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great.' In the case at bar the trial court denied petitioners' motions for bail on the ground that as to the crimes charged in counts V and VI the proof of guilt was evident or the presumption thereof great.

The determinative question, however, is whether these crimes are 'capital offenses' within the meaning of article I, section 6. The constitutional provision does not itself define the term; it simply withholds in such cases a constitutional right to bail, and impliedly grants to the Legislature the power to implement that exception. Pursuant to that grant, the Legislature (1) enacted a procedural statute expressly forbidding bail in capital cases in which the proof is evident or the presumption great (Pen.Code, § 1270), and (2) delineated the class of such cases by substantive provisions imposing the death penalty for specified offenses.

Among those offenses, prior to February 18, 1972, were first degree murder (Pen.Code, §§ 187, 190) and conspiracy to commit murder (Pen.Code, §§ 182, 190). On the cited date we decided People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, in which we held that infliction of the death penalty violates the cruel or unusual punishments clause of the California Constitution (art. I, § 6). In order to subserve the purpose of the constitutional and statutory provisions on bail, however,

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[520 P.2d 725] we further held in footnote 45 of our decision (Id. at p. 657, 100 Cal.Rptr. 152, 493 P.2d 880) that crimes which prior thereto had been punishable by death would continue to be offenses for which bail should be denied when the proof of guilt was evident or the presumption great.

The latter holding, however, was expressly made 'subject to our future consideration of this issue in an appropriate proceeding.' Subsequent events now compel that consideration. Nothing we said in footnote 45 was intended to govern a situation in which the Legislature acts to declare a new and different class of 'capital offenses,' yet that is the precise situation before us. Pursuant to intervening constitutional authorization (Cal.Const., art. I, § 27, adopted Nov. 7, 1972), the Legislature has enacted a statute which purports to restore capital punishment for certain crimes. (Stats.1973, ch. 719.) We need not and do not reach at this time the unresolved question of...