Ex parte Morehead, Cr. 4734
| Decision Date | 07 November 1951 |
| Docket Number | Cr. 4734 |
| Citation | 107 Cal.App.2d 346,237 P.2d 335 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ex parte MOREHEAD. |
William W. Larsen, Los Angeles, for petitioner.
S. Ernest Roll, Dist. Atty. of Los Angeles County, Jere J. Sullivan, Deputy Dist. Atty., Ralph F. Bagley, Deputy Dist. Atty., all of Los Angeles, for respondent.
Petitioner was convicted in the municipal court on seven counts of misdemeanor three counts of indecent exposure, Penal Code, sec. 311(1); three of child molestation, Penal Code, sec. 647a(1); and one count of lewd and dissolute conduct, Penal Code, sec. 647, subd. 5. His motions for a new trial were denied. The court thereupon suspended further proceedings and certified the matter to the superior court for proceedings under the sexual psychopath act, Welfare and Institutions Code, sec. 5501 et seq. Petitioner having appealed from such misdemeanor convictions, he was permitted to go at large on posting bail in the sum of $500. His appeal is now pending. When he appeared in the superior court, two psychiatrists were appointed to examine him, a hearing was set for October 29 and his bail was increased to $7500. Having been remanded to the custody of the sheriff, the prisoner upon instituting this proceeding for a writ of habeas corpus was released on bail in the sum of $1000 pending a hearing upon the writ. He demands his release from custody on the ground that the superior court had no authority to increase bail as previously fixed by the municipal court, and if such authority does exist, $7500 bail is excessive and contrary to constitutional inhibitions.
This court recently determined that as a matter of right a person is entitled to be released on bail pending a determination of whether or not he is a sexual psychopath. In re Keddy, 105 Cal.App.2d 215, 233 P.2d 159. The question now to be answered is whether the superior court has the authority to fix such bail.
From an examination of the sexual psychopath laws and the Penal Code provisions concerning bail the conclusion is unavoidable that such power does exist. Although the sexual psychopath act has no provision with reference to bail it does set forth a definite procedure for the disposition of a person accused of being a sexual psychopath when a municipal court has, from evidence adduced upon the trial of a misdemeanor, concluded that there is probable cause for believing the defendant to be a sexual psychopath, it adjourns further proceedings and certifies the prisoner to the superior court. For the present, its powers to proceed further are exhausted. The defendant then stands before the superior court for examination and hearing. Only upon a determination by the superior court that the accused is not a sexual psychopath or has recovered from his sexual psychopathy does the court in which the case originated regain jurisdiction in the matter. Welfare and Institutions Code, sec. 5502.
It follows that the municipal court would not be the 'competent court' referred to in Penal Code section 1268 1 as 'a competent court or magistrate' by reason of the fact that its jurisdiction over the accused person is suspended upon the certification. Neither is the municipal court judge when trying the misdemeanor acting as a 'magistrate' under Penal Code section 1268. As a judge of the municipal court he is a trial judge deliberating as a court. Welfare and Institutions Code, sec. 5501. He is not acting as a magistrate under Penal Code, section 807, inasmuch as a sexual psychopath proceeding is not regarded as a criminal action. In re Keddy, supra, 233 P.2d 159; see People v. Crespi, 115 Cal. 50, 54, 46 P. 863.
The remaining question is whether the bail as fixed at $7500 is so excessive as to be in contravention of Article I, section 6 of the Constitution of California, providing in part that 'Excessive bail shall not be required * * *.' The fixing of the amount of bail is largely within the discretion of the trial court and the appellate courts will not interfere unless an abuse of this discretion is manifest. Only when it is apparent per se that the amount fixed is 'unreasonably great and clearly disproportionate to the offense involved' will we order a reduction. In re Tsuji Horiuchi, 105 Cal.App. 714, 715, 288 P. 708, 709. Of course, 'discretion' under this rule does not mean a completely unbridled discretion, but rather it contemplates the exercise of a sound legal discretion. A number of factors must be considered such as the seriousness of the offense charged, the defendant's previous record and the probability of his appearing for the trial if at large. Penal Code, sec. 1275; In re Tsuji Horiuchi, supra, 105...
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