Ex parte Newbern

• Citation: 55 Cal.2d 500,11 Cal.Rptr. 547,360 P.2d 43
• Decision Date: 09 March 1961
• Docket Number: Cr. 6661
• Parties: , 360 P.2d 43 In re Emery NEWBERN on Habeas Corpus.
• Court: California Supreme Court

Page 547

11 Cal.Rptr. 547

55 Cal.2d 500, 360 P.2d 43

In re Emery NEWBERN on Habeas Corpus.

Cr. 6661.

Supreme Court of California, In Bank.

March 9, 1961.

Edward Molkenbuhr, Jr., San Francisco, under appointment by the Supreme Court, for petitioner.

Roger Arnebergh, City Atty., Philip E. Grey, Asst. City, Atty., and William E. Doran, Deputy City Atty., Los Angeles, for respondent.

WHITE, Justice.

Emery Newbern petitions for a writ of habeas corpus alleging illegal conditions of detention after sentencing on two counts of intoxication and arrest on a third. Pursuant to the order to show cause petitioner was released on his own recognizance and counsel was thereafter appointed to represent him before this court.

Petitioner was arrested on the 21st day of December, 1958, and again on the 3rd day of March, 1959, on charges of intoxication (violation of Section 41.27(a) of the Los Angeles Municipal Code), convicted and placed on probation therefor on the condition that he violate no law relating to intoxication. (These cases, respectively Municipal Court, Los Angeles Judicial District, cases No. 018834 and No. 037551, are hereinafter referred to as the December 1958 and March 1959 cases.) On March 31, 1960, probation was revoked for violation of the condition thereof and thereafter two consecutive 180 day sentences were imposed on petitioner. On April 5, 1960, the sentences were vacated on petitioner's motion and he was released on his own recognizance pending further proceedings. On April 8, 1960, petitioner appeared in court in a condition described by the court as 'obviously intoxicated.' The causes were thereupon continued to April 12, 1960, bail of $500 in each case was set by the court, and petitioner was committed for want thereof. On April 12 the consecutive 180 day sentences were reimposed. A notice of appeal was filed and bail on appeal was set at $500 in each case. Petitioner was held for want thereof.

On April 1, 1960, while still at large, petitioner was again arrested, charged with having been intoxicated and was released on his own recognizance pending trial. (This case, Municipal Court, Los Angeles Judicial District, case No. 133205, is hereinafter referred to as the April 1960 case.) On April 28 he appeared for trial before the same judge who had sentenced him on the other two cases pending herein. Petitioner moved for a continuance in order to prepare an affidavit supporting a motion to disqualify the judge for prejudice pursuant to section 170 of the Code of Civil Procedure. The continuance was granted but shortly thereafter, and after petitioner had been returned to jail in default of bail in the December 1958 and March 1959 cases, the order releasing petitioner on his own recognizance was dissolved by the trial judge and bail was set as $100 pending trial. On the day that petitioner learned that bail had been set at $100 he asked his jailer to be allowed to telephone to a bondsman in order to obtain bail in all three cases but was refused pursuant to a Los Angeles Police Department Regulation adopted, he was told, under the 'State telephone call law.' Pen.Code, § 851.5.

Petitioner contends that the bail pending appeal of $500 in the December 1958 and the March 1959 cases is illegally high; that the trial judge lacked jurisdiction to take any further action in the April 1960 case after petitioner was granted a continuance in order to prepare a motion to disqualify the judge and that, therefore, the order setting bail at $100 was void; that in any event the bail of $100 in that case was illegally high and excessive; and that the denial of petitioner's request to be allowed to telephone to a bail bondsman was unlawful and resulted in the deprivation of petitioner's constitutional rights. Habeas corpus is an appropriate procedure in which to raise such questions. In re Clark, 51 Cal.2d 838, 840, 337 P.2d 67; In re Petersen, 51 Cal.2d 177, 181, 331 P.2d 24; In re Bartges, 44 Cal.2d 241, 248, 282 P.2d 47; In re Chessman, 44 Cal.2d 1, 5-6, 279 P.2d 24; In re Berman, 105 Cal.App. 270, 271-273, 287 P. 373; Pen.Code, §§ 1291, 1490.

Petitioner in the instant cases is constitutionally entitled to enlargement on bail and that bail must not be excessive in amount (Const. art. I, § 6), although primarily discretion as to the amount of bail is vested in the trial court. In re Brumback, 46 Cal.2d 810, 813, 299 P.2d 217. The absolute right to bail extends to the pendency of an appeal after judgment imposing imprisonment in cases of misdemeanor. Pen. Code, § 1272, subd. 2. Thus, Newbern had the constitutional and statutory right to be released on a reasonable bail as to all charges with which we are here concerned. The only permissible purpose of such bail, whether before or after conviction, is 'practical assurance that defendant will attend upon the court when his presence is required.' In re Brumback, supra, 46 Cal.,2d 810, 813, 299 P.2d 217, 219. See also In re Petersen, supra, 51 Cal.2d 177, 181, 331 P.2d 24; Pen.Code, § 1273. To attain that end without at the same time effectively negating what is a constitutional right by a bail excessive in amount the magistrate charged with setting the bail is to consider 'the seriousness of the offense charged, the previous criminal record of thd defendant, and the probability of his appearing at the trial or hearing of the case.' Pen.Code, § 1275. Bail may not be used as a punishment of the defendant. Sawyer v. Barbour, 142 Cal.App.2d 827, 833, 300 P.2d 187.

We cannot agree with the petitioner's contention that, in view of the foregoing rules of law, the bail pending appeal in each of the December 1958 and March 1959 cases was illegally high. When petitioner appeared in an obviously intoxicated condition, thereby requiring a postponement of proceedings and a waste of the court's time, it was within the court's province to fix bail in an amount which would not only give 'practical assurance that defendant will attend upon the court when his presence is required', but also that he would attend in a state of sobriety such as would permit the court to dispose of the matters then pending. The judge had reasonable cause to believe, in view of petitioner's demonstrated alcoholic proclivities, that he might again become intoxicated and not appear, or appear in an intoxicated condition, unless the bail set was sufficiently large. The court could also properly consider that although petitioner may physically appear, the fact that he was appearing in propria persona would deter proceedings therein to a greater extent than had he been represented by sober counsel. In view of the foregoing we perceive no abuse of the primary discretion vested in the trial judge in fixing bail at $500 in each of the December 1958 and the March 1959 cases. Furthermore, there is no demonstrated abuse of discretion in continuing the bonds in that amount after the 180 day sentences were reimposed, as bail pending appeal. The same conditions prevailed as before sentencing, and in addition petitioner had been convicted and was then facing almost a year in jail.

As stated, the petitioner also contends that in the April 1960 case the fixing of bail pending trial at $100, after first being released on his own recognizance, was an abuse of discretion. It must be remembered, that bail was set in this case after the petitioner appeared in an intoxicated condition before the same judge in the December 1958 and the March 1959 cases, had later been sentenced, and was then confined for want of bail on appeal in those cases. The factors affecting the probability that the petitioner would appear for trial in a sober condition, if released on bail, would appear to be similar to those already considered in the December 1958 and March 1959 cases. It is not necessary, however, that we determine the propriety of refixing the bail at $100 in the April 1960 case. It appears that the petitioner has pleaded guilty in that case and has been given a suspended sentence. The question of bail pending trial is, therefore, moot, as is also the petitioner's further contention that the trial judge lacked jurisdiction to make the order setting bail.

Petitioner's final contention that he was improperly denied an opportunity to make a telephone call to a bail...