Osslo, In re, Cr. 6295

CourtUnited States State Supreme Court (California)
Citation334 P.2d 1,51 Cal.2d 371
Docket NumberCr. 6295
Parties, 36 Lab.Cas. P 65,113 In re Max OSSLO and Arthur L. Meyer on Habeas Corpus.
Decision Date23 December 1958

Charles P. Scully, San Francisco, and Thomas Whelan, San Diego, for petitioners.

Edmund G. Brown, Atty. Gen., William E. James, Asst. Atty. Gen., James Don Keller, Dist. Atty., and Claude B. Brown, Deputy Dist. Atty., San Diego, for respondent.

SCHAUER, Justice.

By application for habeas corpus petitioners Osslo and Meyer ask that they be relieved of the assertedly illegal restraint of probation orders and that the superior court be required to revoke probation and to sentence petitioners. 1 The superior court determined that petitioners had 'accepted probation' and that the court would not 'release them from it.' We have concluded that petitioners could disavow probation and demand sentence.

On August 9, 1956, a jury found petitioners guilty of conspiracy to commit assault and of assault by means likely to produce great bodily injury. As is recounted in People v. Osslo (1958), 50 Cal.2d 75, 323 P.2d 397, petitioners are butchers' union officials and the offenses were related to a jurisdictional dispute between petitioners' union and a clerks' union. The physical acts of violence constituting the assault were committed not in person by petitioners but by members of a sailors' union (a union not involved in the jurisdictional dispute) who had been hired by the butchers' union to aid it in that dispute. The condition of probation which resulted in the present controversy requires that petitioners give up their union offices.

On August 27, 1956, the trial court in passing upon petitioners' application for probation stated, 'Now, although I am going to grant these defendants probation, of course probation is a privilege and they are going to have to comply with it. If they don't like the terms, of course they don't have to accept probation. When I get through here, I want you to tell me. You can confer with your clients and tell me whether you want to accept probation.' (Italics added.) The trial court then stated the conditions upon which it proposed to grant probation. Neither petitioners nor their counsel said anything in open court as to acceptance or rejection of probation. Petitioners were placed in the custody of the sheriff.

As to each petitioner the probation orders of August 27, 1956, provided, among other things, as follows: that imposition of sentence was suspended for ten years: that petitioner be confined (Osslo for six months, Meyer for three months) in a county adult detention facility; that petitioner pay a fine (Osslo $1,500, Meyer $750) from his own funds in monthly installments of $50, the first installment to become due within 60 days from petitioner's 'release from custody'; that petitioner annually, on or about December 31, file with the probation officer on a form approved by the court, an affidavit that the payments 'have come from his own funds and not from monies received or solicited from any Union or its members'; that 'during the period of his probation (petitioner) shall not holds any position * * * in, or receive any remuneration from, any union'; that 'effective such date as this judgment may become final, (petitioner) shall resign any (union) position'; and that 'this * * * Judge shall retain jurisdiction of this matter throughout the said period of probation and no other * * * Judge shall modify this order without notice to the Judge who tried the case.' Petitioners at once appealed to the District Court of Appeal.

On August 29, 1956, there was filed in the superior court a form of affidavit and an order of the trial judge that during probation the probationers shall sign such an affidavit 'during * * * January of each year, or more often, if requested.' This form of affidavit states, among other things, that affiant has received no funds from any union or union member for the purpose of paying his fine, and 'That in accordance with the terms of probation affiant has held no * * * office in any * * * Union since September 1, 1956, and that all offices held prior to said date by affiant have been terminated by resignation.'

On September 13, 1956, this court on an application for habeas corpus ordered petitioners' release on bail. On their appeal in the District Court of Appeal (People v. Osslo (Cal.App.1957), 310 P.2d 1020, 1030-1031) and thereafter in this court (which granted a hearing after the decision on appeal by the District Court of Appeal) petitioners unsuccessfully urged that the trial court was without power to require, as a condition of probation, that they should not hold any union position or receive remuneration from any union. This court ordered that the provision of the probation orders by which the individual trial judge purported to retain jurisdiction of the cause be stricken; in all other respects the orders were affirmed. (People v. Osslo (1958), supra, 50 Cal.2d 75, 103, 104(29-32), 323 P.2d 397, 412, 413; rehearing denied.)

Petitioners sought certiorari in the United States Supreme Court. On April 28, 1958, this court denied their application for stay of execution of judgment pending the application for certiorari. On April 29, Mr. Justice Douglas of the United States Supreme Court granted bail. On June 9, 1958, the federal supreme court denied certiorari (357 U.S. 907, 78 S.Ct. 1152, 2 L.Ed.2d 1157) and terminated petitioners' release on bail as of June 23, 1958.

On June 18, 1958, petitioners gave notice that on June 23 they would move the trial court for an order 'modifying the judgment * * * and modifying the Order admitting (peititioners) to probation.'

On June 23, 1958, petitioners for the first time expressed to the trial court their desire to reject probation. They moved for sentence as misdemeanants 2 and urged that 'imposition of a substantial fine would serve the interests of justice.' When this motion was denied, petitioners explained that they believed that 'honor requires that (they) not give up (their) right to employment by a union,' and moved that the court 'withdraw the order for probation, and if * * * sentence cannot be made a misdemeanor that * * * your Honor pronounce judgment.' The court denied this motion and the further motion for modification of the conditions of probation to permit union employment.

The trial court based its denial of petitioners' motions upon the following stated grounds: 'I can't in good conscience make it a misdemeanor' because codefendants of petitioners (the members of the sailors' union employed by petitioners) had been sentenced to state prison and were serving their sentences. 'Levying a fine in a case of this kind is useless' because the fine would be paid by assessment of union members. 'I think it is going to be conducive to peace in the labor movement if these officials have to control their actions to such an extent that they don't become involved with the Penal Code * * * They are responsible to the criminal courts and * * * if they know it and it is certain if they are convicted they won't be turned loose and have the matter made a misdemeanor, I think we will have peace in the labor movement.' If petitioners 'didn't want to accept' probation when the probation orders were made, they 'should have told me so and I would have sentenced (them) at that time. So they have accepted probation * * * (for the 22 months which had elapsed since the making of the probation orders) and I am not going to release them from it.' Petitioners were remanded to the custody of the sheriff. 3

Habeas corpus is a proper remedy to effect the relief sought by petitioners; i. e., release from the restraint of the probation orders and remand of petitioners to the superior court for sentence. (Pen.Code § 1484 (on habeas corpus the court must dispose of petitioner 'as the justice of the case may require'); Pen.Code, § 1493 ('In cases where any party is held under illegal restraint or custody, or any other person is entitled to the restraint or custody of such party, the judge or court may order such party to be committed to the restraint or custody of such person as is by law entitled thereto'); In re Stoliker (1957), 49 Cal.2d 75, 78(3), 315 P.2d 12; In re Bartges (1955), 44 Cal.2d 241, 247-248(5-7), 282 P.2d 47; In re McCoy (1948), 32 Cal.2d 73, 76-77(4), 194 P.2d 531.) 4

Respondents point out that petitioners have appealed to the District Court of Appeal from the order of June 23, 1958, and urge that appeal is the proper remedy. The order is probably appealable as an order made after judgment affecting the substantial rights of petitioners. (See In re Bine (1957), 47 Cal.2d 814, 817(6), 306 P.2d 445.) However, since the question of the appealability of such an order has never been decided, since the order to show cause has issued in this proceeding, and since petitioners have a vital interest in having sentence imposed as soon as possible, we shall in this proceeding consider petitioners' right to refuse probation.

The appellate courts of this state have had occasion repeatedly to emphasize that a defendant has no right to be granted probation; probation is a privilege, an act of grace or clemency. (E. g., In re Davis (1951), 37 Cal.2d 872, 874, 236 P.2d 579; In re Trombley (1948), 31 Cal.2d 801, 811(9), 193 P.2d 734; cases collected in West's Ann.Pen.Code (1956), § 1203, note 3, pp. 310-311, § 1203.1, note 3, p. 337.) It now becomes necessary to emphasize that a defendant has the right to refuse probation, a right of which he cannot lightly be deprived.

The trial court apparently was of the opinion that petitioners' right to reject probation was affected by their failure to seek a stay of execution of the probation orders pending the appeal, for the trial court at the hearing of June 23, 1958, inquired why petitioners 'didn't ask for a stay of the probation proceedings so that they wouldn't be governed by the probation...

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