Wood v. Superior Court

• Decision Date: 11 January 1974
• Citation: 36 Cal.App.3d 811,112 Cal.Rptr. 157
• Court: California Court of Appeals Court of Appeals
• Parties: Roland W. WOOD, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent; Dow J. BYERS et al., Real Parties in Interest. Civ. 12881.

Page 157

112 Cal.Rptr. 157

36 Cal.App.3d 811

Roland W. WOOD, Petitioner, v. SUPERIOR COURT, etc., COUNTY OF SAN DIEGO, Respondent Dow J. BYERS et al., Real Parties in Interest.

Civ. 12881.

Court of Appeal, Fourth District, Division 1, California.

Jan. 11, 1974.

As Modified Jan. 21, 1974.

[36 Cal.App.3d 812] Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Doris H. Maier, Asst. Atty. Gen., Harley D. Mayfield and Karl J. Phaler, Deputy Attys. Gen., for petitioner and respondent.

Dennis E. Holz, Michael B. Weisz, Legal Aid Society of San Diego, Inc., San Diego, and William A. Davis, Riverside, for real party in interest Dow J. Byers.

OPINION

GERALD BROWN, Presiding Justice.

Roland W. Wood, superintendent of California Rehabilitation Center, presently has custody of a prisoner, Dow J. Byers. Wood petitions for a writ to restrain the superior court from enforcing an order directing him to turn over custody of Byers to the San Diego County Sheriff.

Byers was convicted by a jury of grand theft, fraudulent offers and sale of securities, failure to obtain permits for syndicate offer and other related crimes. His applications and renewed applications for bail pending appeal have been denied.

The real parties in interest Roland W. Allen, William Terry and many others with whom Byers had financial involvements which were the subject of the criminal proceedings, brought civil actions against him for fraud. In superior court Byers contended he is indigent and cannot afford counsel to represent him in the pending civil actions. He argued his presence is necessary for a proper defense to explain the numerous, complex financial transactions in which the real parties in interest and he were involved. Based on his showing of indigency and necessity, the superior court granted his motion and ordered Wood to deliver Byers to the San Diego County Sheriff's custody.

This order was unauthorized, beyond the court's power and in excess of its jurisdiction.

The court relied on Penal Code section 1567, as the basis for its order. This section provides in part:

'When it is necessary to have a person imprisoned in the State prison brought before any court, . . . an order for that purpose may be made by the court and executed by the sheriff of the county where it is made . . ..'

This section only 'prescribes the manner of procuring (the prisoner's) presence . . ..' (Willard v. Superior Court, 82 Cal. 456, 461, 22 P. 1120, 1122.) Other statutes describe the situations in which his attendance may be ordered.

Penal Code sections 2620 and 2621 respectively provide the procedure for obtaining the attendance of a witness when he is to be tried and when he is a material witness in criminal actions. Section 2623 states if a witness in a civil action is a prisoner, the court in which the action is pending (if it is a superior or appellate court) may make 'an order for his examination in the prison by deposition . . .' Section 2622 describes the procedure for accomplishing this.

No provision expressly deals with prisoners as parties. Nevertheless, the case law is clear.

In re McNally, 144 Cal.App.2d 531, 532, 301 P.2d 385, states:

'One imprisoned is still liable to be sued, and 'this liability necessarily carries with it the right to defend.' (People v. Lawrence, 140 Cal.App.2d 133, 295 P.2d 4.) This right is qualified by the rule that the prisoner is not entitled to be personally present at any part of the proceedings. (People v. Lawrence, Supra; In re Bagwell, 26 Cal.App.2d 418, 420, 79 P.2d 395.)'

Although Byers has the right to employ counsel to defend him (In...