Young, In re

• Decision Date: 03 May 1973
• Docket Number: Cr. 11080
• Parties: In re Richard Earl YOUNG, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

Page 915

107 Cal.Rptr. 915

32 Cal.App.3d 68

In re Richard Earl YOUNG, on Habeas Corpus.

Cr. 11080.

Court of Appeal, First District, Division 4, California.

May 3, 1973.

Rehearing Denied May 31, 1973.

Robert W. Peterson, School of Law, University of Santa Clara, Santa Clara, for petitioner.

Evelle J. Younger, Atty. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Crim. Div., Doris H. Maier, Asst. Atty. Gen., Gloria F. DeHart, Ina Gyemant, Deputy Attys. Gen., San Francisco, for respondent.

GOOD, Judge.

On June 25, 1971, petitioner was convicted of violating Health and Safety Code section 11531 (marijuana sale) and sentenced to prison for the term prescribed by law. He had been arrested on April 29, 1971, and entered a plea of guilty on June 9. On June 29, he was received by the Department of Corrections (hereinafter 'Corrections'). His petition for habeas corpus alleges that he was confined in the county jail of Santa Clara County during the 62 days between his arrest and delivery to Corrections because, by reason of indigency, he was unable to post the $6,250 bail ordered. The conviction carries a minimum term of three years before eligibility for parol. Under Penal Code section 2900, the term commences upon actual delivery of defendant into the custody of Corrections. Section 2900.5, added to said code by Statutes of 1971, chapter 1732, section 2, and effective March 4, 1972, provides that pretrial or probationary jail time shall be credited to a minimum prison term but expressly excepts prisoners delivered to Corrections prior to its effective date. Petitioner's delivery to Corrections was prior to the effective date of said statute.

When petitioner first discovered that his presentence jail time was not a credit against the minimum term, he filed a notice of appeal in the Santa Clara County Clerk's office on July 9, 1971, four days late. The appeal was never perfected. Respondent contends that petitioner's failure to appeal precludes consideration of his petition because of the rule that 'habeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment of conviction.' (In re Dixon (1953) 41 Cal.2d 756, 759, 264 P.2d 513, 514 (emphasis added); In re Black (1967) 66 Cal.2d 881, 886--887, 59 Cal.Rptr. 429, 428 P.2d 293.) It is conceded that the issue raised by the petition is a proper basis for appeal. But two special circumstances appear in the record herein that preclude our dismissal of the petition because the issues could have been resolved upon appeal. First, there is presented 'a constitutional question of extraordinary importance' (In re Antazo (1970) 3 Cal.3d 100, 107, 89 Cal.Rptr. 255, 259, 473 P.2d 999, 1003) by petitioner's contention that deprivation of presentence jail time results in a denial of his constitutional right to equal protection of the law. Second, petitioner's attempt to appeal was thwarted, at least in part, by the Santa Clara County Clerk's failure to comply with Rule 31(a), California Rules of Court, requiring a clerk, whenever a tardy notice of appeal is received, to advise the party that his notice 'was received but not filed . . . and that he may petition the reviewing court for relief by verified statement or declaration under penalty of perjury, setting forth the date of the order or judgment from which the party seeks to appeal, the steps which the party took to file his notice of appeal on time, and any other information which has, or which the party believes has, a bearing upon the circumstances which caused the notice of appeal to arrive late.' The clerk is thus under a duty to direct a prospective appellant not only where but also the manner by which a late appeal may be perfected. Here, the clerk, under date of July 9, 1971, merely wrote: 'This is to inform you that your Notice of Appeal was received and not filed by this Office this date. Your notice was not timely, therefore your only remedy lies with the Court of Appeals in San Francisco, California.' This terse note is obviously not a compliance with Rule 31(a). The absence of appeal does not deprive petitioner of his right to habeas corpus relief or preclude our consideration of the issues raised by his petition.

Petitioner contends that 'denial of credit for pre-sentence incarceration (which was) due solely to petitioner's indigency is an invidious discrimination based on poverty in violation of the Equal Protection and Due Process Clauses of the 14th Amendment to the United States Constitution and Article I, section 13 of the California Constitution.' It is argued that the denial of credit to the minimum term of imprisonment set by Health and Safety Code section 11531 for the 62 days' jail time elapsing between his arrest and delivery to Corrections, being due to his financial inability to furnish bail, results in an effective three years and sixty-two days minimum term of incarceration before he becomes eligible for parole and that this additional term would not be imposed on a defendant convicted for the same offense but who had the means to post bail and secure his liberty pending trial. He contends that only an indigent is assured of incarceration beyond the minimum term prescribed as punishment for the offense and only those unable to make bail suffer this consequence. No direct attack is made upon the constitutionality of California's bail laws, but it is argued that Penal Code section 2900 is necessarily unequal in application as between the poor who cannot afford bail and the rich who can. With emphasis supplied, he quotes from In re Antazo, supra, at page 108, 89 Cal.Rptr. at page 259, 473 P.2d at page 1003: 'It is this difference in the final treatment of each which petitioner attacks.'

No California cases appear to be directly in point on the constitutional issue. It has been held in People v. Rose (1940) 41 Cal.App.2d 445, 446, 106 P.2d 930, People v. Trippell (1937) 20 Cal.App.2d 386, 390, 67 P.2d 111, and In re Gough (1932) 124 Cal.App. 493, 496, 12 P.2d 968, that presentence incarcerations while awaiting trial and sentence cannot be considered as part of any judgment subsequently pronounced and are not embraced within the statutory penalty of the crime for which a defendant is sentenced. Petitioner's counsel recognizes the rule of these cases is at odds with petitioner's claim but argues that they have been rendered obsolete by Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 and its progeny ¹ and must be revaluated in their light.

Relying on Rose, Trippell, and Gough, supra, and without discussing the case authority discussed below other than referring to the dissenting opinion in the United States District Court's decision in Royster v. McGinnis (S.D.N.Y.1971) 332 F.Supp. 973, respondent argues that presentence incarceration is not punishment and the legislative determination of place of confinement for sentence and the term thereof is a proper and reasonable exercise of the Legislature's inherent power to define what constitutes crime and to prescribe punishment therefor.

We recognize that both proscribed conduct and prescribed punishment are essential to constitute a crime (People v. Crutcher (1968) 262 Cal.App.2d 750, 68 Cal.Rptr. 904) and that these are matters for legislative determination, courts having no discretion as to either aspect. (Keeler v. Superior Court (1970) 2 Cal.3d 619, 87 Cal.Rptr. 481, 470 P.2d 617; People v. Redmond (1956) 246 Cal.App.2d 852, 55 Cal.Rptr. 195.) But in the exercise of its function, the Legislature must conform to applicable constitutional limitations. The power to legislate does not, ipso facto, mean that a statute meets constitutional standards. The crucial question is not so much equality of sentence or punishment as such but whether or not the actual disparity in lengths of overall confinement of those convicted of the same offense who post bail and have no pre-sentence confinement and those who are financially unable to post bail and are consequently confined pending trial constitutes an invidious discrimination in violation of the Fourteenth Amendment of the United States Constitution or of article I, section 11 of the California Constitution that provides, 'All laws or a general nature shall have a uniform operation.'

In United States v. Gaines (2d Cir. 1971) 449 F.2d 143, 144, a defendant on probation pending sentencing on federal charges was arrested by state authorities in New York and could not make bail. He was detained in jail until the state charges were dismissed and he began serving the federal sentence. The court held he was entitled to credit against the federal sentence for the jail time served after bail had been set because his 'lack of wealth has resulted in his having to serve a sentence that a richer man would not have had to serve.' In Culp v. Bounds (W.D.N.C.1971) 325 F.Supp. 416, it was held that where a defendant is sentenced to maximum terms and the offenses were bailable, a state's refusal to credit an indigent's pre-sentence jail time to his sentence was an unconstitutional discrimination based on wealth because 'wealthy defendants . . . are able to remain out of prison (jail) until conviction and sentencing; the poor stay behind bars' (p. 419). The court found that no compelling governmental interest supported the difference in treatment and further noted that a recent North Carolina Supreme Court decision, State v. Virgil (1970), 276 N.C. 217, 172 S.E.2d 28, holding that 'while in custody in default of bond, defendant was not serving a sentence as punishment for the conduct charged' (p. 34), would render proceedings in the state's court ineffectual, and, therefore, petitioner was not required to exhaust available state remedies before invoking federal jurisdiction. ²...