MARO v. <<

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

Ex parte MARO.

Cr. 2835.

Decided: September 30, 1952

A. E. Bagshaw, San Rafael, for respondent. Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., for appellant.

The warden of San Quentin, where petitioner Maro is incarcerated, appeals from an order made in a habeas corpus proceeding, directing the Authority to grant to Maro a hearing for the purpose of considering and fixing his term of imprisonment, and for the further purpose of determining if and when he may be released on parole. The challenged order did not discharge the petitioner but, in fact, expressly remanded him to the custody of the warden. The basic question that must be determined before the appeal can be considered on its merits is whether the order appealed from is an appealable order. We are convinced that it is not.

Maro is admittedly a second offender. The Adult Authority, by rule, has provided that they will not grant an initial calendar appearance for a second offender to consider fixing the term of his sentence or to consider when such second offender shall be eligible for parole until eighteen months after his commitment,1 although, under the pertinent provisions of the Penal Code, §§ 3021 and 3041, the Authority is empowered to fix the terms of second offenders and to parole them after they have served six months. On the merits, the basis question involved is the validity or invalidity of that rule. The Superior Court determined that the rule was invalid and void, that there was no other plain, speedy or adequate remedy, and, in the habeas corpus proceeding, issued the following order:

‘1) That the Adult Authority of the State of California, within a reasonable time and without unnecessary delay, give to the said Louis Maro a hearing for the purpose of considering and fixing the term of imprisonment of the said Louis Maro under said commitment, and for the further purpose of determining if and when the said Louis Maro may be released upon parole;

‘2) That said Louis Maro be remanded to the custody of the Warden of said penitentiary under said commitment and for further proceedings in conformity with this order.’

This order, considered as one entered in a habeas corpus proceeding, is not appealable. In California for many years rulings made on habeas corpus were not appealable at all. Then in 1927 section 1506 of the Penal Code was added making a final order of the Superior Court in a habeas corpus proceeding ‘discharging a defendant after his conviction, in all criminal cases prosecuted by indictment or information’ appealable. This section was broadened in 1951, Stats. of 1951, Chap. 1275, p. 3168, so as to make appealable orders of the Superior Court in habeas corpus proceedings ‘discharging a defendant after his conviction, in all criminal cases'.

As already pointed out, prior to 1927, orders made in habeas corpus proceedings were not appealable. Modern Barber Col. v. Cal.Emp.Stab.Com., 31 Cal.2d 720, 728, 192 P.2d 916; Matter of Zany, 164 Cal. 724, 726, 130 P. 710; Matter of Hughes, 159 Cal. 360, 366, 113 P. 684; Ex parte White, 2 Cal.App. 726, 727, 84 P. 242. After the amendment of section 1506 of the Penal Code in that year, it was held, and properly so, that the right of appeal in habeas corpus proceedings was limited to those cases mentioned in the section. In re Cunha, 123 Cal.App. 625, 637, 11 P.2d 902, 18 P.2d 979; In re Page, 19 Cal.App.2d 1, 4; Cunha v. Superior Court of Alameda County, 217 Cal. 249, 251, 18 P.2d 340; In re Page, 214 Cal. 350, 354, 5 P.2d 605; People v. Schunke, 102 Cal.App.2d 875, 877, 228 P.2d 620; In re Alpine, 203 Cal. 731, 744, 265 P. 947, 58 A.L.R. 1500; In re Bruegger, 204 Cal. 169, 170, 267 P. 101; Rose v. Superior Court, 86 Cal.App.2d 173, 178, 194 P.2d 568; Thuesen v. Superior Court, 215 Cal. 572, 576, 12 P.2d 8; Loustalot v. Superior Court, 30 Cal.2d 905, 913, 186 P.2d 673; In re Merwin, 108 Cal.App. 31, 33, 290 P. 1076. All of the above cases dealt with what constituted ‘a conviction’ after prosecution ‘by indictment or information’ as those terms were used in section 1506 as added in 1927. Under the 1951 amendment to the section the right of appeal by the state has been extended to all orders ‘discharging a defendant after his conviction’ in all criminal cases. But the order must still be one ‘discharging’ a defendant. While the word ‘discharge’ may and should be broadly and liberally construed to carry out the purposes of the amendment, In re Larabee, 131 Cal.App. 261, 21 P.2d 132, it still is the law that before an order in a habeas corpus proceeding is appealable it must directly or indirectly ‘discharge’ the defendant from custody. No matter how broadly or liberally the order here involved be construed, it is obviously not an order ‘discharging’ or even affecting the custody of respondent—in fact, the order remands respondent to the custody of the warden. All the order does is to require the Authority to grant to respondent a hearing, with complete discretion in the Authority to fix respondent's term and to determine when, if ever, he should be paroled. For these reasons, it is quite apparent that the order here involved, considered as one made in a habeas corpus proceeding, does not fall within section 1506, and is therefore not appealable.

In an attempt to avoid the conclusion that the appeal must be dismissed for the foregoing reasons, the appellant argues, in effect, that in recent years the courts have extended the scope of habeas corpus beyond its traditional use of securing a discharge from an illegal custody, and have used it to grant rights to prisoners short of effecting a discharge. Cases such as In re McVickers, 29 Cal.2d 264, 176 P.2d 40, and In re Seeley, 29 Cal.2d 294, 176 P.2d i4, are cited, where the Supreme Court used habeas corpus to test the habitual criminal status of petitioners, and, although the petitioners there involved were remanded to the custody of the warden, the court declared the rights of the petitioners in the matter of sentences to be served at a time when such sentences had not yet expired. These cases undoubtedly represent an extension of the use of the writ of habeas corpus. It is urged that since this extension was the result of judicial action, the courts should now hold that orders in habeas corpus in this field, by simple judicial fiat, are appealable. But, because the courts may have extended the use of the writ, it does not follow that the courts should judicially legislate and declare orders made in such cases appealable. There is a long history of nonappealability in such cases predicated upon a strong public policy to protect petitioners from the delay incident to an appeal by the state. This policy was declared in Ex parte White, 2 Cal.App. 726, 731, 84 P. 242, 244, as follows: ‘The delay which might and generally would attend the appeal would in many cases work a denial of the very object of the writ, which is to secure the present discharge of the prisoner, and in most cases the value of this bulwark of personal liberty would be so impaired as to lose the distinctive character and office with which it has been clothed ever since King John met the Barons at Runnymeade in 1215, and instead of being the safeguard of human liberty it might become a means of oppression.’ That policy is certainly applicable to the facts of the present case where petitioner had to wait six months after his commitment before he could file this writ. With the normal delays in the Superior Court, and because of the delay incident to this appeal, the full eighteen months provided in the challenged rule may almost have expired before this decision becomes final. Certainly, sound principles of administration of justice not only suggest but compel the conclusion that if there is going to be any further extension of the right of appeal in habeas corpus proceedings, such extension must come from the Legislature and not from the courts.

The last contention of the state is that the order here involved compelling, as it does, the Authority to grant petitioner a hearing, although made in a proceeding purportedly in habeas corpus, was, in legal effect, an order in mandamus, and is therefore appealable. The state relies on the general rule that regardless of what the petitioner calls his application for a writ, the court will treat it as an application for a proper writ if one would lie.

Certain facts should here be mentioned. In the trial court all concerned, that is, the court and counsel on both sides, treated this proceeding as one in habeas corpus. Rightly or wrongly, the trial court and counsel believed that the proceeding involved was one in habeas corpus. The writ that was issued was one in habeas corpus. The state at no time, in the court below, ever raised the question of the propriety of the remedy, or ever mentioned mandamus as a possible remedy. The contention was never made by the state until in this court the question arose concerning the state's right to appeal. Moreover, the petition alleged that Maro had applied to the Adult Authority for permission to file a writ of mandate but that board had refused to restore Maro's civil rights to that extent.

At the inception of this argument that this proceeding is in fact mandamus and not habeas corpus there arises the most interesting question of whether an inmate of a state's prison whose civil rights, except in certain respects not here pertinent, have been suspended during his incarceration, Penal Code, § 2600, may file a petition for a writ of mandate without the restoration of that civil right by the Adult Authority.

It would appear that acting as a plaintiff in a civil suit is one of the civil rights that is suspended during incarceration for a felony. That is the general rule elsewhere (see cases collected 18 C.J.S., Convicts, p. 105, § 7), is the clear implication of the code section, and seems to be supported by the implications of the available case law. Castera v. Superior Court of Los Angeles, 29 Cal.App. 694, 159 P. 735; Estate of Donnelly, 125 Cal. 417, 58 P. 61; In re Bagwell, 26 Cal.App.2d 418, 79 P.2d 395; Hall v. Hall, 98 Cal.App.2d 209, 219 P.2d 808; see discussion 34 Cal.L.Rev. 167, 177; 2 Cal.L.Rev. 401; 5 Cal.L.Rev. 81.

It is true that there are cases where a prisoner in the state prison has been permitted to file a petition for a writ of mandate, see Roberts v. Duffy, 167 Cal. 629, 140 P. 260; In re Harris, 80 Cal.App.2d 173, 181 P.2d 433, but in those cases the question of suspension of civil rights was not raised or discussed. It is, therefore, extremely doubtful whether mandamus was available to Maro in the present proceeding.

However, even if petitioner's right to file a civil suit was not suspended, and if mandamus is a remedy that petitioner could have used to secure the relief here granted, there can be no doubt that in California habeas corpus is also an appropriate and, at least, a concurrent remedy. At common law habeas corpus would only lie to effect an immediate discharge of one illegally held in custody. This common law rule became the rule in the federal courts of this country. McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238. There the Supreme Court of the United States held that habeas corpus would not lie in a situation somewhat similar to the one here involved, and indicated that mandamus would be the proper remedy. That court came to the conclusion that habeas corpus could only be employed where the discharge of the prisoner or his admission to bail was the immediate relief sought. Some state courts have followed the McNally rule and limited habeas corpus accordingly. Ex parte Shepley, Nev., 202 P.2d 882, and cases there cited.

But these limitations do not apply in California. In the cases of In re McVickers, 29 Cal.2d 264, 176 P.2d 40, and In re Seeley, 29 Cal.2d 294, 176 P.2d 24, the Supreme Court held that habeas corpus was properly used to test the habitual criminal status of prisoners. In those cases the Supreme Court declared the rights of the petitioners in the matter of sentences to be served, although the minimum sentences had not yet expired. In other words, petitioners there were not entitled to be freed from custody under any theory, and in fact, were, as here, expressly remanded to custody. The state, on the oral argument of the instant case, sought to distinguish these cases by the claim that they involved at least attacks upon the judgments of conviction, and that the Supreme Court only intended to extend the rule to this extent. In the present case no attack is made upon the judgment.

The state has misinterpreted the two cases. The judgments of conviction were not under attack in those cases, and the Supreme Court so stated. In the McVickers case, 29 Cal.2d 264, 270, 176 P.2d 40, 44, it is declared:

‘It is important to note that petitioner here raises no question as to the validity or correctness of a judgment of conviction. His attack is directed only against a determination of facts on which depend the length of time during which he can be legally imprisoned and the possibility of his being released on parole.

‘The so-called adjudication of habitual criminal status is not and cannot be an element of adjudicated guilt, nor is it, properly speaking, a part of the judgment of conviction.’ (The italics are those of the Supreme Court.)

Again, 29 Cal.2d at page 271, 176 P.2d at page 45, the court concluded as follows: ‘It is, therefore, obvious that a determination of habitual criminal status, even though referred to as an adjudication, does not involve the validity or finality of a judgment of conviction, as such, but relates only to the length of the term of imprisonment and the right to parole, and, hence an attack on the adjudication of habitual criminal status is not an attack on the judgment of conviction.’

In the Seeley case, decided the same day as the McVickers case, the majority of the court not only followed the McVickers case, but expressly recognized that by these cases the court was broadening the use of the writ of habeas corpus, and pointed out that ‘in exceptional cases it [habeas corpus] may be issued even though other remedies might have been available.’ 29 Cal.2d at page 296, 176 P.2d at page 26. The court then gave the following explanation of how it reached its conclusion that habeas corpus was the proper procedural vehicle to use in such cases 29 Cal.2d at page 302, 176 P.2d at page 29: ‘The petitioner has met the burden of showing that the sentence imposed on him was unauthorized in part and excessive; but it does not follow that he is entitled to his discharge. The rule is settled in this state in accord with the weight of authority that ‘where a court has jurisdiction of the person and of the crime, the imposition of a sentence in excess of what the law permits does not render the legal or authorized portion of the sentence void, but leaves only such portion of the sentence as may be in excess open to question and attack. * * *’ * * * the petitioner has failed to show that he is entitled to his release at this time. The proper course to pursue is for the constituted authority to refix the sentence of the petitioner in accordance with the declaration of his rights as stated in this opinion.'

These cases allow what is, in legal effect, a declaratory judgment of a prisoner's rights upon habeas corpus, while expressly noting that a ‘discharge’ was not involved. See, also, In re Bramble, 31 Cal.2d 43, 187 P.2d 411.

That the Supreme Court did not intend that these cases were to be limited to their peculiar facts is illustrated by later developments. In the case of In re Collie, 38 Cal.2d 396, 240 P.2d 275, the writ of habeas corpus was held a proper remedy to test the validity of a commutation of the death sentence to lief without the possibility of parole. Although the writ there was denied on its merits, the court stated, 38 Cal.2d at page 397, 240 P.2d at page 275: ‘Since the commutation states that petitioner ‘shall never be eligible for parole,’ it acts as an immediate restraint on him and prevents him from applying for parole, as may ordinarily be done after seven years' confinement by a prisoner * * * serving a life sentence. See Pen.Code, § 3046. The writ of habeas corpus, therefore, is a proper remedy to determine whether the condition which purports to deprive petitioner of the right to seek parole is valid.'

There is language in other cases that indicates that mandamus may be a concurrent remedy. In Green v. Gordon, 39 Cal.2d 230, 246 P.2d 38, 39, a writ of mandate was brought against the Adult Authority to compel it to consider petitioner's application for parole. In a footnote on page 242, in explaining that mandate was a proper remedy, the court made the following observation: ‘Although habeas corpus may be used to test the validity of the terms of a commutation, In re Collie, 38 Cal.2d 396 [397–398], 240 P.2d 275, a petitioner may also use mandate to compel the Adult Authority to entertain an application for parole if it has wrongfully refused to pass on the application.’

Some language somewhat inconsistent with this holding is to be found in Phyle v. Duffy, 34 Cal.2d 144, 208 P.2d 668. In that case the court split three ways (there is no majority opinion) upon the proper remedy to test the determination of the superintendent of a state hospital that a condemned defendant had returned to sanity. Three of the justices, including the author of Green v. Gordon, supra, concurred in the following statement of the law, 34 Cal.2d at page 152, 208 P.2d at page 673: ‘The normal method of reviewing the legality of a prisoner's detention is by writ of habeas corpus [citing authorities], and where habeas corpus is available and adequate it is the exclusive remedy and mandate will be denied. [Citing authorities.]’

There are some other cases indicating the broad extension made by the California courts to the writ of habeas corpus. In two recent cases prisoners attempted to file writs of mandate and quo warranto with the appellate court, but the Adult Authority denied them permission to do so. Habeas corpus was brought to test the validity of this refusal. In both cases habeas corpus was held to be the proper remedy. In re Robinson, 112 Cal.App.2d 626, 246 P.2d 982, and In re Malone, 112 Cal.App.2d 631, 246 P.2d 984. In the Robinson case, 112 Cal.App.2d at page 630, 246 P.2d at page 984, the court stated: ‘We conclude therefore, that the petitioner had the right to have his so-called Petition for Writ of Mandate forwarded to the District Court of Appeal for filing and that any interference with that right to that extent unlawfully restrained him of his liberty and entitles him to the writ of habeas corpus.’

One of the cases there cited to support this unusual use of habeas corpus is In re Rider, 50 Cal.App. 797, 195 P. 965, where habeas corpus was used to compel a superintendent of a juvenile hall to allow an inmate the right to interview her lawyer. In coming to the conclusion that the use of habeas corpus had been extended in this state beyond its traditional limits, the appellate court concluded that deprivation of the right to interview the lawyer was a ‘restraint’ on liberty as such term is used in section 1473 of the Penal Code. That section provides: ‘Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint.’ The court stated 50 Cal.App. at page 801, 195 P. at page 966: ‘We think that a person may be said to be * * * ‘restrained of his liberty,’ so as to be entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which, even in his confinement, he is lawfully entitled under the Constitution or laws of this state or the United States, the deprivation whereof serves to make his imprisonment more onerous than the law allows, or curtails, to a greater extent than the law permits even in his confinement, his freedom to go when and where he likes.'

Reference should also be made to In re Ochse, 38 Cal.2d 230, 238 P.2d 561, where habeas corpus was used to direct a sheriff to permit a criminal defendant to have a private examination by her own doctor in preparation for her defense to a murder charge.

The only case that we have found that is inconsistent with these cases is In re Weintraub, 61 Cal.App.2d 666, 143 P.2d 936, where the appellate court held that habeas corpus was an inappropriate remedy to raise the question of the failure of the prison board to determine the petitioner's term. This holding was criticized in the case of In re Harris, 80 Cal.App.2d 173, at page 181, 181 P.2d 433, at page 438, where this court pointed out, in discussing the Weintraub case, that ‘habeas corpus has been used for similar purposes'. The Weintraub case is inconsistent with later cases and its holding must be deemed to have been overruled.

From this analysis of the cases it is apparent that California has extended the use of habeas corpus far beyond its common law use. It is also apparent that the courts of this state have used habeas corpus as a procedural vehicle to secure for those lawfully in custody, rights (such as the right to a hearing before the Adult Authority) which have improperly been denied to them. Whether mandate could be used for the same purpose need not here be determined. At most, it is a concurrent remedy. Here habeas corpus was used, and, under the cases, this was a proper remedy. Since the order does not ‘discharge’ the petitioner from custody, it is no appealable, and the purported appeal therefrom should be and therefore is dismissed.


1.  This rule was first adopted in 1949 when section 3045 of the Penal Code prohibited paroles for second offenders until they had served two years. In 1951 this prohibition was removed by an amendment to section 3045. In January, 1952, the Authority continued the eighteen months' prohibition by an amendment to the rule.

PETERS, Presiding Justice.

BRAY and FRED B. WOOD, JJ., concur.

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