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

PEOPLE of the State of California, Plaintiff and Respondent, v. David F. WILSON, Defendant and Appellant.

Cr. 14215.

Decided: October 29, 1975

John P. Cerny, San Francisco, for appellant. Benjamin R. Winslow, San Francisco, for appellant (under appointment by the court of appeal). Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Gloria F. Dehart, Patrick G. Golden, Deputy Attys. Gen., San Francisco, for respondent.

On April 4, 1975, following jury verdicts which had found him guilty of two counts of grand theft, imposition of sentence against defendant was suspended and he was placed on probation for a period of two years on conditions which included that he serve nine months in the custody of the sheriff of Santa Clara County with credit for seven days' time served.

He filed a notice of appeal April 28, 1975, in propria persona, while in custody. On May 13, 1975, his application for appointment of counsel was received and counsel was appointed the following day.

On May 12, 1975, the appellant addressed a letter to this court, with a copy to the trial judge reading in part, as follows: “The reason I am writing you and enclosing a copy to Judge Holden is to ask that I be granted reasonable bail pending the outcome of this appellate action. Although I myself am indigent, a private party has expressed willingness to put up bail money, if bail is set at a reasonable sum—say about $3,000. If bail cannot be set, then it becomes imperative that I talk with whoever is handling the matter. [¶] I am hopeful that this letter is the proper instrument for requesting bail. If not, your guidance and/or instructions in the matter will be greatly appreciated.” On May 14, 1975, he was advised to consult his attorney who had been appointed in the interim.

On July 14, 1975, the appointed attorney filed with this court an “Ex Parte Motion for Order Staying Execution of Sentence and Release on Bail Pending Appeal/Reimposition of Bail Status. Points and Authorities in Support Thereof.” In that application the appointed attorney stated on information and belief, on the basis of communications and mail communications with appellant and his trial attorney, that the appellant had asked for a stay of execution of sentence pending appeal (the record on April 4, 1975, fails to show that he requested more than a temporary stay to arrange his affairs); that appellant had already served between four and five months; that he was on a work release program; that he had a party available to put up not to exceed $3,000 in bail; and that the reporter's and clerk's transcripts had been delayed. (They were not filed until August 5.) On July 17, 1975, the application was denied without prejudice to making application in the trial court.

On July 21, 1975, appellant addressed this court and advised it that the appointed attorney had left on a 30-day vacation. On July 29, 1975, this court on its motion vacated the order of July 17, 1975, ordered the appellant released on reasonable bail to be fixed by the trial court pending determination of his application for bail pending appeal, issued an order to show cause why his application should not be granted, and appointed a second attorney to represent him in the bail matter. A declaration by that attorney indicates that the trial judge admitted appellant to bail upon his posting a surety bond in the sum of $1,500. He further states that he is informed by the court reporter and believes that an application for bail on appeal was made and denied on March 27, 1975.

It now appears from the record that appellant's application for bail to this court was faulty because he did not in fact first make proper application for bail to the trial court. (See Cal. Rules of Court, rule 32(b).)1 In view of the peculiar circumstances related above, and since the amount of bail has been fixed by the trial court, and because the issue of appellant's right to bail has been fully briefed we are not disposed to dismiss his application on procedural grounds.

In People v. Torres (1947) 80 Cal.App. 2d 579, 182 P.2d 573, this court observed: “On appeal from a judgment imposing imprisonment in a misdemeanor case, a defendant is entitled to bail as a matter of right. (Pen.Code, § 1272.) In each instance here the length of probation and the terms of imprisonment and fine were within those which could be granted in case of a misdemeanor conviction. It therefore appears from the record that for those purposes the court believed that the rights of society were well protected, and the ends of justice met, by treating each defendant as if he were convicted of a misdemeanor rather than of a felony. It would seem, therefore, that in the matter of bail on appeal it would be an abuse of discretion to treat them more harshly than they had been treated in the matter of probation and punishment, and more harshly than other men receiving the same probation and punishment, who as a matter of right must be admitted to bail on appeal, are treated. The mere fact that the crime with which they were convicted is a felony rather than a misdemeanor should not deprive them of the right to equal treatment as to bail on appeal with men equally treated as to probation and punishment.

“It is true that the statute makes bail on appeal in misdemeanor cases a matter of right, and in felony cases only a matter of discretion, and there will be many cases in which, because of the circumstances or because of additional terms in the probation order, it may be inadvisable to admit the defendant to bail on appeal, even though the length of the probation term and the conditions thereof as to incarceration are within the limits of a misdemeanor case. Here, however, there are no additional terms of probation, and the action of the court indicates that in its judgment no severity greater than that imposed in misdemeanor cases should be imposed.” (80 Cal.App.2d at p. 581, 182 P.2d at p. 574.)

It ruled, “It is not the fact that the whole or any portion of the sentence would have been unnecessarily served were the conviction set aside that makes it an abuse of discretion in a case like this not to admit the defendants to bail, but rather, the fact that the court in the exercise of its discretion has determined that for certain purposes the cases are analogous to misdemeanor convictions, and hence it is an abuse of discretion not to consider them similarly for purposes of bail on appeal.” (Id. at p. 582, 182 P.2d at p. 575. See also In re McCaughan (1956) 142 Cal.App.2d 690, 691-693, 298 P.2d 871.)

The foregoing cases have been cited for the proposition that when a defendant convicted of a felony is granted probation with a county jail sentence and treated similarly to a misdemeanant in the important matter of punishment and probation, it is an abuse of discretion to deny bail. (See Gustafson, Bail in California (1956) 44 Cal.L.Rev. 815, 821, fn. 61; and Molinari, Admission to Bail in California (1974) 49 Cal.State Bar J. 366, 372, fn. 57.)2

It is suggested that Torres is no longer applicable because of amendments to section 17 of the Penal Code. At all times since the adoption of the code amendments in 1873-1874, the section has provided, “A felony is a crime which is punishable with death or by imprisonment in the state prison.” Under the provisions of paragraph (3), of subdivision (b), it is now expressly provided, “(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: … [[[[¶] (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor.” (Stats. 1969, ch. 1144, § 1, p. 2214.) It is clear that appellant's conviction is one for a felony because imposition of sentence was suspended and there was no declaration that the offense, punishable “by imprisonment in the county jail for not more than one year or in the state prison for not more than 10 years” (Pen.Code, § 489), was to be a misdemeanor.

Torres was admitted to probation May 27, 1947, at a time when section 17 read, “A felony is a crime which is punishable with death or by imprisonment in the State Prison. Every other crime is a misdemeanor. When a crime, punishable by imprisonment in the State Prison, is also punishable by fine or imprisonment in a County Jail, in the discretion of the court, it shall be deemed a misdemeanor for all purposes after a judgment imposing a punishment other than imprisonment in the State Prison.” In People v. Banks (1959) 53 Cal.2d 370, 1 Cal.Rptr. 669, 348 P.2d 102, it was recognized that an offense punishable either as a misdemeanor or a felony would generally be classified as the latter until judgment was imposed (53 Cal.2d at pp. 381-382, 1 Cal.Rptr. 669, 348 P.2d 102). In Torres it does not appear whether a prison term was imposed and suspended, or whether, as here, imposition of sentence was suspended. In either event the crime would be classified as a felony, and it was recognized as such by the court. Torres should therefore be controlling.

It is further suggested that the conditions of appellant's probation are more onerous than would be imposed for a misdemeanor, and so the case falls within the reservation in the above quotation which reads “there will be many cases in which, because of the circumstances or because of additional terms in the probation order, it may be inadvisable to admit the defendant to bail on appeal, even though the length of the probation term and the conditions thereof as to incarceration are within the limits of a misdemeanor case.” (80 Cal.App.2d at p. 581, 182 P.2d at p. 575.) The record reflects that the term of probation, as in Torres, is only two years, which is within the maximum of three years permitted for a misdemeanor (Pen.Code, § 1203, subd. (a)), and which is less than the maximum of 10 years probation which could have been imposed for the felony of which the appellant was convicted (id., § 1203.1). The four normal conditions set forth in the order for probation—reporting, restriction on change of residence without approval, seeking employment, and obedience at law—are not exceptional. The only additional condition checked on the form of order used is the provision that appellant serve nine months in the county jail.3

We therefore conclude that this case is governed by Torres and that it should have been followed by the trial court had proper application for bail been made in that court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456, 20 Cal.Rptr. 321, 369 P.2d 937.)

Appellant's application for bail is granted. He is admitted to bail pending determination of his appeal, and that bail heretofore posted for his release pending disposition of his application may suffice, subject however to further order of the trial court.


1.  Section 32(b) provides: “An application to the reviewing court for bail or to reduce bail on an appeal pending therein shall be made on such notice to the district attorney and the Attorney General as the court may determine, and shall include a showing that proper application for bail or a reduction of bail was made to the superior court and that such court unjustifiably denied the application.”

2.  People v. Torres, supra, has also been cited for its recognition of the principles that bail on appeal is a matter of discretion in cases when the defendant is convicted of felony, and that the exercise of that discretion by the trial court will not ordinarily be disturbed. (See In re Brumback (1956) 46 Cal.2d 810, 813, 299 P.2d 217; and People v. Hall (1952) 115 Cal.App.2d 114, 148, 251 P.2d 979.) It has been distinguished when the defendant has been sentenced to state prison (see People v. Sullivan (1952) 110 Cal.App.2d 4, 6, 242 P.2d 348), and referred to as recognizing that bail is a matter of right under section 1272 of the Penal Code in the event of a judgment imposing imprisonment in a misdemeanor case (see In re Keddy (1951) 105 Cal.App.2d 215, 218, 233 P.2d 159).

3.  Torres was to serve six months. His codefendants who were also granted relief had similar two year terms of probation and were ordered to serve four and two months, respectively. (80 Cal.App.2d at pp. 579-580, 182 P.2d 573.) McCaughan was placed on probation for three years and ordered to serve one year in the county jail. (142 Cal.App.2d at p. 692, 298 P.2d 871.) The convictions of Torres and his associates were affirmed. (People v. Torres (1948) 84 Cal.App.2d 787, 192 P.2d 45.) We can hope they surrendered in excution of their probationary sentences.

SIMS, Associate Justice.

MOLINARI, P.J., concurs.