In re Brumback

pro tern.^[1] —Application on behalf of James J. Brumbaek for issuance of writ of habeas corpus for admission to bail upon appeal from conviction of two felonies.

Brumbaek and others were charged with conspiracy to receive stolen property (Pen. Code, §§ 182, 496) and with buying and receiving stolen property (Pen. Code, § 496). Two trials resulted in jury disagreements, but in the third Brumbaek was convicted on both counts; he was sentenced to state prison for the terms prescribed by law, same to run concurrently. He appealed and promptly obtained from the trial judge a certificate of probable cause and a stay of execution pending appeal, it being ordered that he be confined in the county jail during that period (Pen. Code, §§1243, 1244). Application for bail on appeal was made; it was denied on the day following the issuance of the stay. In making that ruling, the trial judge voiced opinions indicating that he would grant the bail application if authorized to do so but “stated that under prior decisions ... he had no discretion to allow bail on appeal and had to deny bail pending appeal where no extraordinary circumstances had arisen since the verdicts finding appellant guilty and the pronouncement of judgment and that the only time he had power and discretion to allow bail on appeal was when circumstances of an extraordinary character had intervened between the verdict of the

Appellant’s counsel, as petitioner herein, asserts that this was a refusal to exercise a discretion reposed in the trial judge (Pen. Code, §1272, subd. 3).^[3] The argument is sound. The judge merely made an erroneous determination that he had no discretion in the premises. That was the equivalent of the familiar refusal to exercise jurisdiction because of a mistaken view that same does not exist; in such case the error does not divest jurisdiction and its exercise can be compelled by an appropriate proceeding such as mandamus (13 Cal.Jur.2d § 56, p. 551; 1 Witkin California Procedure, § 163, p. 430.) A refusal to exercise an existing judicial discretion falls in the same category (Crocker v. Conrey, 140 Cal. 213 , 218 [ 73 P. 1006 ]; People v. Perdue, 48 Cal. 552 , 553).

The trial judge erroneously applied to his court, by way of restriction upon its power, a rule that has been promulgated principally as an aid to the exercise of the discretion of an appellate tribunal. It is settled that the primary discretion belongs to the trial judge and that it is a sound legal discretion to be exercised in the light of all attending circumstances. (See Ex parte Hoge, 48 Cal. 3 , 5; Ex parte Turner, 112 Cal. 627 , 629 [ 45 P. 571 ]; People v. Perdue, supra, 48 Cal. 552 ; People v. January, 70 Cal. 34 [ 11 P. 326 ]; In re Torres, 80 Cal.App.2d 579 , 580 [ 182 P.2d 573 ]; People v. Eiseman, 69 Cal.App. 143 , 146 [ 230 P. 669 ]; In re Wilkins, 66 Cal.App. 754 [ 226 P. 964 ]; People v. Hall, 115 Cal.App.2d 144 , 148 [ 251 P.2d 979 ].) He should recognize that the primary purpose of bail, before or after conviction, is practical assurance that defendant will attend upon the court when his presence is required. Where the trial judge has passed upon the merits of the application his ruling will not be disturbed unless a manifest abuse of discretion appears (Ex parte Turner, supra, 112 Cal. 627 , 629; People v. Davis, 67 Cal.App.2d 837 , 839 [ 155 P.2d 675 ]; In re Torres, supra, 80 Cal.App.2d 579 , 580; People v. Ephraim, 72 Cal.App.

It is true that the primary discretion in the matter of bail on appeal resides in the trial court but it is not correct to say that “ [i]t always has been the law in this state that the discretion referred to in section 1272 of the Penal Code ... is not a discretion conferred upon the appellate courts,” as stated in People v. Davis, 67 Cal.App.2d 837 , 839 [ 155 P.2d 675 ]; and the eases cited on page 839 do not support that proposition. There is no question of power here presented. The Constitution (art. VI, §§ 4 and 4b) confers upon the Supreme Court and the District Courts of Appeal and each individual justice the right to issue the writ of habeas corpus, and Penal Code, section 1490,^[4] makes it a proper avenue for obtaining bail. The requirement of intervening extraordinary circumstances is a self-imposed criterion for the guidance of appellate courts and individual appellate justices in the exercise of a sound judicial discretion. The cardinal rule is that manifest abuse of discretion must appear as a basis for the exercise of a sound discretion by an appellate court or justice; the intervening circumstance test is a supplementary one designed to enable the court of review to do justice even though it has become too late for the trial judge to do so. It operates by way of enlargement of the concept of permissible discretion and not as a restriction upon the power of trial or appellate court. In any event that test is not exclusive. The trial judge may grant hail in his discretion though no intervening circumstance has occurred and the appellate court may act