In re PLEAS SCAGGS, on Habeas Corpus, 47 Cal. 2d 416

GIBSON, C. J. This is a proceeding in habeas corpus to admit Scaggs to bail pending his appeal from a conviction of receiving stolen property in violation of

section 496 of the Penal Code. The questions presented are whether the trial court exercised its discretion in refusing to admit him to bail and, if so, whether the refusal constituted an abuse of discretion. After the verdict was returned against Scaggs, he remained at large on bail for about six weeks while his motion for probation was pending. On May 15, 1956, the court denied probation in accordance with the recommendation of the probation officer’s report and sentenced Scaggs to be confined in state prison for the term prescribed by law. His motion for bail pending appeal was also denied.

Execution of the sentence was stayed through May 31. On May 29, a second motion for bail was made. It was argued that Scaggs owned a hotel which was being converted into apartments and that it was mortgaged in the amount of $72,000 and would be lost by foreclosure unless he were admitted to bail. The motion was denied. On July 13, Scaggs made a third motion for bail, and, by way of indicating additional circumstances which had arisen after the court’s ruling on May 29, he pointed to the illness of his wife, who was in the hospital for surgery, and to our decision in In re Brumback, 46 Cal.2d 810 [299 P.2d 217].

In again denying the motion, the court stated, “Well, as I read the Brumback ease, they hold what we felt was the law at the time of the original ruling on this application for bail. The trial court had it within its discretion to admit or deny admission to bail on appeal. . . . The Court exercised its discretion at that time and, in consideration of all the circumstances, decided that no order fixing bail would be made. ... I don’t think the situation has changed, at all.

Nothing substantial has been brought to the attention of the Court that would warrant granting of bail to this Defendant.” In response to a remark by counsel that the court had stated that granting bail “in these cases” was contrary to its policy, the court said, “In this type of case . . . Where the facts were as they appeared in this case, I would not grant bail.” Before conviction, a defendant charged with a felony not punishable with death is entitled to be admitted to bail “as a matter of right,” but, after conviction, his admission to bail is a “matter of discretion,” unless only a fine is imposed. (Pen.

Code, §§ 1270, 1271, 1272.) This important difference in the status of a defendant before and after conviction is one of long standing in both the statutes and judicial decisions of California and arises from the fact that, upon conviction, the defendant loses the benefit of the presumption of innocence and is presumed to be guilty. (Crim. Prac.

Act (1851), §§ 509, 510, 512; Ex parte Voll (1871), 41 Cal. 29, 32 [holding that, so far as eases after conviction were concerned, the provision of the 1849 Constitution that “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great” was not intended to alter the common-law rule that applications for bail were addressed to the discretion of the court]; Ex parte Brown (1885), 68 Cal. 176, 177 [8 P. 829] [reaching the same result with respect to that provision as incorporated, without change in language, in

section 6 of

article I of the 1879 Constitution].) It is thus clear that Scaggs, having been convicted of a felony and sentenced to imprisonment, was not entitled to be admitted to bail as a matter of right but was compelled to address himself to the discretion of the court. In In re Brumback, 46 Cal.2d 810 [299 P.2d 217], after recognizing that the discretion in such a case belongs primarily to the trial court and is to be exercised in the light of all of the attending circumstances, we held that the trial court may not decline to exercise that discretion.

Although the court in the present case used language on May 29 which might be construed as indicating that it was declining to exercise its discretion, it undertook to dispel any doubt in that regard by stating on July 13 that, in previously denying the motion for bail, it had applied the law as set forth in the Brumbaek ease. In any event, it is immaterial whether the court failed to exercise its discretion on May 29, since the record shows that it did so on July 13 in making its final ruling on the motion for bail.

There remains the question of whether the refusal to admit Scaggs to bail constituted an abuse of discretion. Although, as we have said, the primary purpose of bail is to assure the presence of the defendant in court when required (see In re Brumback, 46 Cal.2d 810, 813 [299 P.2d 217]), it does not, of course, follow that other matters may not be considered in determining whether a convicted defendant should be retained in custody pending his appeal. Obviously, one important consideration is whether there is any danger that, if released, he would continue to commit crime.

In an affidavit filed in this proceeding, Judge Caulfield, who presided at the trial and denied the motions for bail, states that there were “strong indications that he [Scaggs] had engaged in other criminal activities before, during and even after the trial.” As additional factors upon which his denial of the motions was based, Judge Caulfield includes the unfavorable recommendation of the probation officer, the fact that, after his conviction, Scaggs was at liberty for several weeks during which he had an opportunity to put his affairs in order, the judge’s view that there was no convincing evidence to support the claim of economic hardship, and his belief that no substantial errors in the trial of the case would be shown on appeal.

We are satisfied that there was no abuse of discretion in refusing to admit Scaggs to bail. The order to show cause is discharged, and the writ is denied. Shenk, J., Traynor, J., and Spence, J., concurred. McComb, J., concurred in the order denying the writ.

Section 1270 of the Penal Code provides: “A defendant charged with an offense punishable with death cannot be admitted to bail, when the proof of his guilt is evident or the presumption thereof great. The finding of an indictment does not add to the strength of the proof or the presumptions to be drawn therefrom.”

Section 1271 of the Penal Code provides: “If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right.”

Section 1272 of the Penal Code provides: “After conviction of an offense not punishable with death, a defendant who has appealed may be admitted to bail: “1. As a matter of right, when the appeal is from a judgment imposing a fine only. “2. As a matter of right, when the appeal is from a judgment imposing imprisonment in eases of misdemeanor. “3. As a matter of discretion in all other cases.”