In re Levi

Troy Levi seeks a writ of habeas corpus on behalf of his brother, Eddie Levi, an inmate of the California Institution for Men at Chino. Eddie Levi, hereinafter referred to as petitioner, was committed for the offense of assault by means of force likely to produce great bodily harm. (Pen. Code, § 245.) He contends that his detention is unauthorized because his constitutional rights were violated in proceedings leading to his confinement.

He was arrested in June, 1950, after inflicting severe wounds on one Everett Sykes with a pocket knife. The cause was submitted on the transcript of the preliminary hearing and the trial court, sitting without a jury, found him guilty of assault with intent to commit murder. On September 27, 1950, after hearing his application for probation and motion for a new trial, the court denied his motion for a new trial, reduced the offense to assault by means of force likely to produce great bodily harm, ordered that proceedings be suspended, and placed him on probation for five years on condition that he serve one year in the county jail “with good time allowed. ’ ’ Approximately five days after his release from the county jail, he was arrested for…

I concur in the conclusion reached but since the holding of the majority is based in part upon In re Davis, 37 Cal.2d 872 [ 236 P.2d 579 ], in which I dissented, I withhold my approval from the portion of the decision of the court in this case which is supported by what I believe to be an erroneous holding in In re Davis, supra.