Turner

I dissent. In the light of recent Supreme Court decisions (In re Boyle, 11 Cal.3d 165 [ 113 Cal.Rptr. 99 , 520 P.2d 723 ]; In re Law, 10 Cal.3d 21 [ 109 Cal.Rptr. 573 , 513 P.2d 621 ]; and In re Underwood, 9 Cal.3d 345 [ 107 Cal.Rptr. 401 , 508 P.2d 721 ]) I apprehend the law of this state to be that except for capital offenses of the class defined in the new penalty legislation which became effective on January 1, 1974, a defendant is entitled to bail as a matter of right both before and after conviction, and that this right includes admission to bail pending appeal.

The thrust of Boyle, Law and Underwood is that article I, section 6 of the California Constitution mandates that, except for capital offenses, a defendant is entitled to be released on bail as a matter of right. This provision of the California Constitution, in pertinent part, provides: “All persons shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. Excessive bail shall not be required, . . .” This provision was enacted into the Constitution of 1849 (art. I, §§ 6, 7) and was reenacted into the 1879 Constitution.

It should be noted here that no…

Defendant was convicted by jury verdicts of two counts of rape by force or violence (Pen. Code, § 261, subd. 2) with prior convictions for forgery (Pen. Code, § 470) and receiving stolen property (Pen. Code, § 496). He has appealed from the judgment sentencing him to concurrent sentences in state prison. In a brief filed while these proceedings were pending he principally complains of the alleged misconduct of the prosecutor. A hearing was granted on his motion for bail pending appeal in order to consider the effect of recent statements of the state Supreme Court which indicated that the right to bail on appeal might be commensurate with the right to bail before conviction. An examination of the per *684 tinent precedents indicates that such is not the case; that admission to bail on appeal is a matter of discretion; and that there was no abuse of discretion in denying bail to the defendant in this case. The motion must be denied.

The California Constitution as adopted in 1849 provided: “All persons shall be bailable by sufficient sureties unless for capital offenses, when the proof is evident, or the presumption great.” (Art. I, § 7.) In January 1871, the state Supreme…