In re O'Driscoll

Petitioner John Desmond O’Driscoll is currently appealing from a municipal court order reinstating him to misdemeanor probation by imposing additional conditions, including 120 days in county jail. He contends he is entitled to bail on appeal as a matter of right by virtue of Penal Code section 1272, subdivision 2. 1 Having failed to convince the municipal court and the Marin County Superior Court, petitioner filed an original petition for writ of habeas corpus which we originally denied summarily. He then petitioned the Supreme Court, which issued an order to show cause returnable here and cited us to section 1272, subdivision 2 and In re Newbern (1961) 55 Cal.2d 500, 503-504 [ 11 Cal.Rptr. 547 , 360 P.2d 43 ].

The procedural history is brief. In 1984 petitioner was convicted of driving under the influence (DUI), a misdemeanor. We presume, for purposes of this proceeding, that he was placed on three years probation, which included the standard condition that he lead a law-abiding life. 2 (Case No. 84-00550.) On *1358 November 8, 1985, he was charged by complaint with a new DUI offense. (Case No. 85-12400.) That same day, the new offense was used as the basis for a…

I respectfully dissent. Penal Code section 1272, subdivision 2 does not afford a right to automatic bail pending appeal from an order made after a misdemeanor judgment, such as an order modifying probation and imposing incarceration as a sanction for a probation violation. The majority’s conclusion to the contrary, while based on an appealing surface logic, interprets the bail statute contrary to its explicit terms and can find no support in prior decisional law. Furthermore, the majority’s ruling will drastically undermine the careful process of probation supervision by effectively diluting the power of the probation officer and the trial court to promptly punish the errant probationer. I cannot contribute to such an unfortunate result, nor do I believe that result was anticipated by the Supreme Court when it issued its order to show cause.

The statute provides for bail as a matter of right “before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of *1362 misdemeanors.” I read this language as providing for bail only in the two situations designated: prior to judgment pending…