In Re Burnette

PETERS, J.,

pro teto.

—

Burnette petitions this court for a writ of

habeas corpus

for the purpose of having his bail reduced pending appeal from his conviction of the crime of rape. The petition and return, together with certain supporting affidavits, and the records of this court, disclose that; after the conviction, the trial court refused appellant a cer

[359]

tifieate of probable cause. Thereafter, upon the petition of Burnette, this court granted a writ of

sv/persedeas

to stay execution pending the appeal.

(People

v.

Burnette,

34 Cal. App. (2d) 663 [94 Pac. (2d) 399].) The present petition alleges that thereafter the trial judge made an order admitting petitioner to bail pending the appeal, and fixed the amount of bail at $100,000 bond or $50,000 cash. The petition alleges that the bail so fixed is grossly excessive; is in violation of article I, section 6 of the state Constitution providing that “Excessive bail shall not be required”; that prior to his conviction Burnette was at large on bail on the rape charge in the sum of $5,000 bond or $2,500 cash; that petitioner can give bail in the sum of $15,000 bond; that said sum is reasonable and ample to secure the appearance of petitioner.

It is to be noted that we are here dealing with an application for reduction in bail after conviction. Section 1272 of the Penal Code provides that after conviction bail in non-capital felony cases shall rest in the discretion of the trial court. There are many cases holding that the appellate courts will not disturb the trial court’s discretion in such eases, unless some extraordinary circumstance has occurred since the trial, such as the illness of the defendant or after discovered evidence which tends to show his innocence. (See 3 Cal. Jur., p. 1034, secs. 9 and 10; 13 Cal. Jur., p. 247, sec. 26;