Green v. Gordon

39 Cal.2d 230 (1952) 246 P.2d 38 JOHN D. GREEN, Appellant,

v.

WALTER A. GORDON et al., Respondents.

Docket No. S.F. 18523. Supreme Court of California. In Bank.

July 9, 1952. [231] Elizabeth Cassidy for Appellant.

Edmund G. Brown, Attorney General, and David K. Lener, Deputy Attorney General, for Respondents.

GIBSON, C.J.

In 1932, petitioner was convicted of murder and sentenced to death. After affirmance of the conviction (People v. Green, 217 Cal. 176 [17 P.2d 730]), Governor Rolph commuted the sentence to "life imprisonment without parole." Because of the terms of the commutation, the Adult Authority has refused to entertain petitioner's application for parole.

The superior court issued an order to show cause why mandate should not be granted to compel the Adult Authority to consider petitioner's application.[*] The return consisted of a general demurrer to the petition, and at the hearing thereon the court rendered a judgment of dismissal, from which petitioner has appealed.

He contends that by issuing the order to show cause the trial court passed upon the sufficiency of the petition and [232] thereafter had no power to dispose of the matter without making express findings on the issues presented. [1] An order to show cause is in the nature of a citation to a party to appear at a stated time and place to show why the requested relief should not be granted. (See Difani v. Riverside County Oil Co., 201 Cal. 210, 213-214 [256 P. 210].) [2] Obviously, a showing on general demurrer that the petition does not state sufficient facts to justify relief is a complete answer to an order to show cause, and the court is then warranted in discharging the order and dismissing the proceeding.