In Re Torres

BRAY, J

These are applications for bail pending appeal after felony convictions.

In the Torres case, the defendant was convicted of conspiracy to violate section 347 of the Penal Code. On May 27, 1947, he was admitted to probation for a period of two years upon condition of confinement in the county jail for a period of 6 months (less time served to date of order of probation) and payment of a fine in the sum of $200.

In the Silvers and Coloretti cases, both defendants were convicted of two counts: 1. Conspiracy to violate section 347 of the Penal Code; and 2. Violation of section 347 of the

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Penal Code. Silvers was admitted to probation for a period of 2 years upon condition of confinement in the county jail for a period of 4 months and payment of a fine on each count of $200. Coloretti received a like probationary term except that his term of imprisonment was only 2 months.

On May 27,1947, all applicants moved the superior court to be admitted to bail pending appeal, which motions were forthwith denied. All applicants have appealed from the respective judgments of conviction, and in their applications here have shown that their appeals are not frivolous.

These applications are made under the provisions of rule 32(b), Eules on Appeal, which reads: “An application to the reviewing court for bail or to reduce bail on an appeal pending therein shall be made on such notice to the district attorney and the attorney general as the court may determine, and shall include a showing that proper application for bail or a reduction of bail was made to the superior court and that such court unjustifiably denied the application. ’ ’

Petitioners are not entitled to bail as a matter of right but only within the discretion of the court. (Pen. Code, § 1272.) “It always'has been the law in this state that the discretion referred to in section 1272 of the Penal Code,

supra,

is a discretion conferred upon the trial court where the conviction was had, and .is not a discretion conferred upon the appellate courts. [Citing eases.] Of course, such discretion should not be arbitrarily exercised, and an abuse thereof will be controlled by an appellate court.