Azeria v. California Adult Authority

DUNIWAY, J.

Appeal from denial of a petition for writ of mandate. The appeal is in propria persona and upon the clerk’s transcript alone. So far as appears, no answer to the petition was filed and no evidence was offered or received. There does not seem to have been any appearance below in

[3]

opposition to the petition. Under Code of Civil Procedure, section 1088, the writ cannot be granted by default, and, if no answer be filed, the court may hear the case on the papers of the applicant (Code Civ. Proc., § 1094, and

cf.

§ 1107). It is thus clear that, in a proper case, the court can act upon the petition in the manner in which it did here. There is some doubt whether mandate is the proper remedy in this case. However, the attorney general has suggested that the appeal can be treated as if it were an original application for habeas corpus. Since either deciding the appeal or treating it as such an application will result in a decision on the merits, we do not decide whether mandate is a proper remedy, and this decision is not to be taken as indicating that we think that mandate is proper.

We consider the appeal on the assumption that the factual allegations of the petition, properly pleaded, are true. This, however, does not apply to the arguments therein, which are voluminous, nor to the many statements of opinions and conclusions, as distinguished from facts.

Petitioner is confined, in the custody of the Adult Authority, following his conviction of manslaughter by motor vehicle (Pen. Code, §§ 192, subd. 3, 193) and failure to stop to render aid after an accident (Veh. Code, §480, now §20001). He was sentenced for the same term—six months to five years —for each offense, the sentences being concurrent. He was convicted December 30, 1958. On March 9, 1959, he was notified by the authority as to his status, that the minimum time he must serve was six months, and that the first board appearance would be July 1959. On July 13, 1959, parole was denied and further consideration postponed one year. On July 13, 1960, parole was again denied, and further consideration postponed one year.

He submitted a petition for habeas corpus “to Los Angeles County” and then, about September 30, 1959, to the Superior Court for Kern County. The judge wrote to him asking the basis for the issuance of the writ, and suggesting the appellant consult counsel. In November 1959, the County Clerk of Kern County sent him a certified copy of his petition, stating that he should file in Marin County, because he was then confined to San Quentin prison, where he now is.