People v. Ramirez

[511]

HOUSER, J.

In this matter defendant has applied to this court for a certificate of probable cause. It appears that defendant was convicted of “assault with intent to commit murder,” and that he forthwith gave notice of appeal, together with the grounds thereof; whereupon the court made its order for the transcription of the reporter’s phonographic notes taken at the trial of the cause. Thereupon, according to the statement made to this court by the attorney representing defendant, a request for a certificate of probable cause was peremptorily denied by the judge of the trial court.

Although the language of the statute (sec. 1243, Pen. Code) in terms confers the power to issue a certificate of probable cause upon only the judge of the trial court, or upon a justice of the supreme court, it has been held that jurisdiction to issue such certificate also lies in a justice of the district court of appeal.

(In re Mayen,

49 Cal. App. 531 [193 Pac. 813].) The duty of the trial judge to issue a certificate of probable cause is extensively discussed by Chief Justice Beatty in the

Matter of Adams,

81 Cal. 163 [22 Pac. 547]. Such a certificate in no way conflicts with an order denying a motion for a new trial. In effect, it is merely an expression of opinion by the trial judge that debatable questions are or may be raised on the appeal; that the ease presented is not altogether frivolous’ or trifling and vexatious, but that there is room for an honest difference of opinion as to the existence of prejudicial error in some part of the proceedings leading to the conviction of the defendant. In such circumstances the certificate of probable cause is not merely a privilege which may be either graciously extended to the defendant or withheld from him by the trial judge, as either his pleasure or his whim may suggest, but it is a positive legal right possessed by the defendant. In several California cases the attention of the judges of the superior court is particularly directed to their bounden duty in this regard.

(In re Adams,

81 Cal. 167 [22 Pac. 547];