CARTER, J. I dissent.
I see no occasion for reading words into section 1506 of the Penal Code which makes appealable only an order of the [11]superior court which discharges petitioner from custody. It has been-held repeatedly that in only those situations expressly covered by section 1506 was an order in habeas corpus proceedings appealable because the rule prior to its enactment had been that the state could not appeal. (In re Alpine, 203 Cal. 731 [265 P. 947, 58 A.L.R. 1500]; In re Bruegger, 204 Cal. 169 [267 P. 101]; Thuesen v. Superior Court, 215 Cal. 572 [12 P.2d 8]; Loustalot v. Superior Court, 30 Cal.2d 905 [186 P.2d 673]; In re Merwin, 108 Cal.App. 31 [290 P. 1076]; In re Dutton, 119 Cal.App. 447 [6 P.2d 558].) The Bruegger case states the reason for the rule: “The primary purpose of the writ of habeas corpus is to provide a summary and, speedy mode of inquiring into the legality of imprisonment or restraint . . . the writ would be deprived of its effect if an order made pursuant to the inquiry can be suspended, and the person or parties affected can be compelled to undergo the delay attendant upon an appeal to the higher court.” (Emphasis added; In re Bruegger, supra, 204 Cal. 169, 171.) The use of the word “discharge” in section 1506 is plain enough. It can mean only one thing, release from custody. If there is any doubt as to its meaning it is completely dispelled by the remainder of the section which states that in case of such appeal defendant shall not be discharged from custody where the judgment of conviction has become final pending the appeal; however, defendant may be admitted to bail pending the appeal. If “discharge” is not limited to a release from custody these provisions in the section become meaningless.
Aside from the question of appealability I cannot agree with the majority opinion on the merits. While it is difficult to ascertain precisely what the holding is, the result is a complete reversal of the judgment. That reversal seems to be predicated upon the ground that because petitioner was given the facilities to which the order said he was entitled the question has become moot. In reaching that conclusion the majority ignores the fact that the evidence supports the order of the superior court in that the conduct of the prison authorities was such that it could at least be inferred that they would continue to withhold the facilities from petitioner unless a court ordered otherwise. It is similar to a ease in which an injunction is sought, and there is a showing of threatened injury by defendant, but after the injunction is ordered he says he will be a “good boy.” His belated repentance furnishes no basis for reversing the judgment granting the [12]injunction. The majority opinion purports to decide the question anew in spite of its being bound on appeal by the conclusion of the trial court on conflicting evidence.
The evidence shows that the prison authorities delayed for 14 days in permitting petitioner to have access to the courts; that despite the advice of the attorney general petitioner was deprived of such access; that petitioner was deprived of his personal books and papers and prevented from working on his case; indeed, this is admitted by the warden and he insisted on his right to do so; that the warden refused to permit petitioner to consult with an attorney whom petitioner had requested to call at the prison and consult with him and the warden testified that if petitioner asked to see that attorney again, “I am not prepared to say whether or not we would approve it.” All of these things justified the superior court in concluding that there existed a real danger that the prison authorities would continue to deny the rights to which petitioner was entitled. It is of little significance that at the time of the hearing petitioner was not being deprived of his rights. That constituted nothing more than a conflict in the evidence on the question of what the warden’s future conduct would be. Or it might be viewed as a confession that they had been wrong in their action and, in effect, a stipulation that the order made by the trial court should be made. Judicial protection of the rights of a prisoner would indeed be a mockery if the courts would always accept the pious protestations of the prison authorities that the rights would be accorded and then blithely disregard them the next day, leaving the prisoner to commence again his weary journey through the court process toward a chimerical goal. Such conditions are intolerable in a civilized society, yet this court now espouses them.
In mandamus proceedings it has been held that the writ is proper where the conduct of the officers indicates they do not intend to perform their duty. In Imperial Mut. L. Ins. Co. v. Caminetti, 59 Cal.App.2d 494, 497 [139 P.2d 693], the court said: “[T]he general rule is that the act sought to be compelled by mandamus must be one to the performance of which the party is entitled at the time the proceeding in mandate is instituted . . . but that rule is subject to a kindred rule that mandate may be resorted to when it appears from the conduct or declarations of the officer or board, that they do not intend to comply with their obligation . . . when the time for such action arrives. ... To insist in an equitable proceeding such as mandate is, and under the facts and cir[13]cumstances here present, that petitioner should have been compelled to file a petition for renewal of its license for the few days between June 15th and June 30th, 1941, and then, subsequent to July 1st, file another petition for the ensuing fiscal year ending June 30, 1942, would do violence to the rule enunciated in section 3532 of the Civil Code, which reads ‘The law neither does nor requires idle acts.’ Equity will also consider the fact that there is no showing of prejudice to appellant commissioner by reason of the time when the action herein was filed. . . . Equity does not look with favor upon litigation by piece-meal, and whenever possible will dispose of the entire controversy between the parties, will grant complete relief and whenever possible will settle and determine all differences between the parties in the one action, leaving nothing for further litigation between the same parties and upon the same subject-matter.”
With reference to injunctions the rule has been stated to be: “However, the mere cessation by defendant of the alleged acts or conduct, before or after the beginning of a suit for injunction, has been held not a bar to the issuance of an injunction, and in a proper ease, as where there is a reasonable ground to believe that there will be a resumption of such activities, a court of equity may issue an injunction.” (43 C.J.S., Injunctions, § 22(d); see also Boggs v. North American Bond etc. Co., 6 Cal.2d 523 [58 P.2d 918].)
The rights assured to petitioner by the order of the superior court are important and any impairment thereof must be carefully scrutinized. It is said in Ex parte Hull, 312 U.S. 546, 549 [61 S.Ct. 640, 85 L.Ed. 1034] : “ [T]he state and its officers may not abridge or impair petitioner’s right to apply to a federal court for a writ of habeas corpus. Whether a petition for writ of habeas corpus addressed to a federal court is properly drawn and what allegations it must contain are questions for that court alone to determine.” The court said in In re Rider, 50 Cal.App. 797, 799 [195 P. 965] : “The right of an accused, confined in jail or other place of detention ... to have an opportunity to consult freely with his counsel without any third person, whose presence is objectionable to the accused, being present to hear what passes between the accused and his counsel, is one of the fundamental rights guaranteed by the American criminal law—a right that no legislature or court can ignore or violate. In this state, the right of an accused to consult with his counsel is guaranteed by the constitution, which, in section 13 of article I, expressly [14]declares that ‘in criminal prosecutions, in any court whatever, the party accused shall have the right to . . . appear and defend, in person and with counsel. ’ This clause of the constitution unquestionably was adopted to secure to the accused person all the benefits which may flow from the employment of counsel to conduct his defense. To afford him those benefits it is essential that he should be allowed to consult with his counsel, not only during the actual trial, but prior thereto, in order to prepare for his defense. The privilege of the presence of counsel upon the trial would be a poor concession if the right of consultation with such counsel prior to the trial were denied. It is equally essential to the enjoyment of this constitutional guarantee that the accused should have the right to a private consultation with his counsel. As said by the Oklahoma criminal court of appeals, ‘It would be a cheap subterfuge of and a senseless mockery upon justice for the state to put a man on trial in its courts, charged with an offense which involved his life, liberty, or character, and then place him in such a position that he could not prepare to make his defense. It would be just as reasonable to place shackles upon a man’s limbs, and then tell him that it is his right and duty to defend himself against an impending physical assault. If the right of defense exists, it includes and carries with it the right of such freedom of action as is essential and necessary to make such defense complete. In fact, there can be no such thing as a legal trial, unless both parties are allowed a reasonable opportunity to prepare to vindicate their rights. ... It therefore necessarily follows that it is the absolute right of parties charged with crime to confer privately with their attorneys, and that it is an illegal abridgment of this right for a sheriff, jailer, or other officer to deny to a defendant the right to consult his attorneys except in the presence of such officer. ... It is the duty of officers having the custody of persons charged with crime to afford them a reasonable opportunity to privately consult with their attorneys, without having other persons present, taking such precautions as may be necessary, according to the circumstances of each case, to prevent the escape of such prisoner.’ ” (See also In re Robinson, 112 Cal.App.2d 626 [246 P.2d 982].) There is no basis whatsoever for the statement in the majority opinion that petitioner is seeking or sought or was granted “special privileges.” The rights sought by petitioner and granted by the trial court are the rights which must be accorded to all prisoners if the
The majority states that prisoners have a right to prompt and timely access to the mails “for the purpose of transmitting to the courts” facts which show ground for relief but they “have no legally enforceable rights to engage in legal research.” For that conclusion it cites the code sections to the effect that petitioner is civilly dead. What bearing that has on a prisoner’s right to defend himself does not appear. If he may transmit “facts” to the courts in an attempt to obtain relief he should also be entitled to transmit legal propositions. To do either requires reasonable opportunity to prepare the facts and the law. If that requires legal research then a reasonable opportunity therefor should be given. The order of the trial court here did not go beyond the bounds of reason. Certainly it cannot be said its order is so unreasonable that it abused its discretion.
The majority decision here is another, in a long line of decisions by this court, in which this petitioner has been denied his constitutional rights. (See People v. Chessman, 35 Cal.2d 455 [218 P.2d 769, 19 A.L.R.2d 1084]; People v. Chessman, 38 Cal.2d 166 [238 P.2d 1001]; In re Chessman, 43 Cal.2d 408 [274 P.2d 645].)
I would affirm the order here under review.
The application of respondent on appeal in Crim. No. 5591 and Real Party in Interest in S. F. No. 19158 for a rehearing Avas denied March 3, 1955. Carter, J., and Traynor, J., were of the opinion that the application should be granted.