People v. Rodgers

KNIGHT, J. On November 27, 1939, the defendant, David Rodgers, was found guilty by a jury of having committed five felonies and two misdemeanors. The felonies were sex crimes (Pen. Code, secs. 261, 286, 288, and 288a) committed upon three girls, aged 14, 13 and 9 years respectively; and as a punishment therefor consecutive sentences of imprisonment in the state prison were imposed. The misdemeanor convictions were based on charges of contributing to the delinquency of two of the girls (sec. 702, Welfare and Institutions Code), and upon each of those convictions he was sentenced to one year in the county jail, but the sentences were suspended. Appeals were taken from all of said judgments of conviction, and from the orders denying the motions for new trial. Following the taking of the appeals appellant’s present counsel was substituted for the public defender,, who until then had defended appellant; and his present counsel applied to the trial court for a stay of execution pending the appeals. The application was denied. Thereupon he filed an application in this court for a writ of supersedeas, and a stay was granted pending the filing of the record on appeal and until this proceeding was determined; and the transcripts on appeal have since been filed.

Prior to the recasting in 1927 of section 1243 of the Penal Code, relating to the issuance of certificates of probable cause, it was held in effect that upon the refusal of the trial [363]court to grant such certificate the appealing party was entitled thereto as a matter of right from the court of appellate jurisdiction unless it clearly appeared that the appeal was frivolous. (In re Adams, 81 Cal. 163 [22 Pac. 547].) As reenacted, the code section declared that an appeal to the District Court of Appeal from a judgment of conviction does not stay the execution of the judgment in any case unless the trial court shall so order, and that “The granting or refusal of such order shall rest in the sole discretion of the trial court.” Since the recasting of said code section it has been held that despite the fact that the legislature incorporated therein the clause just quoted, a District Court of Appeal in the exercise of the constitutional authority granted by section 4 of article VI of the Constitution may nevertheless in a proper ease, by way of writ of supersedeas, stay the execution of a sentence imposed pursuant to a judgment of conviction. (In re Albori, 95 Cal. App. 42 [272 Pac. 321].) But it is also held that the rule still prevails that a stay should be denied by the court of appellate jurisdiction where it appears that the appeal is frivolous (In re Albori, supra; People v. Burnette, 34 Cal. App. (2d) 663 [94 Pac. (2d) 399]); and in the present ease a mere inspection of the record demonstrates without argument and beyond any rational doubt that the points upon which appellant states he will rely for reversal fall far short of presenting even debatable questions.