People v. McNiff

[203]Opinion

FILES, P. J. Defendant has applied to this court for an order setting bail on appeal.

In 1972 defendant pleaded guilty of pimping (Pen. Code, § 266h) and in 1973 was convicted of pandering (Pen. Code, § 266i), both felonies. Proceedings were suspended in both cases and probation was granted for a period of two years, subject to a nunber of conditions, one of which was that he serve 30 days in county jail.

On December 20, 1974, defendant was found in violation. Probation was revoked and reinstated, to expire December 31, 1975, in both cases, upon condition defendant spend another 30 days in jail. Additional conditions related to defendant’s employment, and required him to report his income and expenses to the probation officer. On December 24, 1975, the court revoked probation upon the ground defendant had been held to answer upon charges of burglary and receiving stolen property. Following a series of hearings, the court on January 9, 1976, concluded that defendant had violated his probation in a number of respects unrelated to the new felony charges. On that day the court reinstated probation in each case, to expire January 9, 1978, upon condition defendant serve five months in the county jail. Defendant has filed an appeal in each case from the order made January 9, 1976.

At. the time the order was made defendant’s counsel filed a notice of appeal and asked the court to release the defendant on his own recognizance or fix bail. The court denied the requests.

Later defendant filed a written notice of motion for an order setting bail on appeal, which was heard and denied on February 10. A reporter’s transcript of the February 10 hearing has been lodged with the application for bail in this court.

At the February 10 hearing the superior court denied bail upon the ground it lacked jurisdiction and also on the merits.

The trial court apparently believed that it lacked jurisdiction to set bail on February 10 because it had denied bail on January 9 and the Court of Appeal had also denied bail on January 20 and again on February 3. Since bail on appeal is a matter of trial court discretion (Pen. Code, § 1272, subd. 3), there appears to have been no legal obstacle to the [204]