LOW, P. J. I respectfully dissent. Penal Code section 1272, subdivision 2 does not afford a right to automatic bail pending appeal from an order made after a misdemeanor judgment, such as an order modifying probation and imposing incarceration as a sanction for a probation violation. The majority’s conclusion to the contrary, while based on an appealing surface logic, interprets the bail statute contrary to its explicit terms and can find no support in prior decisional law. Furthermore, the majority’s ruling will drastically undermine the careful process of probation supervision by effectively diluting the power of the probation officer and the trial court to promptly punish the errant probationer. I cannot contribute to such an unfortunate result, nor do I believe that result was anticipated by the Supreme Court when it issued its order to show cause.
The statute provides for bail as a matter of right “before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of [1362]misdemeanors.” I read this language as providing for bail only in the two situations designated: prior to judgment pending an application for probation, or on appeal from the judgment itself. The statute clearly does not provide for automatic bail on appeal from orders after final judgment. An “order after judgment” is not a “judgment”: had the Legislature intended to provide for automatic bail on postjudgment appeals, it could easily and clearly have done so. The Legislature has not provided by postjudgment automatic bail in misdemeanor cases, and this court cannot do so without rewriting the bail statute.
I admit there is a certain gloss of appeal to the majority’s conclusion that the statute “guarantees a right to bail on an appeal from any appealable order or judgment imposing imprisonment on a misdemeanor offense.” I understand the majority to reason that given the short sentences typically imposed for a misdemeanor, a right to automatic bail should attach to any order imposing incarceration for misdemeanor conduct, thereby preserving the meaning of the right to appeal when the appeal period may well exceed the sentence. This reasoning applies very handily to the original misdemeanor sentence, and indeed is the reason for automatic misdemeanor bail on appeal. The reasoning does not apply to the postjudgment sanction of jail time imposed for a probation violation. The Legislature has not seen fit to extend the same bail privilege to errant probationers who have been afforded a chance to perform and have failed. Nevertheless, reasonable minds may see a certain compassion in the majority’s line of thought: however, the inclusion within the bail statute of “any” appealable order, including postjudgment orders, is a matter left to the Legislature.
The cases relied on by the majority do not support its position. In re Newbern (1961) 55 Cal.2d 500, 503-504 [11 Cal.Rptr. 547, 360 P.2d 43], was never cited or relied on by O’Driscoll until cited by the Supreme Court’s order to show cause. The case is clearly distinguishable as it involved an appeal from a judgment imposing incarceration, not an order after final judgment. The defendant in Newbern was placed on probation for two misdemeanor violations of a Los Angeles intoxication ordinance. Upon his rearrest from a new alcohol-related crime, the defendant suffered revocation and termination—not modification and continuation—of probation, and the imposition of sentences of 180 days on the prior offenses. It is clear from the Newbern opinion that the defendant’s appeal was from a final judgment imposing sentence, not an order after final judgment. The postjudgment order from which O’Driscoll currently appeals simply does not fall under the ruling of Newbern.
Likewise, In re Bakke (1986) 42 Cal.3d 84 [227 Cal.Rptr. 663, 720 P.2d 11], involves bail on appeal from a final judgment—an order granting proba[1363]tion conditioned upon a jail term—and not an order after final judgment. The majority’s conclusion that “the right to bail under section 1272, subdivision 2 is dependent upon neither the time nor the form of the order or judgment imposing imprisonment” simply does not follow from Newbern and Bakke.
The majority’s conclusion is not only unsound law but unsound policy. I think it unwise to extend automatic bail to defendants who are extended the grace of probation and who nonetheless violate the trust afforded by a probation grant. Probation is an act of grace and clemency, designed to rehabilitate so the probationer may make a responsible citizen of him or herself and be obedient of the law. The supervisory terms for probation may be accepted or rejected by the probationer at the time judgment is pronounced. The supervision and enforcement of the terms accepted by the probationer imposed by the court in granting clemency are unnecessarily undermined by the majority’s interpretation of the statute.
I think it ill-advised policy to send a message to misdemeanor offenders they may violate probation with impunity and remain free of incarceration by the simple mechanism of filing a notice of appeal. I think it detrimental to undercut the supervisory authority of the municipal court and the probation officer by rendering his or her authority virtually toothless by negating the force of the rehabilitative/punitive device of jail incarceration for a probation violation. Such terms of confinement are necessary tools of the probation trade; their length may be adjusted in flexible response to the nature of the violation and the degree of punishment necessary to correct the probationer’s errant course. This flexible-response sanction is diluted by the attendant delays of appeal. If automatic bail is afforded, the notice of appeal becomes a handy, yet undeserved “Get Out of Jail Free” card for the recidivist probationer.
The facts of this case demonstrate the merit of a policy against extending automatic bail on appeal to the probation violator. O’Driscoll is a recidivist drunk driver with an ample record of prior offenses. Probation records reveal that before O’Driscoll received his conditional sentence in 1984, he had already suffered no less than three prior convictions for driving while intoxicated. The sentencing court, unaware of two of the three priors, treated O’Driscoll as a first rather than a fourth offender: “I’m going to give you a break, Mr. O’Driscoll, and I hope that you take advantage of it. Normally, I would increase the sentence on this case above the minimum because of your prior arrest [sic].” As petitioner expressed his appreciation for the court’s leniency, the court again admonished petitioner that he “got a break the first time” and “should avoid getting arrested again for this.” Petitioner obviously failed to heed the court’s sound warnings, and was arrested in [1364]November 1985 on the current, and the fifth, drunk driving offense. I do not believe that the interests of society are well served by an unprecedented extension of the right to automatic release on bail pending appeal to a recurrent example of the “drunk driver [who] cuts a wide swath of death, pain, grief, and untold physical and emotional injury across the roads of California.” (Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732], cert. den. 466 U.S. 967 [80 L.Ed.2d 812, 104 S.Ct. 2337].)
I would be surprised if the majority’s result was contemplated by the Supreme Court. On the contrary, I am of the opinion the order to show cause in this case was issued on an unfortunate misapprehension of the nature of the proceedings below. As the Attorney General wisely observed at oral argument, one searches the petition filed in the Supreme Court in vain for a clear representation of the true nature of the order appealed from; it is constantly referred to as an order revoking probation, with the implication of a revocation, termination and imposition of the original sentence. One does not easily discover the order was actually one of modification of probation. Small wonder the order to show cause cites Newbern, a termination, not a modification case. I point out that the order to show cause issued without the benefit of preliminary opposition to the petition by the Attorney General. In this case, opposition would have clarified the brief obfuscatory petition for writ of habeas corpus and would have quite possibly led to a summary denial.
I would discharge the order to show cause and deny the petition.
Respondent’s petition for review by the Supreme Court was denied August 26, 1987.