Opinion
10-25-1951
GREEN v. GORDON et al. Civ. 14887.
Elizabeth Cassidy, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
GREEN
v.
GORDON et al.
Oct. 25, 1951.
Hearing Granted Dec. 20, 1951. *
Elizabeth Cassidy, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., David K. Lener, Deputy Atty. Gen., for respondent.
DOOLING, Justice.
Appellant Green is an inmate of the State Prison in San Quentin. In 1932 he was convicted of murder in the first degree and sentenced to death, which judgment was affirmed. People v. Green, 217 Cal. 176, 17 P.2d 730. He applied to the governor for a commutation of his sentence to life imprisonment, and the governor commuted his sentence to 'life imprisonment without parole.' Appellant has several times applied to respondents, who constitute the Adult Authority, for parole and they have refused to consider his applications because of the form of the commutation.
Appellant filed a petition in the Superior Court entitled 'Petition For Order To Show Cause', which was in effect a petition for a writ of mandate, to compel respondents to entertain appellant's application for parole. An order to show cause was issued by Judge Butler and on the return of the order the matter was heard by Judge Martinelli. Judge Martinelli dismissed the petition and from the judgment of dismissal this appeal is taken.
On the merits appellant contends that the governor had no power to attach the condition that appellant should not be paroled to his order of commutation. Appellant argues that since the penalty fixed by the legislature for murder in the first degree is either death or life imprisonment with possibility of parole after seven years (Penal Code, sec. 3046) the governor acted 'contrary to law' in attaching the condition which denies appellant the right to parole.
The weakness in this argument is that the governor's power to commute sentences comes from the constitution (Art. VII, sec. 1) which gives to the governor 'the power to grant reprieves, pardons, and commutations of sentence * * * upon such conditions, and with such restrictions and limitations, as he may think proper * * *.' (Emphasis ours.)
In acting under this constitutional authority the governor may attach such conditions to his act of clemency as he thinks proper, Ex parte Kelly, 155 Cal. 39, 41, 99 P. 368, 20 L.R.A.,N.S., 337; Ex parte Marks, 64 Cal. 29, 28 P. 109; Matter of Application of Wilson, 29 Cal.App. 702, 157 P. 529, so long as the condition is 'reasonable and compatible with the genius of our laws' and is not 'illegal, immoral or impossible of performance.' 39 Am.Jur., Pardon, Reprieve and Amnesty, sec. 67, pp. 561-562.
With this constitutional power of the governor it is clear that the legislature has no power to interfere, nor can the provisions of sec. 3046, Pen.Code, be reasonably construed as an attempt to curtail the governor's power in commuting a sentence of death.
While the precise question was not discussed in Re Stewart, 24 Cal.2d 344, 149 P.2d 689, all the justices in that case apparently assumed the governor's power to commute a death sentence to imprisonment for life without possibility of parole.
The return to the order to show cause was properly heard by another judge. There is but one Superior Court, 7 Cal.Jur. p. 680, and the transfer of cases from one judge to another is within the power of the court. 7 Cal.Jur. 682-683. We must assume that the order to show cause came on properly for hearing before Judge Martinelli. In any event the judgment of dismissal was correct since the petition failed to state a cause of action.
Judgment affirmed.
NOURSE, P. J., and GOODELL, J., concur. --------------- * Subsequent opinion 246 P.2d 38.