Green v. Gordon , 39 Cal. 2d 230 ( 1952 )

GIBSON, C. J.

In 1932, petitioner was convicted of murder and sentenced to death. After affirmance of the conviction (People v. Green, 217 Cal. 176 [17 P.2d 730]), Governor Rolph commuted the sentence to “life imprisonment without parole.” Because of the terms of the commutation, the Adult Authority has refused to entertain petitioner’s application for parole.

The superior court issued an order to show cause why mandate should not be granted to compel the Adult Authority to consider petitioner’s application.^* The return consisted of a general demurrer to the petition, and at the hearing thereon the court rendered a judgment of dismissal, from which petitioner has appealed.

He contends that by issuing the order to show cause the trial court passed upon the sufficiency of the petition and thereafter had no power to dispose of the matter without making express findings on the issues presented. An order to show cause is in the nature of a citation to a party to appear at a stated time and place to show why the requested relief should not be granted. (See Difani v. Riverside County Oil Co., 201 Cal. 210, 213-214 [256 P. 210].) Obviously, a showing on general demurrer that the petition does not state sufficient facts to justify relief is a complete answer to an order to show cause, and the court is then warranted in discharging the order and dismissing the proceeding.

We recently held that a commutation of sentence is in the nature of a favor which, under article VII, section 1, of the Constitution, may be withheld entirely or granted upon such reasonable conditions, restrictions and' limitations as the governor may think proper, that the general statutory regulations relating to parole (Pen. Code. § 3040 et seq.) did not amount to an attempt to interfere with the governor’s power, and that the withholding of parole upon the commutation of a death sentence to life imprisonment was not unreasonable. (In re Collie, 38 Cal.2d 396, 398-399 [240 P.2d 275].) It is, of course, a possibility that in some types of cases the terms of a commutation may be more objectionable to the prisoner than the punishment fixed by his sentence, and a commutation may not be imposed on him without his consent. (Cf. In re Peterson, 14 Cal.2d 82, 84-85 [92 P.2d 890].) If he accepts the commutation, however, he must take it subject to the specified conditions. Thereafter the validity of the conditions depends on their reasonableness and the condition imposed here must be held to be a reasonable one. (See In re Collie, supra.)

Petitioner concedes that the Legislature cannot interfere with the governor’s power to commute a sentence of death, but he claims that the Legislature has exclusive control over penalties for crimes, and that the punishment which has been provided for first degree murder is either death or life imprisonment with the possibility of parole. He argues that the governor cannot impose a different punishment, i.e., imprisonment for life without the possibility of parole. The penalties prescribed by statute, however, are the ones to be imposed by the trial court upon conviction of murder, and the statutory provisions relating to such penalties and the right to parole do not purport to limit the governor’s power to impose conditions upon a commutation of sentence. (See Pen. Code, §§ 190, 3040 et seq.)

The judgment is affirmed.

Shenk, J., Edmonds, J., Traynor, J., Sehauer, J., and Spence, J., concurred.

* Although habeas corpus may be used to test the validity of the terms of a commutation (In re Collie, 38 Cal.2d 396, 397-398 [240 P.2d 275], a petitioner may also use mandate to compel the Adult Authority to entertain an application for parole if it has wrongfully refused to pass on the application. (Cf. Hollman v. Warren, 32 Cal.2d 351, 355 [196 P.2d 562]; Lindell Co. v. Board of Permit Appeals, 23 Cal.2d 303, 315 [144 P.2d 4].)