Watts was convicted in the superior court of San Bernardino County of murder in the first degree, without recommendation, and judgment was duly rendered imposing the death penalty. He gave oral notice of appeal in open court at the time of the rendition of judgment and thereafter filed his written notice of appeal therefrom. A warrant of execution was duly signed, attested, issued, and delivered to the sheriff in accordance with the provisions of Penal Code, section 1217, pursuant to which Watts was taken by the sheriff to San Quentin and there delivered to the custody of the warden of the state prison. Thereafter, upon application of the defendant, the trial judge issued a certificate of probable cause pursuant to the provisions of Penal Code, section 1243, and the same was thereupon duly served upon the sheriff of San Bernardino County and also upon the warden of the state prison of San Quentin, coupled with a demand that the defendant be redelivered to the sheriff of San Bernardino County and returned to the county jail of that county, to be there kept pending the hearing and determination of his appeal. These demands being refused, application was made to this court for a writ of habeas corpus to compel the return of the defendant to the custody of the sheriff of San Bernardino County. At the conclusion of the hearing before this court upon the return to the writ, it was the opinion of the majority of the justices that the application should be granted and an order to this effect was thereupon made from the bench.
Section 1243 of the Penal Code provides as follows:
"An appeal to the supreme court from a judgment of conviction stays the execution of the judgment in all capital cases, and in all other cases, upon filing with the clerk of the court in which the conviction was had, a certificate of the judge of such court, or of a justice of the supreme court, *Page 613 that, in his opinion, there is probable cause for the appeal, but not otherwise."
Section 1244 of the Penal Code provides:
"If the certificate provided for in the preceding section is filed, the sheriff must, if the defendant be in his custody, upon being served with a copy thereof, keep the defendant in his custody without executing the judgment, and detain him to abide the judgment on appeal."
Section 1245 of the Penal Code provides:
"If before the granting of the certificate, the execution of the judgment has commenced, the further execution thereof is suspended, and upon service of a copy of such certificate the defendant must be restored, by the officer in whose custody he is, to his original custody."
The requirement of Penal Code, section 1217, that a defendant upon whom sentence of death has been imposed shall be confined in a state prison pending the execution thereof is a part of the punishment for the crime and is in addition to the punishment therefor which was provided prior to 1891 (Ex parteMedley, 134 U.S. 160 [33 L.Ed. 835, 10 Sup. Ct. Rep. 384, see, also, Rose's U.S. Notes]; People v. McNulty, 3 Cal. Unrep. 441 [28 P. 816]; Id., 93 Cal. 427 [26 P. 597, 27 P. 61];People v. Durrant, 119 Cal. 201, 208 [51 P. 185]). We are of the opinion, however, that by the amendment of 1874 to the Penal Code, section 1243, whereby it was provided that an appeal from a judgment of conviction stays the execution of the judgment in all capital cases, the legislature intended that the taking of an appeal should automatically stay the execution of the death penalty alone. (Ex parte Fredericks, 104 Cal. 400 [38 P. 51].) Obviously, the execution of the defendant pending his appeal would render the appeal utterly valueless, and the legislature intended that such a result should not be dependent upon the hazard of granting or failing to grant a certificate of probable cause. This consideration, however, presents no reason why the taking of an appeal from the judgment of conviction should automatically stay the execution of that portion of the death warrant which requires the detention of the defendant in a state prison pending the infliction of the death penalty. We are of the opinion that this portion of the punishment is comprised within the phrase "in all other cases," and *Page 614 is not stayed, therefore, except upon the issuance of a certificate of probable cause. This view is suggested by what was said in Ex parte Fredericks, supra, wherein this court said: "Even if this imprisonment is to be regarded as a part of the penalty it stands upon the same grounds as other judgments of imprisonment. It is not stayed without a certificate of probable cause for the appeal, . . ." That a certificate of probable cause may issue in a capital case is the implication which arises out of what was said or done by this court, or by the justices thereof, in the following cases: People v. McNulty, 95 Cal. 594, 597 [30 P. 963]; Ex parte Fredericks, supra; People v.Durrant, 119 Cal. 54 [51 P. 1070]; People v. Ebanks (not reported, but referred to in People v. Durrant, 119 Cal. 210 [51 P. 185]); People v. Sliscovitch (an order of this court made October 6, 1923, not reported); People v. Arnold andSayer (an order of this court made March 12, 1925, not reported). The only suggestion to the contrary to be found in our reports, so far as we are advised, is in the opinion of Chief Justice Beatty in People v. Ross, 135 Cal. 59 [67 P. 13]. That is not an opinion of the court and has never been expressly approved or disapproved by the court. The principal ground upon which the Chief Justice based his conclusion in that case has since been eliminated by the 1905 amendment to section 1227 of the Penal Code, taking away the right to appeal from an order fixing the time for the execution of the death penalty.
Our conclusion is that upon an appeal from a judgment imposing the death penalty a certificate of probable cause may be issued by the judge of the trial court or a justice of this court, the effect of which is to stay the execution of so much of the judgment as requires the imprisonment of the defendant in a state prison pending the hearing and determination of his appeal. [4] The granting or denial of such certificate is a matter within the sound discretion of the judge or justice to whom application therefor is made.
Waste, J., Lennon, J., Richards, J., and Shenk, J., concurred.