In re Malotte

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[Crim. No. 3146. First Dist., Div. One. June 24, 1955.]

In re LESLIE C. GILLEN, on Behalf of MABEL MALOTTE, for Bail Pending Appeal.

COUNSEL

Leslie C. Gillen, in pro. per., and John R. Golden for Petitioner.

Edmund G. Brown, Attorney General, Clarence A. Linn, Chief Assistant Attorney General, Raymond M. Momboisse, Deputy Attorney General, Thomas C. Lynch, District Attorney (San Francisco), Norman Elkington, Chief Assistant District Attorney, and Walter H. Guibbini, Assistant District Attorney, for Respondent.

OPINION

PETERS, P. J.

This is an application for bail pending appeal under rule 32(b) after the trial court denied the application. After the filing of the application in this court the applicant was permitted to file additional affidavits relative to her present health and physical condition. The district attorney and attorney general were also permitted to file counteraffidavits.

[1] When a convicted person seeks bail from an appellate court under rule 32(b) the appellate court can grant bail after a denial by the lower court only if the appellate court finds that the denial by the lower court was unjustified. [2] Since on the showing made in the lower court the denial of bail was not "unjustified," and since the only affidavits that would support the granting of bail are those filed in this court, it would seem that in such circumstances the present application should be denied and the petitioner granted leave to renew the application in the trial court based on the subsequent affidavits. (People v. Perdue, 48 Cal. 552; Ex parte Curtis, 92 Cal. 188 [28 P. 223].)

The application is denied with permission granted to petitioner to renew the application for bail in the trial court based upon the affidavits filed in this court and any other relevant evidence available.

Bray, J., and Wood (Fred B.), J., concurred.