Thursday, August 16, 2018
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Court of Appeal Orders Lowering of $300,000 Bail
Says Judge Who Boosted Amount Erred in Speculating That the Defendant, Accused of Swindling People Who Trusted Him, Could Use Persuasive Powers in Causing Someone to Provide Funds
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday declared that a judge abused her discretion in boosting bail from $100,000 to $300,000 on the assumption that the alleged con man could persuade someone to provide that sum.
Defendant William Avignone and his wife are accused of perpetrating a scheme through which they swindled investors out of $786,000. Avignone initially pled guilty and appealed his sentence; the Court of Appeal last year held that he could withdraw his plea; he did; San Diego Superior Court Judge Melinda Lasater last December tripled the amount of the bail.
At a hearing at which the amount was reconsidered in light of recent case law, his lawyer pointed out that Avignone was now penniless.
Trial Court’s Rationale
Lasatar responded:
“There’s a difference between someone’s current financial status and their [sic] ability to post bail. I think it would be reasonable at this point to say that the defendants currently have a financial status that really shows no assets....However, the ability to post bail doesn’t—can also include someone’s ability to get others to post bail. And in this particular case in light of this history the one that that I am having a really hard time ignoring, and I can’t ignore, and I haven’t ignored is that these defendants have a very definite gift. The power of persuasion. And they were able to get people who were their friends, people who trusted them to give them large amounts of money to invest....
“I think they have the ability to persuade.
“So what I’ve done is taking the different people that they persuaded, and it’s the largest amount that they were able to persuade from one [in] particular was 355,000. So I’ve used that as my base. I think that’s a reasonable approach to the situation that they have been able to persuade somebody to give them $355,000.”
Lasatar did not increase bail to that amount, however, maintaining it at $300,000.
Habeas Corpus
Div. One yesterday granted a petition for writ of habeas corpus, directing the superior court to conduct a new bail hearing. Acting Presiding Justice Richard Huffman wrote the opinion.
He said of Lasatar’s theory that Avignone could persuade someone to put up the money:
“This conclusion is entirely speculative. It assumes Avignone would be able to run a fraudulent investment scheme while in custody and then use the money he duped others to invest to make bail. In this sense, the court did not properly consider Avignone’s ability to pay, but instead, looked at the charged crimes and determined that Avignone would be able to commit like crimes to raise a similar amount of money that he could then use to pay bail. The court offered a hypothetical situation, based on the charged crimes, by which Avignone could hoodwink others to pay his bail.”
Jan. 25 Decision
Lasatar was asked to reconsider the amount of bail in light of the First District’s Jan. 25 decision in In re Humphrey. There, Presiding Justice J. Anthony Kline wrote, for Div. Two, that in setting bail, a court must consider “whether the defendant has the financial ability to pay the amount of bail ordered and, if not, whether less restrictive conditions of bail are adequate to serve the government’s interests.”
Huffman noted that Humphrey has no precedential value because the California Supreme Court on May 23 granted review. He said in a footnote:
“[I]ndependent of Humphrey, we are concerned about a court setting bail in an amount that constitutes de facto detention. Our trepidation is even more triggered in a situation like the one here, where a defendant’s counsel explicitly requests the court to consider the defendant’s ability to pay and the court does so improperly.”
The jurist pointed out, in Avignone’s favor:
“Before December 2017, he had been out on bail for four years. During that time, he made all court appearances and did not engage in criminal activity.”
He declared:
“Although we realize the abuse of discretion standard is highly deferential, this is the rare case where we conclude the court’s decision here was arbitrary, capricious, and resulted in a miscarriage of justice. On the unique facts before us, the increase of Avignone’s bail to $300,000 as a condition of pretrial release is the functional equivalent of a pretrial detention order….It cannot stand.”
The case is In re Avignone, D074231.
Copyright 2018, Metropolitan News Company