Metropolitan News-Enterprise


Monday, January 29, 2018


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Court of Appeal:

$350,000 Bail Is Excessive If Defendant Can’t Raise It

Presiding Justice Anthony Kline Cites a 1979 Proclamation by Jerry Brown on Bail System, Uttered at a Time When He Was That Governor’s Legal Affairs Secretary


By a MetNews Staff Writer


The First District Court of Appeal has held that the setting of bail for a 63-year-old repeat-offender charged with robbery, who has community ties, at $350,000 could be violative of the federal constitutional proscription on excessive bail absent a determination as to his financial ability to post a bond in that amount and without considering alternatives to bail.

Court of Appeal Presiding Justice J. Anthony Kline of Div. Two wrote the opinion, filed Thursday, granting a petition for a writ of habeas corpus as to the setting of bail. In the opinion, Kline quoted from a 1979 statement by then-Gov. Jerry Brown, who is now again governor, deriding the bail system.

The opinion seemingly endorses a current Senate Bill that is in accordance with the views expressed by Brown, at a time he was advised on matters relating to law by Kline, then his legal affairs secretary.

Kline was appointed by Brown the following year to the San Francisco Superior Court and in 1982 to his present post.

In Thursday’s opinion, Kline began:

“Nearly forty years ago, during an earlier incarnation, the present Governor of this state declared in his State of the State Address that it was necessary for the Legislature to reform the bail system, which he said constituted an unfair ‘tax on poor people in California. Thousands and thousands of people languish in the jails of this state even though they have been convicted of no crime. Their only crime is that they cannot make the bail that our present law requires.’ Proposing that California move closer to the federal system, the Governor urged that we find ‘a way that more people who have not been found guilty and who can meet the proper standards can be put on a bail system that is as just and as fair as we can make it.’ (Governor Edmund G. Brown Jr., State of the State Address, Jan. 16, 1979.) The Legislature did not respond.”

Chief Justice’s Remarks

Kline went on to say:

“Undaunted, our Chief Justice, in her 2016 State of the Judiciary Address, told the Legislature it cannot continue to ignore ‘the question whether or not bail effectively serves its purpose, or does it in fact penalize the poor.’ Questioning whether money bail genuinely ensures public safety or assures arrestees appear in court, the Chief Justice suggested that better risk assessment programs would achieve the purposes of bail more fairly and effectively. (Chief Justice Tani Cantil-Sakauye, State of the Judiciary Address, Mar. 8, 2016.) The Chief Justice followed up her address to the Legislature by establishing the Pretrial Detention Reform Workgroup in October 2016 to study the current system and develop recommendations for reform.”

(That group recommended a “a risk-based pretrial assessment and supervision system” to replace the bail system and Cantil-Sakauye said Oct. 24: “I support the conclusion that California’s current pretrial system unnecessarily compromises victim and public safety and agree with the recommendation to replace our current system of money bail with one based on a defendant’s risk to the public.”)

Kline observed that in light of the chief justice’s 2016 remarks, “the Legislature initiated action.” His opinion says:

“Senate Bill No. 10, the California Money Bail Reform Act of 2017, was introduced at the commencement of the current state legislative session. The measure, still before the Legislature, opens with the declaration that ‘modernization of the pretrial system is urgently needed in California, where thousands of individuals held in county jails across the state have not been convicted of a crime and are awaiting trial simply because they cannot afford to post money bail or pay a commercial bail bond company.’ We hope sensible reform is enacted, but if so it will not be in time to help resolve this case.”

Factual Situation

The case at hand involves one tenant of a building—defendant Kenneth Humphrey—entering the apartment of another tenant, age 79, demanding cash and uttering threats of violence, but given the occupant’s lack of resources obtaining only $7 and a bottle of cologne.

At the bail hearing, Deputy District Attorney Julia Cervantes asked San Francisco Superior Court Judge Joseph M. Quinn to keep the bail set at $600,000, the amount called for by the bail schedule. She reminded him that under Penal Code §1275, departure is permitted only in unusual circumstances.

The prosecutor pointed out that Humphrey, who has spent time in prison, has had a “a lifetime battle with drugs” and “continues to feed his habit by any means necessary.”

In the present episode, Cervantes noted, he laid in wait for his victim, a “disabled senior,” and followed him into his apartment.

“The defendant is a flight risk because he’s facing a very long prison sentence in this case,” she asserted.

Defense Lawyer’s Request

Attorney Paul Myslin, representing Humphrey, stressed that this was his client’s first offense in 12 years.

He told the judge:

“I understand that this is a three-strikes case. That is how it’s charged. The prior strikes, however, are very old. I think we’re talking 1980 and ‘86, and the most recent one being from 1992, which is still, I think, 25 years ago.”

He asked that Humphrey be released on his own recognizance (“OR”) and, if that request were denied, that he be placed in a senior citizens facility that proves services to mem who are addicted to drugs.

Quinn responded:

“I appreciate the fact that Mr. Humphrey has had a lengthy history of contact here in the City and County of San Francisco. I also note counsel’s argument that many of his convictions are older in nature; however, given the seriousness of this crime, the vulnerability of the victim, as well as the recommendation from pretrial services, I’m not going to grant him OR or any kind of supervised release at this time.”

He did, however, reduce bail to $350,000.

Myslin protested that Humphrey did not have the financial means “to make even $350,000 bail.”

Appeals Court Opinion

Kline wrote:

“Failure to consider a defendant’s ability to pay before setting money bail is one aspect of the fundamental requirement that decisions that may result in pretrial detention must be based on factors related to the individual defendant’s circumstances.”

He said this is “implicit” in the principles “that a defendant may not be imprisoned solely due to poverty and that rigorous procedural safeguards are necessary to assure the accuracy of determinations that an arrestee is dangerous and that detention is required due to the absence of less restrictive alternatives sufficient to protect the public.”

The jurist declared:

“[T]he trial court erred in setting bail at $350,000 without inquiring into and making findings regarding petitioner’s ability to pay and alternatives to money bail and, if petitioner’s financial resources would be insufficient and the order would result in his pretrial detention, making the findings necessary for a valid order of detention. Petitioner is entitled to a new bail hearing at which he is afforded the opportunity to provide evidence and argument, and the court considers his financial resources and other relevant circumstances, as well as alternatives to money bail. If the court determines that petitioner is unable to afford the amount of money bail it finds necessary to ensure petitioner’s future court appearances, it may set bail at that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose. The court’s findings and reasons must be stated on the record or otherwise preserved.

Kline’s ‘Observations’

Under the heading of “Closing Observations” Kline opined:

“The problem, as our Chief Justice has shown, requires the judiciary, not just the Legislature, to change the way we think about bail and the significance we attach to the bail process. Though legislation is desperately needed, administration of the bail system is committed to the courts. It will be hard, perhaps impossible, for judicial officers to fully rectify the bail process without greater resources than our trial courts now possess. Nevertheless, the highest judicial responsibility is and must remain the enforcement of constitutional rights, a responsibility that cannot be avoided on the ground its discharge requires greater judicial resources than the other two branches of government may see fit to provide. Judges may, in the end, be compelled to reduce the services courts provide, but in our constitutional democracy the reductions cannot be at the expense of presumptively innocent persons threatened with divestment of their fundamental constitutional right to pretrial liberty.”

 The case is In re Humphrey, 18 S.O.S. 464.


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