Metropolitan News-Enterprise


Thursday, April 30, 2020


Page 1


Court of Appeal:

Emergency State Rule Prescribing $0 Bail Is Not Mandatory

Opinion Says Judicial Council’s Use of the Word ‘Must’ Does Not Indicate That Superior Courts Are Deprived of  Their Discretion to Require That Some Money Be Put Up Or to Impose Conditions


By a MetNews Staff Writer


Superior courts have the discretion to deviate from the $0 bail schedule set by the Judicial Council’s emergency rule applicable to those accused of nearly all misdemeanors and lower-level felonies, Div. One of the Fourth District Court of Appeal held yesterday.

That bail schedule, like schedules established by superior courts, merely sets a “presumptive” amount, the opinion declares, despite the word “must” in the rule.

Justice Patricia Guerrero wrote that opinion. It denies a petition for a writ of mandate challenging a general order promulgated by San Diego Superior Court Presiding Judge Lorna A. Alksne. The order says it “implements” the Judicial Council’s “Emergency Rule 4,” while the Public Defender’s Office contends the order contravenes that rule.

That rule, adopted on April 6 at the behest of Chief Justice Tani Cantil-Sakauye, is intended to reduce the population of jails in light of the COVID-19 pandemic. It establishes an Emergency Bail Schedule (“EBS”) of $0 for “all misdemeanor and felony offenses” except those in 13 enumerated categories, the first being “serious” or “violent” felonies.

Alksne’s order, issued on April 13—the day Emergency Rule 4 went into effect—declares:

“For persons arrested prior to the effective date and time of this order, bail shall be set in accordance with the EBS. However, the court retains the traditional authority in an individual case to depart from the bail schedule or impose conditions of bail to assure the appearance of the defendant or protect public safety.”

District Attorney Acts

The order sets forth a procedure for prosecutors to seek the setting of bail in an actual monetary amount and for swift judicial action on the requests. San Diego District Attorney Summer Stephan acted to block the immediate release of 135 persons, including a defendant accused of elder abuse.

The petition was brought by the Office of San Diego Public Defender seeking the release of persons for whom bail is sought in an actual monetary amount or with conditions imposed. They contend that the only permissible exception to the EBS is the outright denial of bail, as authorized by the state Constitution.

Guerrero wrote:

“We conclude the implementation order is not inconsistent with Emergency Rule 4. The history and language of the rule show that the Judicial Council intended to adopt a statewide bail schedule, which like countywide bail schedules sets the presumptive bail amount for the covered offenses and violations. The Judicial Council did not intend to suspend the array of statutes governing bail, as well as the superior court’s inherent authority, which allow the court to depart from the scheduled bail amount or impose bail conditions in individual cases under appropriate circumstances.”

Rule Says ‘Must’

The emergency rule sets forth:

“Under the statewide Emergency Bail Schedule, bail for all misdemeanor and felony offenses must be set at $0, with the exception of only the offenses listed below.”

The petitions argued:

“In no uncertain terms, the Chief Justice of the California Supreme Court and the Judicial Council ordered that bail ‘must’ be set at $0 unless certain exceptions apply.”

Guerrero responded:

“We disagree. The rule does not simply mandate zero bail for the covered offenses, irrespective of theayala.docx particular facts of each defendant’s case. Instead, it adopts a statewide Emergency Bail Schedule, under which bail for the covered offenses is zero dollars. At the very least, the rule’s focus on a bail schedule, which has an established meaning and function in setting bail that is not mandatory, introduces ambiguity regarding the superior court’s authority to depart from the zero bail amount under Emergency Rule 4. The rule can reasonably be interpreted, as urged by the district attorney, to preserve the court’s existing authority to increase bail from the scheduled zero bail amount if the circumstances and existing statutes allow such a departure.”

Chief Justice’s Effort

The jurist said that Cantil-Sakauye initially suggested that superior courts amend their countywide bail schedules to set the amount for all but the most serious offenses at $0. Those county bail schedules contain presumptive amounts so, the Judicial Council, in establishing a statewide schedule, intended the amounts likewise to be merely presumptive, she reasoned, elaborating:

“The rule, after all, does not simply mandate zero bail for the covered offenses. It establishes a statewide bail schedule to be applied by trial courts. Absent some persuasive indication to the contrary, we must give effect to the established meaning of this concept and its role in the statutes governing bail.”

Emergency Rule 4 is one of 13 emergency rules in response to the pandemic.

The case is Ayala v. Superior Court, 2020 S.O.S. 2000.


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