Answers Question Posed by California Supreme Court in Moot Case
By a MetNews Staff Writer
Two state constitutional provisions on bail—one harking to a provision of the original 1848 state Constitution, carried over to the 1879 Constitution and relocated and amended in 1974, and the other added by voters in 2008—are reconcilable, Div. Three of the First District Court of Appeal declared yesterday in an opinion in which it found there to be no right to have bail set at a level that is affordable to the defendant.
The California Supreme Court had, in essence, certified to the Court of Appeal a question raised in a petition for a writ of habeas corpus which Div. Three on March 11 dismissed as moot after the petitioner pled guilty and was sentenced. The high court directed that the panel “issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases—article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution —or, in the alternative, whether these provisions can be reconciled.”
They can be reconciled, Justice Carin T. Fujisaki said in yesterday’s response to the Supreme Court’s query as to an issue the high court is bound to itself resolve. After so answering, Div. Three again dismissed the petition as moot.
Art. 1, §12
Art. 1, §12, declares that there is a right to bail except as to some capital cases and certain other felony cases, enumerated in subds. (a)-(c). It then provides:
“Excessive bail may not be required. In fixing the amount of bail, the court shall take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case.
“A person may be released on his or her own recognizance in the court’s discretion.”
Art. 1, §28(f)(3) says:
“A person may be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great. Excessive bail may not be required. In setting, reducing or denying bail, the judge or magistrate shall take into consideration the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at the trial or hearing of the case. Public safety and the safety of the victim shall be the primary considerations.”
“Section 28(f)(3) became fully operative when the voters approved Proposition 9 in 2008, and its bail provisions can be fully reconciled with those in section 12, as follows. When a defendant’s case falls outside the circumstances specified in section 12, subdivisions (a) through (c), the defendant has a general right under sections 12 and 28(f)(3) to be released on bail by sufficient sureties, or to be released on OR in the court’s discretion, subject to the considerations below.
“In fixing the amount of bail and release conditions, or in exercising its discretion to release a person on OR, courts must consider the protection of the public, the safety of the victim, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of the defendant appearing at the trial or hearing of the case….Public safety and the safety of the victim shall be the primary considerations.”
The jurist noted that “Proposition 9 did not propose to repeal section 12.”
High Court Decision
Last year, in In re Humphrey, the California Supreme Court declared that a person may not be denied pre-trial release solely because of lack of means to raise bail. It said that there must be “an individualized consideration of the relevant factors,” including “the protection of the public as well as the victim, the seriousness of the charged offense, the arrestee’s previous criminal record and history of compliance with court orders, and the likelihood that the arrestee will appear at future court proceedings.”
“Although the Humphrey court made clear that a trial court must consider a defendant’s ability to pay in making a bail determination, Humphrey did not suggest that a court is precluded from setting bail at an amount beyond a defendant’s means when necessitated by the circumstances presented.”
‘Most Natural Reading’
“When viewed as a whole, and with reference to section 28(f) (3)’s additional considerations of public and victim safety, the most natural reading of section 12 is that a person has a right to be released upon the posting of a sufficient security which a court, in its discretion, determines is adequate to accomplish the purposes of bail, i.e., to protect public and victim safety and to ensure a defendant’s presence in court….This construction clearly promotes the constitutionally-based policy purposes of bail, while a contrary construction that categorically requires release on affordable bail does not.”
The justice commented:
“While section 12 does not prohibit courts from fixing bail at an amount a defendant likely cannot meet, it will be the rare case where such a monetary condition is truly necessary to sufficiently protect the state’s compelling interests in public and victim safety and in ensuring appearances in court.”
The case is In re Kowalczyk, 2022 S.O.S. 5766.
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