Friday, May 1, 2026
Page 1
California Supreme Court:
Bail Provisions in State Constitution Can Be Reconciled
Opinion Rejects View That Amendments Adopted as Part of Victim’s Bill of Rights Expand Authority to Remand Pre-Trial Defendants With No Chance for Release, Says Amount Must Be Fairly Attainable
By Kimber Cooley, associate editor
The California Supreme Court yesterday resolved two questions concerning the constitutional limitations placed on bail, announcing that amendments to the state Constitution, adopted following the voters’ passage of the Victim’s Bill of Rights in 2008, do not expand the circumstances under which a judge may opt to remand a party without the chance for release and declaring that the amount of surety required must be tied to a defendant’s ability to pay.
At issue is the interplay between §§12 and 28(f)(3) of Article I of the California Constitution. The former section concerns a defendant’s right to be released on bail pending charges, an entitlement recognized in the state since 1849.
To that end, §12 provides that “a person shall be released on bail by sufficient sureties” except in cases involving “capital crimes,” certain violent felonies, sexual assault offenses, or threats to gravely injure another, if the court finds, by clear and concerning evidence, that there is a substantial likelihood that the person’s release “would result in great bodily harm to others.”
Sec. 28(f)(3), which was added to the Constitution following the passage of Proposition 9 in 2008, specifies:
“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.”
Can Be Reconciled
Chief Justice Patricia Guerrero authored yesterday’s unanimous opinion, joined in by Justice John Shepard Wiley Jr. of this district’s Div. Eight, sitting by assignment, saying:
“We conclude that section 12…and section 28(f)(3) can be reconciled in the following manner: In noncapital cases, a trial court has the authority to deny bail only as to offenses specified in section 12….Section 28(f)(3) refers to the possibility that a defendant ‘may’ be released on bail and mandates that a trial court place primary importance on public and victim safety in making bail determinations. However, section 28(f)(3) does not expand the list of offenses for which release on bail may be denied beyond those delineated in section 12….”
She added:
“[W]e conclude that a court must set pretrial bail in an amount that is reasonable given a noncapital defendant’s constitutional right to release on bail pending trial, the purposes of bail, and the defendant’s individual circumstances—which, as a general matter, means that bail must be set in an amount reasonably attainable for the defendant.”
Justice Joshua P. Groban, joined by Justices Goodwin H. Liu and Kelli Evans, wrote separately to “emphasize that… section 12 provides sufficient latitude for courts to order the pretrial detention of those who would pose a clear danger…if they were released” and that “courts may impose pretrial release conditions designed to protect public…safety and guard against flight risk.”
Wiley also penned a concurring opinion, saying that the decision “invites a legislative and executive response” as those branches “have tremendous advantages over the judiciary” in addressing the concerns of the voters.
Non-Violent Charges
The question arose after Gerald Kowalczyk lost his bid to be released on his own recognizance relating to felony identity theft and other non-violent charges filed against him in 2021. Bail was set at $75,000.
After he filed a written motion seeking a reduction of the surety amount, then-San Mateo Superior Court Judge Susan Greemberg (now serving as a private arbitrator) entered a new order, on June 15, 2021, denying bail altogether based on the defendant’s extensive criminal history and earlier failures to comply with release conditions.
Kowalczyk filed a petition for writ of habeas corpus in Div. Three of the First District Court of Appeal, but he was released following a plea deal while the application was pending. After Div. Three dismissed the petition as moot, the California Supreme Court granted review and transferred the matter back to the appellate court with directions to vacate the dismissal and issue an opinion concerning the interplay between §§12 and 28(f)(3).
In 2022, that court ruled that the sections could be reconciled by upholding the general right to bail in non-capital cases and giving full effect to the mandate that the rights of crime victims be respected in all bail determinations. However, the court additionally concluded that “we reject any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.”
Statutory Interpretation
Recognizing that the question of statutory interpretation at play in large part turns on the meaning of the word “may” in §28(f)(3), as the prosecutors argued that the term reflects the voters’ intent to grant trial courts “broader discretion” to deny bail beyond the “express exceptions” listed in §12, Guerrero said:
“Our case law recognizes that the word ‘…is a common grammatical term encompassing multiple meanings’ such that its connotation can be ambiguous.”
Turning to the historical context for guidance, she opined:
“We are reluctant to conclude that the voters who passed Proposition 9, without enacting any text directly repealing the long-standing right to bail contained in section 12, intended to authorize courts to exercise broad ‘judicial discretion’ in deciding whether to grant bail, given that such discretion has never been part of our state’s law.”
Saying that “we should not lightly infer an intent to create additional exceptions to the right to release on bail outside of those expressly listed in section 12,” she remarked:
“[T]he fact that, in 2008, when the voters passed Proposition 9 and enacted section 28(f)(3), they did not expressly amend section 12, suggests that we should be wary of reading Proposition 9 as impliedly amending that provision.”
Adding that “our harmonization of section 12 and section 28(f)(3) creates no conflict with the requirement that courts consider victim safety in making bail determinations,” she rejected the prosecutors assertion that “[i]f [courts are prohibited from setting of unaffordable bail, and section 12 is held controlling over section 28(f)(3), we [will] see a sudden and uncontemplated right to release emerge for all detainees.” Guerrero wrote:
“[The sections, taken together,] already provide courts with significant latitude to order the detention of dangerous defendants. These protections are bolstered by the highly deferential standard of review that applies when a court’s assessment of a defendant’s dangerousness and its findings under…section 12 are challenged.”
Trial Court Erred
She commented:
“[W]e conclude the trial court in this case erred in denying bail to petitioner without determining whether it could make the findings required for ordering pretrial detention, as set forth in section 12….”
As to limitations on the court’s ability to set the amount of bail, she declared:
“What constitutes reasonable bail in noncapital cases where pretrial detention is not authorized under section 12…is necessarily an individualized assessment which will depend on numerous factors. When it comes to considering monetary bail, the defendant must do more than present conclusory assertions of indigency or an inability to pay….But courts cannot use artificially high or objectively unattainable bail as an end run to effectuate pretrial detention where such detention is not authorized under section 12.”
Reasoning that “some meaning must…be given to the prohibition against excessive bail,” she pointed out that the court has “already held that the ‘common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional’ based on equal protection and due process principles” in the 2021 case of In re Humprey.
She continued:
“If the court finds it necessary to condition release on monetary bail, the court must set bail in an amount that is reasonable, considering the purposes of bail and based on an individualized assessment of the totality of the circumstances in a case, including the defendant’s financial situation.”
The jurist added:
“Our Constitution reflects a balance between a criminal defendant’s general right to pretrial release and the governmental interest in protecting public safety and ensuring the integrity of the criminal justice process while the defendant awaits trial. To the extent the voters desire to adjust that balance, it remains in their power to do so.”
The case is In re Kowalczyk, 2026 S.O.S. 1162.
Copyright 2026, Metropolitan News Company