No unqualified right to Pretrial Release or affordable bail  

In re Kowalczyk (Cal. Ct. App., Nov. 21, 2022, No. A162977) 2022 WL 17098702, at *1

Summary: Kowalczyk filed a petition for writ of habeas corpus challenging the trial court’s decision denying him bail. The California Supreme Court granted review and transferred the matter back to the Court of Appeal  with directions to “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.”

The Court concluded that the bail provisions of article I, section 28, subdivision (f)(3) can be reconciled with those of article I, section 12 (section 12 and section 28(f)(3)) and that both sections govern bail determinations in noncapital cases. Section 12 ’s general right to bail in noncapital cases remains intact, and full effect must be given to section 28(f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. Section 12 does not guarantee an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.

Factual And Procedural Background

Kowalczyk was charged with one felony count of vandalism (Pen. Code, § 594, subd. (b)(1)), three felony counts of identity theft (id. § 530.5, subd. (a)), one misdemeanor count of petty theft of lost property (id. § 485), and one misdemeanor count of identity theft (id. § 530.5, subd. (c)(1)). The court set bail at $75,000. Prior to his preliminary hearing, petitioner filed a motion seeking release on his own recognizance (OR) with drug conditions and electronic monitoring, arguing that he posed no danger to the alleged victims or the community and was a minimal risk for nonappearance at future court proceedings.

At a hearing in May 2021, the prosecutor opposed the bail motion and requested that bail remain set at $75,000. According to the prosecutor, the judge who initially set bail determined that petitioner posed a danger to the public based on the recommendation of a pretrial services report and on petitioner’s extensive RAP sheet. The prosecutor argued that no less restrictive nonfinancial conditions could protect the public from him.

The court denied bail altogether and ordered petitioner detained. The court observed that petitioner was a chronic reoffender whose RAP sheet documented 64 prior convictions and was over 100 pages long.  Kowalczyk received the maximum score of 14 on the Virginia Pretrial Risk Assessment Instrument, and the pretrial services report indicated he had failed to abide by supervised OR conditions in the last five years. The court also indicated its concern that petitioner might abscond, noting his convictions spanned multiple states and multiple counties in California. The court noted his unprecedented “level of recidivism,” the court found that no nonfinancial or financial conditions could accomplish the goals of protecting the public or ensuring petitioner’s appearance at future court proceedings.

Proposition 9 in 2008

Proposition 9—entitled the “ ‘Victims’ Bill of Rights Act of 2008: Marsy’s Law’ ”—proposed to amend section 28 as added to the Constitution in 1982, including the bail provisions previously held inoperative. Proposition 9 amended section 28, subdivision (a), to provide that crime victims had the personally enforceable rights described in subdivision (b)(1) through (17). (Voter Information Guide, Gen. Elec., supra, text of Prop. 9, § 4.1, p. 129.) In particular, subdivision (b)(3) of section 28 guaranteed the right of crime victims “[t]o have the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.”

The Humphrey Decision

The Supreme Court held it unconstitutional to detain arrestees solely because they lack financial resources. (Humphrey, 11 Cal.5th at p. 156.) The  court emphasized that bail determinations require “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.”

The Humphrey court gave  the following general framework for pretrial release and detention determinations: “Where the record reflects the risk of flight or a risk to public or victim safety, the court should consider whether nonfinancial conditions of release may reasonably protect the public and the victim or reasonably assure the arrestee’s presence at trial. If the court concludes that money bail is reasonably necessary, then the court must consider the individual arrestee’s ability to pay, along with the seriousness of the charged offense and the arrestee’s criminal record, and—unless there is a valid basis for detention—set bail at a level the arrestee can reasonably afford. And if a court concludes that public or victim safety, or the arrestee’s appearance in court, cannot be reasonably assured if the arrestee is released, it may detain the arrestee only if it first finds, by clear and convincing evidence, that no nonfinancial condition of release can reasonably protect those interests.” “(D)etention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.”

The Humphrey court expressly noted that “[e]ven when a bail determination complies with the above prerequisites, the court must still consider whether the deprivation of liberty caused by an order of pretrial detention is consistent with state statutory and constitutional law specifically addressing bail—a question not resolved [in Humphrey]—and with due process.” In a footnote accompanying this statement, the court noted it was leaving unresolved the question of whether section 12 and section 28(f)(3) “can or should be reconciled, including whether these provisions authorize or prohibit pretrial detention of noncapital arrestees outside the circumstances specified in section 12, subdivisions (b) and (c).” (Humphrey, at p. 155, fn. 7, 276 Cal.Rptr.3d 232, 482 P.3d 1008; In re White (2020) 9 Cal.5th 455, 470, 262 Cal.Rptr.3d 602, 463 P.3d 802.) The California Supreme Court has directed this court to resolve that open issue.

Section 12 and section 28(f)(3) can be reconciled and each given full effect

Section 12 provides in part: “A person shall be released on bail by sufficient sureties, except for:

 (a) Capital crimes …;

 (b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person … and the court finds … that there is a substantial likelihood the person’s release would result in great bodily harm to others; or

(c) Felony offenses … and the court finds … that the person has threatened another with great bodily harm and that there is a substantial likelihood that the person would carry out the threat if released.” Section 12 further 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.”

Section 28(f)(3) provides: “Public Safety Bail. 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.  A person may be released on his or her own recognizance in the court’s discretion, subject to the same factors considered in setting bail.  Before any person arrested for a serious felony may be released on bail, a hearing may be held before the magistrate or judge, and the prosecuting attorney and the victim shall be given notice and reasonable opportunity to be heard on the matter.  When a judge or magistrate grants or denies bail or release on a person’s own recognizance, the reasons for that decision shall be stated in the record and included in the court’s minutes.”

Section 12 states that a person “shall be released on bail by sufficient sureties,” while section 28(f)(3) says that a person “may be released on bail by sufficient sureties.”

Section 28(f)(3)’s use of the term “may,” is  permissive. (Standish, s, 38 Cal.4th at p. 869.) Given that section 12 was fully operative when Proposition 9 was presented to the voters and approved, the most natural reading of section 28(f)(3)’s phrase “[a] person may be released on bail by sufficient sureties” is that the phrase is a declarative statement of existing law.  The phrase acknowledges that a person may or may not be released on bail, consistent with the dictates in section 12 that a person is generally entitled to bail release in noncapital cases except under the circumstances articulated in section 12(b) and (c), or when a person may not be able to post bail as set.

Construing section 28(f)(3) in this manner fully promotes the voters’ intent to “preserve and protect” the right of crime victims “to justice and due process” by having “the safety of the victim and the victim’s family considered in fixing the amount of bail and release conditions for the defendant.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2008), text of Prop. 9, § 4.1, p. 129; id., arguments in favor of Prop. 9, p. 62.) Section 28(f)(3) accomplishes this by requiring that (1) all bail determinations take into consideration and give primacy to protection of the public and victim safety6; (2) all OR determinations be subject to the same factors considered in setting bail; and (3) victims be notified and provided a reasonable opportunity to be heard “[b]efore any person arrested for a serious felony may be released on bail.” These victim safety provisions do not conflict with section 12 or otherwise impede its operation; they simply mandate additional considerations in bail and OR determinations in noncapital cases. Construing the first sentence of section 28(f)(3) as declarative of the general right to bail allows for complete reconciliation of section 28(f)(3) and section 12.

Bail and OR release after Humphrey

  Humphrey meaningfully restricts, but does not eliminate, the traditional power of a court to set bail at an amount that may prove unaffordable, so long as the court—after undertaking an individualized consideration of all relevant factors including the defendant’s ability to pay—makes the necessary findings to support a detention. The court must find clear and convincing evidence that no other conditions of release, including affordable bail, can reasonably protect the state’s interests in assuring public and victim safety and the arrestee’s appearance in court. A person’s inability to post the court-ordered bail amount necessarily results in the person’s detention, but the person’s financial condition is not the determinate cause of detention. Rather, the cause of the detention is the court’s finding that no other conditions short of detention are sufficient to vindicate the state’s interests.

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