Pretrial detention order must be based on individualized assessment

NICHOLAS YEDINAK, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; THE PEOPLE, Real Party in Interest. (Cal. Ct. App., June 23, 2023, No. E080685) 2023 WL 4144994

Summary: Yedinak petitioned for a writ of mandate challenging the trial judge’s order denying him bail. He argues the order fails to satisfy the legal requirements for pretrial detention articulated in article I, section 12, subdivision (b) of the California Constitution (section 12(b)) and In re Humphrey (2021) 11 Cal.5th 135 (Humphrey).

Yedinak was charged with two counts of felony child abuse based on allegations he inflicted severe, non-accidental injuries to his six-week-old son. Yedinak had been out on bail for  two years and nine months making each court appearance and living in the community without incident. After his preliminary hearing, the judge issued a pretrial detention order based on a finding that other children in the community would probably not be safe if Yedinak were released pending trial, given the violent nature of the charged crimes.

“While due process does not categorically prohibit the government from ordering pretrial detention, it remains true that ‘[i]n our society liberty is the norm, and detention prior to trial … is the carefully limited exception.’ ” (Humphrey, supra, 11 Cal.5th at p. 155.) Pretrial detention of a person charged with a violent felony, under section 12(b) and Humphreyrequire findings, by clear and convincing evidence, that the person’s release would result in a substantial likelihood of great bodily harm to others and that less restrictive conditions are insufficient to vindicate the state’s interest in protecting public safety. (§ 12(b); Humphrey, at p. 143.) “Allowing the government to detain an arrestee without such procedural protections would violate state and federal principles of equal protection and due process that must be honored in practice, not just in principle.” (Humphrey, at p. 143.) Yedinak’s pretrial detention order was not based on the individualized assessment section 12(b) and Humphrey require The Court of Appeal granted his petition and direct the judge to vacate the order and hold a new bail hearing.

Legal Requirements for Pretrial Detention Orders under Section 12(b)

“It is one thing to decide that a person should be charged with a crime, but quite another to determine, under our constitutional system, that the person merits detention pending trial on that charge.” (Humphrey, supra, 11 Cal.5th at p. 147.) Because “those incarcerated pending trial… unquestionably suffer a direct grievous loss of freedom in addition to other potential injuries,” detention prior to trial “is the carefully limited exception.” (Humphrey, supra, 11 Cal.5th at pp. 142, 155 [cleaned up].)

The California Constitution entitles arrestees to bail unless one of a limited number of exceptions applies. (Cal. Const., art. I, § 12.) The exception, set out in section 12(b), provides that a trial judge may deny bail when a defendant is charged with a felony offense “involving acts of violence on another person … when the facts are evident or the presumption great” and the judge “finds based upon clear and convincing evidence that there is a substantial likelihood the person’s release would result in great bodily harm to others.”

This violent felony exception requires that the record contains sufficient evidence of the crime to “sustain a conviction” on appeal.

A“substantial likelihood” the person’s release would result in “great bodily harm” to others “requires more than a mere possibility, and it cannot be based on speculation about the general risk to public safety if a defendant is released.” (In re White (2018) 21 Cal.App.5th 18, 28.) Section 12(b) “requires more than simply a violent history.” (In re White, at p. 28.) Rather, the judge “must be convinced that future violence amounting to great bodily injury is substantially likely if the defendant were released on bail.” Proof that the arrestee is dangerous to others must be established by “clear and convincing evidence.” (§ 12(b); see White, supra, 9 Cal.5th at p. 467

Humphrey concluded “[pretrial] detention is impermissible unless no less restrictive conditions of release can adequately vindicate the state’s compelling interests.”

To satisfy this requirement, a trial court must consider each alternative, less restrictive condition and “articulate its analytical process as to why such alternatives could not reasonably protect the government’s interest.”

Humphrey identified the following examples of less restrictive conditions: “electronic monitoring, supervision by pretrial services, community housing or shelter, stay-away orders, and drug and alcohol testing and treatment.” (Humphrey, supra, 11 Cal.5th at p.154.)

Humphrey also held that “[a] court’s procedures for entering an order resulting in pretrial detention must … comport with other traditional notions of due process,” which includes the “obligation to set forth the reasons for its decision on the record and to include them in the court’s minutes.” (Humphrey, supra, 11 Cal.5th at p. 155.) “Such findings,” the Court explained, “facilitate review of the detention order, guard against careless or rote decisionmaking, and promote public confidence in the judicial process.” (Id. at pp. 155-156.)

Four legal requirements for pretial detention under 12(b)

 The judge must: (1) find there is sufficient evidence to sustain a guilty verdict against the arrestee on a qualifying felony; (2) find by clear and convincing evidence a substantial likelihood that the arrestee’s release would result in great bodily harm to others; (3) find by clear and convincing evidence that no less restrictive condition than detention can reasonably protect the interests in public or victim safety, and the arrestee’s appearance in court; and (4) set forth the reasons for their decision on the record and include them in the minute order.

Here, the judge did not make a finding as to whether the “facts were evident or the presumption great”—that is, whether the record contained substantial evidence Yedinak had committed a qualifying offense under section 12(b).

Second, the judge’s finding that other children in the community would “probably” not be “safe” if Yedinak were released falls short of the standard set out in section 12(b) requiring a finding that the person’s release would pose a substantial likelihood of great bodily harm, not, as the judge found here, a probability of a general threat to safety.

Here, the fact Yedinak had no history of violence aside from the serious crimes he is charged with in this case and the fact he’d been released for nearly three years with no violent incidents are also relevant to whether pretrial detention is necessary.

Third, the judge was required to make the risk of harm finding by clear and convincing evidence, and nothing in the record indicates she was aware of that “additional hurdle” imposed by our state’s Constitution.

Fourth, the judge considered only a single less restrictive alternative: an order prohibiting Yedinak from being in the unsupervised presence of children. Under Humphrey not only must she consider more than one alternative, she must also—in the event she finds the considered alternatives insufficient to protect public safety—articulate why and make the finding by clear and convincing evidence. T

he pretrial detention order does not satisfy the requirements set out in section 12(b) and Humphrey.

Disposition

A petition for writ of mandate was issued directing the Superior Court to vacate its pretrial detention order and hold a new hearing at which it considers Yedinak’s motion to set affordable bail in a manner that is consistent with section 12(b) and the Supreme Court’s decisions.

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