Opinion
H049862
07-20-2023
In re LEIF MICHAEL AMES, on Habeas Corpus.
NOT TO BE PUBLISHED
(Santa Cruz County Super. Ct. No. 21CR04720)
Danner, Acting P.J.
In March 2020, the Santa Cruz County District Attorney charged Leif Michael Ames by complaint with murder and a weapon-use enhancement. The trial court set bail at $750,000. More than nine months later, after a preliminary hearing, the trial court arraigned Ames on an information charging the same offense and enhancement. The bail remained unchanged. About eight months after that arraignment, Ames posted a $750,000 bail bond and was released from custody. A few days later, the district attorney moved the trial court to detain Ames without bail, based solely on facts present in the record prior to Ames's release from custody. The trial court granted the motion, remanded Ames back into custody, and ordered that he be held without bail.
Ames filed a petition for writ of habeas corpus (petition) in the superior court challenging the trial court's order detaining him without bail. A judge of the superior court (hereafter habeas court) granted the petition and ordered that Ames be readmitted to bail. The district attorney has appealed, contending the habeas court erred in granting Ames's petition and ordering him released on bail pending trial.
For the reasons explained below, we affirm the habeas court's decision granting habeas corpus relief.
I. FACTS AND PROCEDURAL BACKGROUND
A. Trial Court Proceedings
On March 23, 2020, the district attorney filed a complaint charging Ames with one count of murder (Pen. Code, § 187 ; count 1) and a weapon-use (knife) enhancement (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). A magistrate found probable cause to believe Ames committed a crime based on a police officer's declaration that stated: "On 3-21-20, the victim went to [an address] to check on his friend Leif Ames due to some odd behavior he was displaying. While at the house the victim was attempting to help [Ames] and get him some water. As the victim was in the kitchen, [Ames] stabbed the victim multiple times in the back with a knife. The victim succumbed to his injuries due to the stab wounds. [Ames] was taken into custody and interviewed at Sheriff's HQ. [Ames] made admissions about stabbing the victim with a knife. [Ames] was later booked into the Main Jail on murder charges." Bail was set at $750,000.
Unspecified statutory references are to the Penal Code.
The next day, at Ames's arraignment on the complaint, the district attorney requested that bail be increased to $770,000, based on the bail schedule for the offense and enhancement. Ames's defense counsel said he did not think the $20,000 difference would make Ames "releasable" and asked the court to forgo increasing the bail amount. The trial court decided "to keep it at [$]750,000."
In his arguments in this court and in the trial court, the district attorney does not rely on section 1275, subdivision (c), which requires the trial court to "make a finding of unusual circumstances" and "set forth those facts on the record" before "reduc[ing] bail to below the amount established by the bail schedule approved for the county." (See also § 1270.1.) Thus, we do not consider the relevance, if any, of this statute.
At a court proceeding on August 10, 2020, Ames reiterated his not guilty plea and further entered a plea of not guilty by reason of insanity (NGI) to the complaint's murder count. In response, the trial court appointed two doctors to evaluate Ames (§ 1027).
According to an unchallenged statement made by Ames's defense counsel at a subsequent proceeding on the district attorney's motion to detain Ames without bail, the evaluation reports generated by the doctors "had already been received" by the time of Ames's preliminary hearing.
On November 19, 2020, the trial court conducted a preliminary hearing. Based on the prosecution's evidence, the trial court held Ames to answer on the murder charge and the enhancement allegation. Neither the parties nor the trial court mentioned bail on the record at the preliminary hearing. The clerk's minute order indicates that the bail remained set at $750,000.
The evidence presented at the preliminary hearing included the following: On March 21, 2020, Ames called 911 and told the dispatcher that he (Ames) is a "COVID factory" and had been "experiencing some blackout hallucinations recently." That evening, a sheriff's deputy conducted a welfare check on Ames. Ames told the deputy that he (Ames) "was manufacturing the coronavirus in his mouth." Ames also said "he had consumed an unknown drug several weeks prior at a party and he felt that that was one of the reasons he was producing the virus." Ames "refer[red] to himself as Corona Virus Number 1." Ames assured the deputy that he (Ames) was not a danger to himself or others. To the deputy, Ames "appeared coherent. He was healthy. He seemed very normal at the time." But "his behavior was abnormal." The deputy left.
After the deputy departed, Ames's friend Hubert Cross arrived at Ames's home (upon request of Ames's brother) and attempted to assist Ames. About one hour after the deputy had left, Ames stabbed Cross 23 times, killing him. Ames called the police and reported that he had stabbed his best friend to death with a knife. Ames said Cross was "a corona agent." The police detained Ames. In Ames's home, police found what appeared to be a methamphetamine pipe with DMT in it and LSD. Ames's brother told the police that he knew Ames drank "a little beer, [and] experimented with marijuana and some hallucinogens."
On January 11, 2021, the trial court arraigned Ames on an information. Ames pleaded not guilty to the murder count (§ 187; count 1) and denied the weapon-use enhancement allegation (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). No one mentioned Ames's bail on the record during the arraignment. Moreover, neither the reporter's transcript nor the clerk's minute order for the arraignment on the information includes any indication that Ames reentered his prior NGI plea.
In his reply brief, the district attorney seems to suggest that Ames is a defendant "who commit[ted] capital crimes." Although the information is not reproduced in the appellate record, we see no indication that a special circumstance-which is "necessary to permit the death penalty" (People v. Anderson (2002) 28 Cal.4th 767, 777)-has been alleged in this case.
From the time of Ames's arraignment on the complaint in March 2020 through his arraignment on the information in January 2021, bail remained set at $750,000 and neither the district attorney nor Ames made any effort to change the amount.
About eight months after his arraignment on the information, on September 8, 2021, Ames posted a $750,000 bail bond and was released from custody. The record does not contain any indication that either party made any effort to change Ames's bail between the time of his January 2021 arraignment and the posting of the bail bond.
On September 13, 2021, the district attorney filed a motion for a bail hearing (motion) pursuant to the Penal Code and In re Humphrey (2021) 11 Cal.5th 135 (Humphrey). The district attorney requested that Ames "immediately be remanded into custody due to the change in circumstances and substantially new information obtained since the initial bail hearing" in March 2020. The district attorney asserted that Ames "poses an extreme danger to the community, his friends, and family and no other reasonable bail terms will render him safe.... [Ames] has remained in custody during this entire time only to post bail with the assistance of his family on September 8, 2021. There is absolutely no question [Ames] committed this murder, the question will be where [he] spends the rest of his life; life in prison or life in the state hospital which creates a substantial risk for flight." In its moving papers, the district attorney did not cite any facts that postdated Ames's release from custody as justifying the denial of bail.
In Humphrey, the California Supreme Court addressed a claim that "[n]o person should lose the right to liberty simply because that person can't afford to post bail." (Humphrey, supra, 11 Cal.5th at p. 142.) The high court agreed and concluded "[t]he common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional.... [W]here a financial condition is nonetheless necessary, the court must consider the arrestee's ability to pay the stated amount of bail - and may not effectively detain the arrestee 'solely because' the arrestee 'lacked the resources' to post bail." (Id. at p. 143.)
On September 16, 2021, the trial court held a hearing on the district attorney's motion. The judicial officer who took Ames's August 2020 NGI plea, presided at the November 2020 preliminary hearing, and arraigned Ames on the information in January 2021 also decided the district attorney's September 2021 motion.
The district attorney contended that “a substantial amount of new evidence” had been generated “since the [c]ourt originally set bail” upon “a short probable cause statement” at the March 2020 arraignment. The district attorney explained that the new evidence included the preliminary hearing, the autopsy report, Ames's NGI plea, and the two psychiatric evaluations. The district attorney also noted that toxicology testing of Ames shows only marijuana use and that a psychiatrist had determined Ames “does not qualify for an NGI defense.” The district attorney further asserted that Ames (who was residing in Santa Clara County) is a danger to the community and said, “We cannot predict what actually caused this homicide; therefore, we cannot put terms on him that can reasonably assure public safety.” Regarding Ames's potential for flight, the district attorney argued that Ames's guilt is clear, and the only open question is whether he spends the rest of his life in a psychiatric facility or in prison. Other than this generalized argument about Ames's future custodial status, the district attorney did not proffer any facts going specifically to risk of flight.
Ames's defense counsel countered that there had not been "any change in circumstances which would make [the district attorney's] bail motion appropriate other than [Ames] ultimately availing himself of bail which he has been legally able to do for a year and a half."
The district attorney replied that either party could request a hearing under Humphrey at any time and the "change in circumstances" is that Ames "is now out of custody with zero terms, and the [c]ourt can consider all of the information that it has obtained since arraignment on this case and can review the [NGI] reports, and can consider whether or not public safety is at issue considering that he is now completely out of custody, residing in a different county, has no ankle monitor, has no ability to monitor any sort of terms, and there's no reasonable terms that would render either community safe." Ames's defense counsel responded that posting bail could not "logically" constitute a change in circumstances.
The trial court granted the district attorney's motion, deciding that Ames should be remanded into custody and held without bail based primarily on public safety concerns. The trial court explained: "I have often wondered why we tied alleged offenses like this to a dollar bail schedule. It really doesn't make a whole lot of sense. People who are of means are able to bail out, and someone who isn't then stays in jail for . . . being involved in the same sort of offense. [¶] I think in reality . . . people in the system look at the bail amount being so large and assume that bail at $750,000 is going to keep someone in custody, which for the most part, it does. So that's an artificial way of saying this is a no bail case .... [¶] The best practice, of course, is for this type of consideration to be made early on. I don't believe anyone has made that consideration. The [c]ourt hasn't considered that up to this point. [¶] So [the district attorney] is correct as far as the [c]ourt can consider this. After the preliminary hearing we had that information, that's a change of circumstances -- at least a change of information for the [c]ourt having sat and heard the evidence in the preliminary hearing I am more familiar with the allegations, and it appears quite clear from the evidence that the [c]ourt has heard that [Ames] is responsible for the acts here. There is sufficient evidence to show that, at least from what I have heard."
The court continued: "Presumption is great that [Ames] was involved in this offense and he is guilty of the offense. So those are the factors the [c]ourt has to consider. He is charged with premeditated murder. And it is evident he committed the offense. There is a substantial likelihood based on my review of the case that [Ames's] continued release would pose a danger to others, such danger of great bodily injury based on the factors of this case, the viciousness of the assault here, and no real explanation for what happened. [¶] So there's no way to contain that risk . . . other than by remanding [Ames] back into custody. There are no other conditions I can impose. Electronic monitoring doesn't protect the public. Testing and search and seizure and counseling doesn't assure the public will be safe. Electronic monitoring with a GPS or any other device isn't going to suffice. [¶] There just isn't anything I can do to minimize that, in this [c]ourt's opinion, obvious risk to the public. So I can't find any way to keep him out of custody here. And again, it's unfortunate the family went to that expense of posting the bail. It's not the best way to do it. But at this point, . . . the public safety is this [c]ourt's primary concern, and based on that I am going to remand [Ames] back into custody and set this at no bail."
B. Habeas Court Proceedings
On October 18, 2021, Ames filed a petition for writ of habeas corpus challenging his detention without bail and asking for reinstatement of bail in the amount of $750,000. The habeas court requested informal briefing on the petition. Thereafter, the habeas court issued an order to show cause.
On March 8, 2022, by written order, the habeas court granted Ames's petition, concluding that the trial court "abused its discretion by granting the [district attorney]'s motion to deny bail." The habeas court rejected the district attorney's threshold argument that Ames could not properly file his petition in the superior court and, instead, should have filed it in the Court of Appeal. The habeas court concluded that it had jurisdiction to consider Ames's petition.
The district attorney's argument included the following statement regarding "changed circumstances" supporting the trial court's decision: "Here, petitioner's case was post-preliminary hearing and [the trial court] was acting in his capacity as a superior court judge when he relied on the changed circumstances of evidence adduced at the preliminary hearing to deny bail. [Citations (including to § 1289).] This evidence was never considered by the arraignment judge when the arraignment judge-pre-preliminary hearing-set bail."
Regarding whether the trial court had abused its discretion by deciding to deny bail, the habeas court stated that "In order to increase a defendant's bail amount, a showing of 'good cause' is required" (citing § 1289) and" '[t]he good cause must be founded on changed circumstances relating to the defendant or the proceedings.'" (Quoting In re Alberto (2002) 102 Cal.App.4th 421, 430 (Alberto).) The habeas court explained that "the only actual changed circumstance since the time of the preliminary hearing was [Ames]'s posting of a $750,000 bail bond. Significantly, the [trial] court kept bail set at $750,000 following the preliminary hearing, when [that] court heard the details of the murder. To the extent that the preliminary hearing showed facts constituting 'changed circumstances,' the motion to deny bail should have been brought at that time." The habeas court also opined that Ames posting bail "was not a changed circumstance, but the exercise of his rights."
The habeas court further explained that "[t]o the extent that the Humphrey case, issued on March 25, 2021, provided a new legal basis for seeking a no-bail order, the [district attorney] should have brought such a motion earlier in the proceedings rather than waiting nearly six months, until after [Ames] posted bail.... A no-bail order that is sought and imposed only after a defendant has posted bail, without any other change of circumstances, does not meet [the procedural] standards" discussed in the Humphrey decision.
The habeas court directed the trial court to readmit Ames to "bail upon proof of reassumption of liability" and stated that the trial court "may consider whether to impose conditions of release on bail."
The district attorney timely appealed (§ 1506). In his notice of appeal the district attorney stated: "The grounds for the appeal are that the superior court erred in adding a requirement to Penal Code section 1289 that the People act promptly when requesting a no-bail detention and finding that the trial court abused its broad discretion in considering changed circumstances because of the passage of time and the fact that [Ames] had posted bail."
II. DISCUSSION
In this appeal, the district attorney contends the trial court's decision to detain Ames without bail "was not arbitrary, whimsical, or capricious" and the "habeas court thus erred when it overturned the trial court and ordered [Ames] released on bail." The district attorney further asserts that the habeas court "created a new limitation as to when a detention request may be made and what a trial court may consider when making a detention determination, all dictated by when a defendant posts bail. The habeas court did not consider public safety despite the requirement that public safety be the primary consideration in a detention determination." Additionally, the district attorney contends that "[i]t is unclear whether Penal Code section 1289 applies to a decision to detain without bail under [a]rticle I, section 12 [of the California Constitution], particularly in the first instance. However, even assuming that Penal Code section 1289 applies and informs an [a]rticle I, section 12[] detention, the trial court's detention order was still proper."
Ames responds that the California Constitution does not give the district attorney an unlimited right to seek a detention order at any time in a prosecution, section 1289 requires a change of circumstances before bail may be increased, and the district attorney waived any challenge to the applicability of section 1289. Ames contends further that the preliminary hearing evidence cannot constitute a change in circumstances under the terms of section 1289, and the detention order violated Ames's due process rights because that order was made after Ames had posted bail and without any other change in circumstances.
In reply, the district attorney asserts that Ames failed to argue in the trial court that the district attorney lacked authority to move to detain Ames under article I, section 12 of the California Constitution and section 1289 does not apply to an initial detention motion because that section "is intended to prevent judicial forum shopping and the repeated litigation of the same facts by both parties." The district attorney further asserts that even if section 1289 applies to an initial motion to detain a defendant, "any facts not previously considered by a judge are a changed circumstance." Additionally, the district attorney contends that Ames "received all the required procedural safeguards necessary to protect his right to due process" under relevant precedent.
A. Standard of Review
" 'Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations.'" (In re O'Connor (2022) 87 Cal.App.5th 90, 102.)
"When a superior court grants relief on a petition for habeas corpus without an evidentiary hearing, as happened here, the question presented on appeal is a question of law, which the appellate court reviews de novo." (In re Lazor (2009) 172 Cal.App.4th 1185, 1192; see also In re Rosenkrantz (2002) 29 Cal.4th 616, 677; In re Zepeda (2006) 141 Cal.App.4th 1493, 1497.)
"We review a superior court's decision to increase or reduce bail for an abuse of discretion. [Citation.] 'The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.'" (In re Avignone (2018) 26 Cal.App.5th 195, 204 (Avignone); see also In re White (2020) 9 Cal.5th 455, 469-470 (White).)" 'The interpretation of constitutional or statutory provisions presents a legal question, which we decide de novo.'" (Zolly v. City of Oakland (2020) 47 Cal.App.5th 73, 86.)
B. Legal Principles Regarding Bail
Our Supreme Court has "recognized that defendants charged with noncapital offenses are generally entitled to bail. [Citation.] But article I, section 12 [of the California Constitution] provides for exceptions in particular circumstances when a defendant is charged with at least one felony offense." (White, supra, 9 Cal.5th at p. 462; see also In re Christie (2001) 92 Cal.App.4th 1105, 1109 ["article I, section 12 of the California Constitution permits preventive detention"].)
Article I, section 12 provides in relevant 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." (Cal. Const. art. I, § 12.) 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."
In addition, article I, section 28, subdivision (f)(3), of the California Constitution provides in relevant part: "Public Safety Bail. A person may be released on bail by sufficient sureties, except for capital crimes .... 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."
A Court of Appeal recently concluded that "that the bail provisions of article I, section 28, subdivision (f)(3) can be reconciled with those of article I, section 12 . . . and that both sections govern bail determinations in noncapital cases. This means that section 12's general right to bail in noncapital cases remains intact, while full effect must be given to section 28[, subdivision] (f)(3)'s mandate that the rights of crime victims be respected in all bail and OR release determinations." (In re Kowalczyk (2022) 85 Cal.App.5th 667, 672, review granted Mar. 15, 2023, S277910.) Our Supreme Court has granted review in Kowalczyk. The questions pending before the high court are: "(1) 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, can these provisions be reconciled? (2) May a superior court ever set pretrial bail above an arrestee's ability to pay?" We need not address these questions to resolve this appeal.
"When making any bail determination, a superior court must undertake an individualized consideration of the relevant factors. These factors include 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." (Humphrey, supra, 11 Cal.5th at p. 152, citing Cal. Const., art. I, §§ 12, 28, subds. (b)(3), (f)(3); § 1275, subd. (a)(1).) "Along with [the] primary considerations of victim and public safety, the court must assume the truth of the criminal charges. [Citation.] These are constitutionally permissible considerations, within certain parameters." (Humphrey, at p. 153.)
Even when a bail determination complies with the prerequisites described by our Supreme Court in Humphrey, "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 . . . and with due process." (Humphrey, supra, 11 Cal.5th at p. 155.)
Under our state's statutory bail scheme, "[b]efore a criminal defendant appears in court, his or her bail 'shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail....' (§ 1269b, subd. (b).)" (People v. Lexington National Ins. Corp. (2015) 242 Cal.App.4th 1098, 1102 (Lexington).)
"If a defendant has appeared before a judge of the court on the charge contained in the complaint, indictment, or information, the bail shall be in the amount fixed by the judge at the time of the appearance." (§ 1269b, subd. (b); see also § 859a, subd. (a) [the magistrate may "fix a reasonable bail as provided by this code"]; § 1281a [a "judge of the superior court within the county, wherein a cause is pending against any person charged with a felony, may justify and approve bail in the said cause"].)
In the same vein, section 1273 provides in relevant part: "If the offense is bailable, the defendant may be admitted to bail before conviction: [¶] First--For his appearance before the magistrate, on the examination of the charge, before being held to answer. [¶] Second--To appear at the Court to which the magistrate is required to return the depositions and statement, upon the defendant being held to answer after examination. [¶] Third--After indictment, either before the bench warrant is issued for his arrest, or upon any order of the Court committing him, or enlarging the amount of bail, or upon his being surrendered by his bail to answer the indictment in the Court in which it is found, or to which it may be transferred for trial." In addition, section 1277 provides: "When the defendant has been held to answer upon an examination for a public offense, the admission to bail may be by the magistrate by whom he is so held, or by any magistrate who has power to issue the writ of habeas corpus." (See Lexington, supra, 242 Cal.App.4th at p. 1103.)
Admission to bail is defined as "the order of a competent court or magistrate that the defendant be discharged from actual custody upon bail." (§ 1268.) The acceptance of bail by the court is called the "taking of bail." (§ 1269.) Upon posting bail, the defendant is "discharged from custody as to the offense on which the bail is posted." (§ 1269b, subd. (g).)
If a defendant posts bail before the filing of an information or indictment for a felony, "the Court to which the indictment or information is presented, or in which it is pending, may order the defendant to be committed to actual custody, unless he gives bail in an increased amount, to be specified in the order." (§ 985.) In this circumstance, "[t]he court is not required to show 'good cause' for the increase." (In re Annis (2005) 127 Cal.App.4th 1190, 1195 (Annis); see also People v. Norman (1967) 252 Cal.App.2d 381, 398, disapproved of on another ground by McDermott v. Superior Court (1972) 6 Cal.3d 693, 697.)
"Section 1289 addresses the court's ability to reconsider bail after the information has been filed." (Avignone, supra, 26 Cal.App.5th at p. 204.) Section 1289 provides in relevant part: "After a defendant has been admitted to bail upon an indictment or information, the Court in which the charge is pending may, upon good cause shown, either increase or reduce the amount of bail. If the amount be increased, the Court may order the defendant to be committed to actual custody, unless he give bail in such increased amount." (Italics added.) In other words, as relevant here, section 1289 provides that once a court has set a bail on an information, the court may increase or decrease the amount of bail only upon a showing of good cause.
"The ordinary judicial discretion exists in the superior court to determine what amounts to good cause shown." (In re Berman (1930) 105 Cal.App. 270, 272.) "An order altering [the bail] amount not based on a showing of such good cause is an arbitrary exercise of judicial power, unauthorized by section 1289 of the Penal Code, and this is the provision conferring upon the superior court authority to alter the amount of bail." (Ibid.)
Regarding the scope of good cause, in Alberto, supra, 102 Cal.App.4th 421, the Court of Appeal considered whether a second judge had the authority to increase bail solely because that judge believed the first judge's bail determination at arraignment on an indictment was legally erroneous. (See id. at pp. 423-424.) In answering that question in the negative, the Alberto court acknowledged that the second judge possessed the authority to conduct a bail hearing but explained that good cause "must be founded on changed circumstances relating to the defendant or the proceedings, not on the conclusion that another judge in previously setting bail committed legal error." (Id. at p. 430; see also Annis, supra, 127 Cal.App.4th at pp. 1195-1196 [increase or decrease allowed "only upon a showing of good cause or a change in circumstances"].)
Likewise, in Avignone, the Court of Appeal vacated a superior court's increase in the defendant's bail as an abuse of discretion because, inter alia, the defendant having chosen to withdraw his guilty plea (as allowed by a prior appellate decision in the case) "is not a changed circumstance, but merely [the defendant] exercising his rights as [the Court of Appeal] specifically said he could." (Avignone, supra, 26 Cal.App.5th at p. 208.)
B. Analysis
We first address whether we should consider the district attorney's contention that section 1289 does not apply to his motion to detain Ames. As mentioned ante, the district attorney asserts in his opening brief that it is "unclear" whether "section 1289 applies to a decision to detain without bail under [a]rticle I, section 12, particularly in the first instance." The district attorney, however, does not cite any precedent or explain the alleged lack of clarity regarding the applicability of section 1289 on the facts here. In his respondent's brief, Ames asks this court to deem the district attorney's unsupported contention, which he did not raise before the habeas court, waived.
In his reply brief, the district attorney adds to his contention regarding the inapplicability of section 1289. The district attorney asserts that because the purpose of section 1289 is to "prevent judicial forum shopping and the repeated litigation of the same facts," those circumstances are "not a risk at a first motion to detain a defendant without bail." The district attorney states further that "[i]f a trial court denies a detention motion and the People want to relitigate a detention motion after the defendant has already been admitted to bail post-indictment or information, Penal Code section 1289 would require good cause founded on changed circumstances."
We agree with Ames that the district attorney has forfeited his current contention that section 1289 does not apply to his motion to detain Ames. The district attorney failed to raise this claim before either the trial court or the habeas court. The district attorney made no substantive argument in his opening brief supporting his belated contention that section 1289 should not apply in this case. Under these circumstances, we conclude that the district attorney forfeited his appellate contention regarding the inapplicability of section 1289 by failing to support it with reasoned argument and citations to authority in his opening brief. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 &fn. 10; see also People v. Banda (2018) 26 Cal.App.5th 349, 361; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592.)
Having concluded that the district attorney forfeited any argument that section 1289 is inapplicable to his motion to detain Ames, we turn to its application here. Specifically, we consider whether the record demonstrates good cause for the trial court's decision to remand Ames and order him held without bail. As discussed ante, we review this question de novo and examine the trial court's decision for abuse of discretion.
The district attorney asserts that Ames's "bail was set on March 24, 2020, at arraignment on the complaint, and never reconsidered." The district attorney further contends that after bail was set in March 2020, "there was evidence adduced at the preliminary hearing, as well as [Ames]'s insanity plea and two psychiatric evaluations. These were all changes in circumstance from that initial setting of bail."
The district attorney does not argue on appeal that Ames's posting of bail itself constitutes a circumstance relevant to the good cause showing required by section 1289.
In ruling on the district attorney's motion, the trial court relied on the evidence adduced at the preliminary hearing as "a change of circumstances" that supported increasing Ames's bail to no bail.
We are not persuaded that the circumstances identified by the district attorney or relied on by the trial court amount to good cause to increase the amount of Ames's bail from $750,000 to no bail. As an initial matter, we reject the district attorney's implicit assertion that the good cause showing properly encompasses any circumstances dating back to the initial setting of bail at Ames's arraignment on the complaint.
Under the relevant statutes described ante (pt. II.B), the trial court fixed Ames's bail for a second time (at the same $750,000 amount initially imposed) when Ames appeared before the trial court upon the filing of the information. (See § 1269b, subd. (b).) The trial court also admitted Ames to $750,000 bail on the information at the January 2021 arraignment. (See § 1268; In re Weiner (1995) 32 Cal.App.4th 441, 445.) Once the trial court did so, under the terms of section 1289, the January 2021 arraignment (not the March 2020 arraignment on the complaint) became the operative point from which any determination of good cause to increase Ames's bail must have been made.
Considering that the January 2021 arraignment is the point from which the good cause showing must be determined, the district attorney has failed to make the requisite showing because all the circumstances he has raised occurred before that date and were already in the record before the court. By the time of Ames's arraignment on the information and admission to $750,000 bail, Ames had entered his NGI plea, the doctors had provided their psychiatric evaluations, and Ames had been held to answer upon the evidence presented at the preliminary hearing to the same judicial officer who presided at the subsequent arraignment.
The district attorney does not point to any facts learned after the January 2021 arraignment to support the good cause requirement under section 1289 for increasing Ames's bail to no bail. Neither the plain language of section 1289 nor any case law cited by the district attorney supports a conclusion that a court's failure to consider facts present in the record when it admitted a defendant to bail on an information itself constitutes "good cause" justifying an increase in bail.
In the absence of any legally relevant facts that would support a finding of good cause, we conclude that the trial court abused its discretion under section 1289 by altering Ames's bail from $750,000 to no bail. We thus affirm the habeas court's order granting Ames's petition for writ of habeas corpus.
Because we conclude the trial court lacked the statutory authority to change Ames's bail to no bail, we need not reach the question whether the trial court also violated Ames's due process rights in so doing.
III. DISPOSITION
The order granting the petition for a writ of habeas corpus is affirmed.
WE CONCUR: Wilson, J. Bromberg, J.