Opinion
H048152
08-10-2020
In re KALVIN UNG, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1807777)
Kalvin Ung petitions for a writ of mandate, habeas corpus, or alternative relief from the trial court's order denying him release on bail. Ung is in pretrial custody facing 76 counts of grand theft, petty theft, attempted grand theft, unauthorized access to computers, and identify theft. He had twice previously been released on bail but the trial court revoked his bail status and remanded him into custody after finding he violated the terms of his release.
For the reasons below, we are compelled to conclude Ung has a right to bail under the California Constitution and the amended bail schedule adopted by the superior court on June 23, 2020 in response to the COVID-19 pandemic. We will direct the trial court to vacate its order denying bail and hold a hearing in order to exercise its discretion in setting bail consistent with the amended bail schedule.
I. FACTUAL AND PROCEDURAL BACKGROUND
The prosecution alleges Ung is part of a network of computer hackers engaged in theft through "SIM swapping." Many online accounts allow an account holder to reset the account password by sending a code to the account holder's phone. In a SIM swap, the hacker tricks or persuades the victim's phone carrier into switching the victim's phone number to a SIM card in the hacker's phone. The hacker then attempts to log into the victim's online account and prompts the account manager to send a password reset code to the highjacked phone number. Upon receiving the code, the hacker resets the password and gains access to the victim's account.
The prosecution avers Ung engaged in dozens of such SIM swaps, whereupon he accessed the cryptocurrency accounts of multiple victims and transferred cryptocurrency (e.g., Bitcoin) worth nearly $2 million to himself. The current information charges Ung with 76 counts of grand theft, petty theft, attempted grand theft, unauthorized access to computers, and identify theft. (Pen. Code, §§ 487, subd. (a), 488, 502, subd. (c)(1)(A), 530.5, subd. (a).) The information further alleges an aggravated white collar enhancement for the taking of more than $500,000, and the information alleges three of the offenses were committed while bail was revoked. (Pen. Code, §§ 186.11, subd. (a)(1), 12022.1.)
Police executed a Ramey arrest warrant in September 2018 and immediately took Ung into custody. Ung was released on $250,000 bail within hours. The prosecution filed a complaint in December 2018 along with a second arrest warrant. Ung was taken into custody again, and bail was set at $2,000,000.
People v. Ramey (1976) 16 Cal.3d 263.
Ung moved for a reduction in bail shortly after he was taken into custody. After multiple hearings on the matter, the trial court reduced bail to $1,006,500 and imposed various supervised release conditions, including GPS monitoring and a prohibition on accessing electronic communication devices. In February 2019, Ung posted bond and was released on these conditions, among others.
The prosecution filed a second amended complaint in May 2019, and after a preliminary hearing, Ung was held to answer.
In July 2019, the Office of Pretrial Services filed a "Request to Admonish" on the grounds that Ung had allowed his GPS monitoring device to shut down on 10 separate occasions, rendering the device unable to transmit location data for a total of about 90 hours between May and July 2019. Ung was remanded into custody on July 24, 2019.
In September 2019, the trial court held a continued hearing at which the prosecution presented additional evidence that Ung had violated the terms of his supervised release. Among other things, the evidence supported findings that Ung had accessed electronic devices and made further attempts to engage in SIM swapping while he was on supervised release. Based on this evidence, the trial court found "[t]here are no orders that the Court can make that will assure the public is not at risk" and ordered Ung held without bail. While in custody, Ung was charged with possession of methamphetamine.
In April 2020, in response to the health crisis resulting from the COVID-19 pandemic, the Judicial Council of California adopted Emergency Rule 4 establishing a statewide emergency bail schedule. The rule set bail for offenses and violations of postconviction supervision at $0 with exceptions in certain cases. Ung requested a bail hearing and argued the trial court was required to set bail at $0 under the emergency order. The trial court denied bail and Ung remained in custody.
On May 22, 2020, Ung filed a petition in this court seeking a writ of mandate, habeas corpus, or alternative relief. On June 18, after requesting and receiving informal briefing, we issued an order to show cause why Ung is not entitled to relief.
After we issued the order, the Judicial Council repealed Emergency Rule 4 while encouraging superior courts to adopt similar rules as necessary. On June 23, 2020, the Santa Clara County Superior Court issued an amended order adopting a bail schedule with terms similar to those set forth in Emergency Rule 4. We requested the parties address the relevance of the superior court's order at oral argument in this matter.
We take judicial notice of the superior court's order. (Evid. Code, § 452, subd. (e).)
II. DISCUSSION
Ung asserts the trial court erred by denying him release on bail because he has a right to bail under article I, section 12 (hereinafter "Section 12") of the California Constitution. The District Attorney contends revocation of supervised release without bail was justified because Ung violated the terms of his release in multiple ways, demonstrating he presents a threat to the public. The District Attorney relies on the reference to public safety set forth in subdivision (f)(3) of article I, section 28 (hereinafter "Section 28(f)(3)") of the California Constitution.
A. Legal Principles
" 'Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations.' " (In re Humphrey (2018) 19 Cal.App.5th 1006 (Humphrey), quoting In re McSherry (2003) 112 Cal.App.4th 856, 859-860.)
The California Supreme Court has granted review in Humphrey as we discuss infra. (In re Humphrey (2018) 417 P.3d 769.)
"In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception." (U.S. v. Salerno (1987) 481 U.S. 739.) Under California law, "defendants charged with noncapital offenses are generally entitled to bail." (In re White (2020) 9 Cal.5th 455, 462 (White).) Historically, the California Constitution has conferred "an absolute right to bail except in a narrow class of cases." (In re Law (1973) 10 Cal.3d 21, 25.) The California Constitution delineates certain exceptions under which a defendant may be denied bail.
Under Section 12, defendants in noncapital cases "shall be released on bail by sufficient sureties" except for "(b) Felony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court 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; or [¶] (c) Felony offenses when the facts are evident or the presumption great and the court finds based on clear and convincing evidence 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 28(f)(3) provides, in part, "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." (Cal. Const., art. I, § 28.) The latter two sentences of this section are also set forth in Penal Code section 1275, subdivision (a)(1).
The California Supreme Court has not fixed a standard of review for the denial of bail under Section 28(f)(3). Under subdivision (b) of Section 12, however, we review the trial court's finding on the first element—whether the defendant committed offenses involving acts of violence on another person, or felony sexual assault offenses on another person—"by assessing whether the record, viewed in the light most favorable to the prosecution, contains enough evidence of reasonable, credible, and solid value to sustain a guilty verdict on one or more of the qualifying crimes." (White, supra, 9 Cal.5th at p. 463.) As to the second element, "we consider whether any reasonable trier of fact could find, by clear and convincing evidence, a substantial likelihood that the person's release would lead to great bodily harm to others." (Id. at p. 465.) "[W]e review a trial court's ultimate decision to deny bail for abuse of discretion. [Citations.] Under this standard, a trial court's factual findings are reviewed for substantial evidence, and its conclusions of law are reviewed de novo. [Citation.] An abuse of discretion occurs when the trial court, for example, is unaware of its discretion, fails to consider a relevant factor that deserves significant weight, gives significant weight to an irrelevant or impermissible factor, or makes a decision so arbitrary or irrational that no reasonable person could agree with it. [Citation.]" (Id. at pp. 469-470.)
B. Denial of Bail was Improper
The parties disagree on whether Section 12 or Section 28(f)(3) governs the outcome in this case. The District Attorney does not contend that Section 12 provided any grounds for the denial of bail here. Ung is not charged with committing any acts of violence or sexual assault, and he has not threatened any person with great bodily harm. Ung argues that he therefore had a constitutional right to bail under Section 12. The District Attorney, however, contends the trial court properly denied bail based on public safety as set forth in Section 28(f)(3).
The parties are not alone in their disagreement concerning the import of the two sections. The appropriate application of these constitutional sections to set bail is not settled in our state. The California Supreme Court granted review in Humphrey to consider the meaning of the two sections for purposes of setting bail in non-capital cases, posing the following questions: "Under what circumstances does the California Constitution permit bail to be denied in noncapital cases? Included is the question of what 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 may be reconciled." (In re Humphrey (2018) 417 P.3d 769.) As Humphrey has not yet been decided, we draw on established principles of constitutional interpretation to reconcile the provisions.
The parties set their arguments in the context of the electoral history underlying the competing sections. Ung contends the relevant language in Section 28(f)(3) is inoperative because it was originally enacted by a provision in Proposition 8 in 1982 that the California Supreme Court later held outvoted by a competing proposition. (People v. Standish (2006) 38 Cal.4th 858, 875 ["T]he relevant provision of Proposition 8 never became effective, because a competing initiative measure on the same ballot (Proposition 4) garnered more votes than Proposition 8."]; In re York (1995) 9 Cal.4th 1133, 1140, fn. 4.) The District Attorney asserts that the voters reinstated the relevant language through Proposition 9 in 2008.
But we need not decide whether the entirety of Section 28(f)(3) is operable to resolve this matter. As the District Attorney acknowledges, "one constitutional provision 'should not be construed to effect the implied repeal of another constitutional provision.' [Citation.] Accordingly, if the two provisions can be construed to apply concurrently, we must do so. [Citation.]" (City and County of San Francisco v. County of San Mateo (1995) 10 Cal.4th 554, 567.) This rule is particularly pertinent given that the California Supreme Court recently opined at length on the standard of review applicable to a trial court's findings under Section 12 in White, supra, 9 Cal.5th 455, thereby implicitly affirming its significance.
The District Attorney's proposed construction of Section 28(f)(3)—under which bail may be denied irrespective of the mandatory conditions set forth in Section 12—would essentially render Section 12 meaningless. Section 12 expressly states that defendants "shall be released on bail" except under certain conditions—conduct involving violence, sexual assaults, or threats of violence—that are nonexistent in this case. If Section 28(f)(3) could be so broadly interpreted as authorizing the denial of bail under the circumstances presented here, this construction would swallow Section 12 whole. Based on a plain reading of the language of both sections taken together, Section 28(f)(3) simply specifies additional factors that a court must consider in denying or setting bail for a defendant who falls within the exceptions set forth in Section 12.
Furthermore, even assuming Section 28(f)(3) allows a court to deny bail in cases that do not fall within the scope of Section 12's exceptions, it requires that the trial court give primary consideration to "[p]ublic safety and the safety of the victim." There is no evidence that Ung's release would threaten the victims in this case. As for the phrase "public safety," we do not construe it to include the threat of economic offenses such as those at issue here. Reading the relevant sections in context, we conclude the phrase "public safety" in Section 28(f)(3) must be construed in harmony with Section 12 to include offenses that inflict or pose a threat of physical injury such as those that involve acts of violence, sexual assaults, and threats of great bodily harm.
Based on the evidence of Ung's conduct violating the terms of his release, the trial court found he presented "a threat to the community" and that "[t]here are no orders that the Court can make that will assure that the public is not at risk." But there was no evidence that Ung had committed any acts of violence or sexual assault, nor that he threatened to commit great bodily harm. Accordingly, there is no substantial evidence to support a finding that he falls within the exceptions set forth in Section 12. The District Attorney conceded this point at oral argument.
Based on the plain language of Section 12 and our fidelity to constitutional principles, we are compelled to conclude the trial court erred in denying Ung bail. We acknowledge the evidence demonstrates Ung engaged in flagrant violations of his release conditions, but the exceptions set forth in Section 12 do not set forth grounds for a total denial of bail. Furthermore, we do not believe trial courts are powerless to act under these circumstances, as set forth below.
Ung's petition alleges he was entitled to be released on $0 bail under the Judicial Council's Emergency Rule 4. The District Attorney accurately points out that Emergency Rule 4 has since been repealed. On June 23, 2020, however, the Santa Clara County Superior Court issued an amended bail schedule including much of the same language in Emergency Rule 4. The superior court's order provides, "Bail for all misdemeanor and felony offenses must be set at $0" with the exception of certain offenses not at issue here. The order further provides, "The court retains discretion to deny bail as authorized by article I, section 12, or 28(f)(3) of the California Constitution, to set a higher bail for any offense, including those with a bail of $0, and/or to order conditions of release deemed appropriate for any offense. Setting of bail is at the discretion of the judicial officer reviewing the case with due consideration of public safety and health concerns."
The plain language of the superior court's June 23, 2020 emergency order would only allow the trial court to deny bail in accordance with the constitutional provisions discussed above. However, the plain language of the emergency order does not require the trial court to set bail for Ung at $0 as it provides the trial court discretion to set "a higher bail for any offense, including those with a bail of $0...." We leave to the trial court the determination of what bail is appropriate here, noting that it must set bail under the emergency order "with due consideration of public safety and health concerns," which, given the order's adoption in the current public health crisis, would necessarily include a consideration of the impacts of COVID-19. We further recognize the trial court's authority to consider a wide range of potential conditions on Ung's release—including the confiscation of his passport, and perhaps the use of Ung's own financial resources—to ensure his appearance at future proceedings and prevent him from inflicting economic harm on the public.
Accordingly, compelled by the constitutional mandate of Section 12, we will order the trial court to vacate its prior order and hold a hearing to consider setting bail consistent with this opinion and the criteria set forth in the Santa Clara County Superior Court's bail order of June 23, 2020.
III. DISPOSITION
The Superior Court is directed to vacate its April 30, 2020 order denying bail and hold a hearing to consider entering a new and different order setting bail consistent with the June 23, 2020 amended bail order. To prevent further delays in the Superior Court proceedings, this decision shall be final as to this court five court days after its filing. (Cal. Rules of Court, rule 8.387(b)(3)(A).)
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.