Opinion
A169406
01-31-2024
GREGORY ELARMS, Petitioner, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO; Respondent; THE PEOPLE, Real Party in Interest.
NOT TO BE PUBLISHED
(San Francisco City & County Super. Ct. No. 23008864)
SMILEY, J.
Petitioner Gregory Elarms filed a petition for writ of habeas corpus challenging a bail order that he claims does not contain the specific findings required by In re Humphrey (2021) 11 Cal.5th 135 (Humphrey). We construed the petition as one seeking a writ of mandate and requested opposition. The People concede that the magistrate erred and urge that the matter be remanded to the superior court for a new bail hearing. Accordingly, we shall grant the petition for writ of mandate.
DISCUSSION
In light of the People's concession, it is unnecessary to discuss the factual background of this matter at length. At the preliminary hearing on November 2, 2023, the magistrate held petitioner to answer on two counts of domestic violence (Pen. Code, § 273.5, subd. (a)) along with related offenses and enhancements. The magistrate set bail at $250,000.
On November 28, 2023, petitioner filed a motion pursuant to Penal Code section 1270.2 to be released on his own recognizance or on affordable bail. The superior court denied the motion on December 5, 2023, ostensibly because the time for automatic bail review under Penal Code section 1270.2 had already passed.
On December 29, 2023, petitioner filed a petition for writ of habeas corpus in this court, contending that the magistrate detained him on unaffordable bail without making required findings that no less restrictive alternative could reasonably protect public safety or ensure defendant's appearance, in violation of In re Humphrey, supra, 11 Cal.5th 135. In order to expedite relief, if it proved to be warranted, we construed the petition as one seeking a writ of mandate. (Gray v. Superior Court (2005) 125 Cal.App.4th 629, 636, fn. 3.) We requested opposition from the People and advised the parties that we might issue a peremptory writ in the first instance.
On January 23, 2024, the People filed a response to the court's order in which they concede that the magistrate's bail order does not contain the findings required by Humphrey. The People urge that the proper remedy is a remand to the superior court for a new bail hearing. The People's concession and proposal to remand for a new bail hearing are well taken. (See Yedinak v. Superior Court (2023) 92 Cal.App.5th 876, 887-888.)
We have reached our decision after notice to all parties that we might act by issuing a peremptory writ in the first instance and after considering the response from real party in interest. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.) Petitioner's right to relief is obvious and no purpose would reasonably be served by plenary consideration of this issue. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241.)
DISPOSITION
A peremptory writ of mandate shall be issued directing respondent superior court to vacate the magistrate's bail order of November 2, 2023, and to hold a new bail hearing in accordance with In re Humphrey, supra, 11 Cal.5th 135. The decision is final immediately in this court. (Cal. Rules of Court, rule 8.490(b)(2)(A).) Pursuant to the stipulation of the parties, the clerk of this court is directed to issue the remittitur immediately. (Cal. Rules of Court, rules 8.272(c)(1), 8.490(d).)
We concur: BROWN, P. J., GOLDMAN, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.