Opinion
G062892
10-05-2023
OHAGE NEWTON, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; THE PEOPLE OF THE STATE OF CALIFORNIA, Real Party in Interest.
Orange County Alternate Defender, Frank Davis, Deputy Alternate Defenders Peter Boldin and Marketa Sims for petitioner. Todd Spitzer, District Attorney and Austin Deuel, Deputy District Attorney for Real Party in Interest.
NOT TO BE PUBLISHED
Original proceedings; petition for a writ of mandate to challenge an order of the Superior Court of Orange County, Nos. 23NF1120, 22WF1758 Jonathan S. Fish, Judge. Petition granted.
Orange County Alternate Defender, Frank Davis, Deputy Alternate Defenders Peter Boldin and Marketa Sims for petitioner.
Todd Spitzer, District Attorney and Austin Deuel, Deputy District Attorney for Real Party in Interest.
OPINION
* * *
THE COURT:[*]
Petitioner Ohage Newton filed a petition for writ of mandate challenging respondent court's ruling setting bail at no bail even though he is entitled to bail under section 12, article I of the California Constitution. We agree and the petition is granted.
Facts
While on probation in Orange County Superior Court case No. 22WF1758, petitioner, Ohage Newton, was arraigned in custody on a new felony complaint in case No. 23NF1120. The new complaint charged petitioner with four counts of first degree residential burglary, attempted first degree burglary, possession of ammunition by a prohibited person, and importing a large-capacity magazine into the state. Bail in the probation case was set at $5,000, and bail in the new felony case was set at $1 million. According to the minute order, the court conducted a bail review hearing on May 22, 2023, in case No. 23NF1120. Although a defendant is not required to demonstrate a change in circumstances under the automatic bail review statute in Penal Code section 1270.2, the court denied petitioner's motion to reduce bail when it found "there [was] no change in circumstance" and bail remained set at $1 million. Bail in the probation case remained set at $5,000.
All further citations are to the Penal Code.
Petitioner did not seek review of the amount of bail or the basis of the court's ruling in the new case, and on May 25, 2023, petitioner was held to answer after a preliminary hearing and bail remained set at $1 million. On the same day, bail in the probation case remained set at $5,000. On June 7, 2023, petitioner was arraigned on the information and again, bail remained set at $1 million, and bail remained set at $5,000 in the probation case.
On July 7, 2023, respondent court considered petitioner's "Oral motion by Defense to set bail at $50,000" in the new case, case No. 23NF1120. At the conclusion of the hearing respondent court "order[d] bail reset at NO BAIL" and said:
"I've reviewed the declaration by [the officer] filed May 9 - or executed on May 9 of 2023. I've reviewed his CII. I also reviewed a petition for PV on 22WF1758. And the Court is making the following findings. [¶] Under Humphrey, the first question is is there a risk of the defendant's lack of return to court. There are failures to follow directives by the Court in that per the petition, he gave misinformation about his residence to the probation department. He was associating with people who he was not supposed to associate with; carrying a weapon, which he was not supposed to have; had ammunition in his home, which he was not supposed to have; and had methamphetamine in his home, which he was not supposed to have. [¶] There was a 148 in the background. I'm not considering that. [¶] There also are no failures to appear. [¶] So I'm concerned about him following the Court's order to return given that, and his maximum possible punishment [12 years]. [¶] Number two, is there a danger to the public? [Petitioner] is accused of four residential burglaries. I did review - I did go through the charges, read the declaration. Burglaries are inherently dangerous. These appear to be targeted and sophisticated. So yes, the answer is there is a danger to society or to our public. [¶] The next question under Humphrey is will affordable bail curtail that, will non-economic conditions curtail that, or will a combination of both curtail that? This Court finds it hard to believe that under full probation supervision, they were unable to control continued alleged criminal behavior. [¶] And therefore, I find by clear and convincing evidence that neither bail - affordable bail, non-economic condition, or a combination can reasonably prevent a danger to society or - it's my concern that he will not return to court. Both matters, bail is denied. It will be set at no bail." (Emphasis added.)
Although neither the minute order nor the reporter's transcript of the bail hearing indicate that petitioner sought a reduction in bail in the probation case, bail was nonetheless "reset at NO BAIL" in case No. 22WF1758.
Petitioner filed a petition for writ of mandate in this court claiming that respondent court erred by (1) remanding petitioner into custody without bail in a non-capital case or a felony case involving acts of violence on another person, (2) the prosecution's proffer of evidence was not sufficient to establish the "facts are evident and the presumption great" that the allegations in the information are true, or clear and convincing evidence there is a "substantial likelihood that petitioner's release would result in great bodily harm to others," and (3) even if petitioner wasn't entitled to bail under section 12(b) of the California Constitution, respondent court "failed to articulate the basis for its finding, [as required by In re Humphrey (2021) 11 Cal. 5th 135 (Humphrey)] by clear and convincing evidence, [and] that no less restrictive condition than detention could reasonably protect the interests in public or victim safety and the petitioner's appearance in court."
Citing Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, real party, the Orange County District Attorney's Office, was ordered to file informal opposition to the petition. According to real party, petitioner is not entitled to relief because he failed to establish the trial court abused its discretion when it set bail at nobail. Real party also contends that because of the conflicting provisions in section 12 and section 28 of article I of the California Constitution, respondent court is entitled to exercise its discretion to choose whether to apply section 12 or section 28 at the bail hearing, and because respondent court's order complied with section 28 of article I, and section 1203.25, petitioner fails to establish an abuse of discretion. Real party concludes by stating, "The trial court's actions were lawful, supported by evidence, and comfortably within the trial court's discretion."
Discussion
"[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." (In re White (2020) 9 Cal.5th 455, 469-470.)
We find that petitioner is entitled to bail in case No. 23NF1120 for two reasons.
A defendant charged with a capital offense "cannot be admitted to bail, when the proof his or her guilt is evident or the presumption thereof great." (Pen. Code, § 1270.5.) "If the charge is for any other offense, he may be admitted to bail before conviction, as a matter of right." (Pen. Code, § 1271; In re Christie (2001) 92 Cal.App.4th 1105, 1109.) (Emphasis added.)
Despite statutory authority that bail is a matter of right in noncapital cases, Article I, section 12 of the California Constitution authorizes pretrial detention for certain enumerated offenses and states in relevant part that, "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, 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.) (Emphasis added.) Section 12 states further that, "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." (Cal. Const. art. I, § 12.)
To deny bail under article I, section 12, petitioner must be charged with a qualifying offense. (In re White, supra, 9 Cal. at p. 471.) "In reviewing a denial of bail, an appellate court must determine . . . whether the record contains substantial evidence of a qualifying offense ...." (Id., at 471.)
In this case, neither first degree residential burglary, attempted first degree residential burglary, possession of ammunition by a prohibited person, and importing a large-capacity magazine are capital crimes. (§§ 461(a), 664, 30305(a)(2), 32310(a).) The offenses charged are also not "[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person." Nor were there facts presented at the bail hearing or findings made by respondent court "based on clear and convincing evidence" that petitioner is charged with felony offenses where there is evidence that petitioner "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.) When the record does not contain substantial evidence of a qualifying offense, the defendant "shall be released on bail." (Ibid.)
According to real party, respondent court's order denying bail complied with section 28 of article I, and section 1203.25, and therefore petitioner failed to establish the trial court abused its discretion when it set bail at no-bail.
Subdivision (f)(3) of section 28, article I, of the California Constitution 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.)
According to real party, because of the conflicting provisions in section 12 of article I, which states, "A person shall be released on bail . . ." and section 28 of article I, which states, "A person may be released on bail . . ." respondent court is entitled to exercise its discretion whether to apply section 12 or section 28 because according to the Supreme Court's order granting review in In re Kowalczyk (2022) 85 Cal.App. 5th 667, which reconciled the conflict in sections 12 and 28, respondent court may "'exercise its discretion under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 456 . . . to choose between sides of any such conflict.'"
Giving real party the benefit of the doubt in this case that respondent court exercised its discretion between the conflicting bail sections, respondent court's analysis and the ruling in this case makes clear that respondent court exercised its discretion and considered bail under section 12 of article I when the court made findings under the "clear and convincing" standard articulated in section 12, language that is nowhere to be found in the text of section 28, when respondent court said, "I find by clear and convincing evidence that neither bail - affordable bail, non-economic condition, or a combination can reasonably prevent a danger to society or - it's my concern that he will not return to court."
As such, any conclusion that petitioner is charged with a qualifying offense that allows respondent court to deny bail under section 12, article I is unsupported and must be reversed.
But even if respondent court had considered petitioner's motion to reduce bail under section 28, petitioner would still be entitled to relief because at the hearing, petitioner and respondent court failed to take into account the procedural posture of the case. Unlike Humphrey where the Supreme Court considered bail under the automatic bail review statute in section 1270.2, the procedural posture of this case is postpreliminary hearing.
Section 1277 states that, "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," which in this case occurred when the magistrate set bail at $1 million after the preliminary hearing on May 25, 2023.
Thereafter, "[b]ail may be increased when a defendant is arraigned on an information or indictment. (Pen. Code, § 985; People v. Lexington National Ins. Corp. (2015) 242 Cal.App.4th 1098, 1103.) In this case, petitioner was arraigned on the information on June 7, 2023, and bail remained set at $1 million.
However, once a defendant has been held to answer and arraigned on the information, section 1289 addresses the court's ability to reconsider bail and states, "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[s] bail in such increased amount."
"[O]nce a defendant has been admitted to bail on the indictment or information, the court may increase or decrease the amount of bail only upon a showing of good cause or a change in circumstances." (In re Annis (2005) 127 Cal.App.4th 1190, 1195-1196; § 1289; In re Alberto (2002) 102 Cal.App.4th 421 (Alberto).) As Alberto explained, "[T]he good cause must be founded on changed circumstances relating to the defendant or the proceedings." (Id. at p. 430.)
During the hearing on the motion on July 7th, counsel asked the court to lower petitioner's bail to $50,000 and explained there was nothing special or out of the ordinary about the four completed burglaries alleged, the value of items taken in the four completed burglaries was in the neighborhood of $12,000, not the "high-valued" jewelry suggested from the preliminary hearing, the attempted burglary was abandoned when petitioner and his codefendant noticed that someone was home, there were no threats to the victims or witnesses, no indication that a weapon had been used, the earlier cases were not filed right away, suggesting that if there had been any real danger, the cases would have been filed right away, and although petitioner was on probation for possession of a firearm from his February 2023 guilty plea, "there's [no] reason for this court to deviate from the bail schedule of $50,000, and that's what I would be asking for as that's an amount he can afford."
After hearing counsel's argument, respondent court would have been justified denying petitioner's motion because petitioner failed to demonstrate changed circumstances by identifying facts that occurred after petitioner's arraignment in June to support the good cause requirement in section 1289. The facts recited by petitioner as the basis for the motion to reduce bail were already known when petitioner was arraigned on the information on June 7th and failed to establish a change in circumstances to justify a reduction in bail.
Likewise, respondent court also failed to identify any facts that occurred after petitioner's arraignment in June to support the good cause requirement in section 1289 to justify the increase of petitioner's bail to no-bail. At the hearing, respondent court summarized the current felony case, referred to the probation violation case, cited to Humphrey, considered non-economic conditions, and made findings by "clear and convincing" evidence that petitioner posed a risk if released to justify resetting bail at nobail. However, these were all facts about the defendant and the proceedings that were already known when petitioner was arraigned on the information on June 7th, and respondent court identified no new facts about the defendant or the proceedings after petitioner's arraignment on June 7th to support the good cause requirement in section 1289 to justify an increase of petitioner's bail from $1 million to no-bail.
"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." (In re Berman (1930) 105 Cal.App. 270, 272.) In the absence of facts to support a finding of good cause, respondent court's order increasing bail from $1 million to no-bail in case No. 23NF1120 represents an abuse of the court's discretion.
Petitioner is also entitled to relief in the probation case. Unlike the current felony charged in Superior Court case No. 23NF1120, the record does not disclose that petitioner made a written or oral motion to reduce bail in the probation case. Nor did real party seek an increase in bail when respondent court, unprompted, increased bail from $5,000 to no-bail. Procedural due process requires that a party be given notice when government action threatens deprivation of liberty or property, (Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 569-571; Southern California Gas Co. v. Public Utilities Com. (2023) 87 Cal.App. 5th 324, 340) and according to the record, there is no indication or even suggestion in the record that petitioner received notice that respondent court intended to consider an increase in bail until respondent court made its ruling in the current felony case and said, "Both matters, bail is denied. It will be set at no bail."
In addition to a lack of notice, as of 2022, subdivision (e) of section 1203.25 states, "The court shall not deny release for a person on probation for felony conduct before the court holds a formal probation revocation hearing unless the court finds by clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public and reasonable assurance of the person's future appearance in court." (Emphasis added.) Subdivision (f) states, "All findings required to be made by clear and convincing evidence under this section shall, based on all evidence presented, including, but not limited to, any probation report, be made orally on the record by the court." (Emphasis added.)
With respect to the requirement that the court find by "clear and convincing evidence that there are no means reasonably available to provide reasonable protection of the public," respondent court said, "This Court finds it hard to believe that under full probation supervision, they were unable to control continued alleged criminal behavior. [¶] And therefore, I find by clear and convincing evidence that neither bail - affordable bail, non-economic condition, or a combination can reasonably prevent a danger to society ...."
Assuming respondent court made these findings related to the probation case and not the current felony case, the record fails to support a finding by "clear and convincing evidence that there are no means reasonably available to provide reasonable protection to the public."
The" 'clear and convincing evidence' test requires a finding of high probability, based on evidence '" 'so clear as to leave no substantial doubt' [and] 'sufficiently strong to command the unhesitating assent of every reasonable mind.'" '" (Conservatorship of Wendland (2001) 26 Cal.4th 519, 552.)
According to the findings "made orally on the record by the court," it appears the only means considered by the court to protect the public was "full probation supervision," with no indication in the record that the court identified, considered, or rejected any other possible method, such as GPS monitoring, or any other electronic or tracking services to satisfy the clear and convincing standard that there is no substantial doubt that there "are no [other] means reasonably available to provide reasonable protection to the public."
The record also fails to support the second requirement in subdivision (e) of section 1203.25, which required respondent court to find by court clear and convincing evidence that there are no means available to provide reasonable assurance of the defendant's future appearance in court.
As Humphrey makes clear, there is always some risk that a defendant may not appear in court. (In re Humphrey, supra, 11 Cal. 5th at p. 154.) In this case, respondent court said, "Under Humphrey, the first question is is there a risk of the defendant's lack of return to court. There are failures to follow directives by the Court in that per the [probation] petition, he gave misinformation about his residence to the probation department. He was associating with people who he was not supposed to associate with; carrying a weapon, which he was not supposed to have; had ammunition in his home, which he was not supposed to have; and had methamphetamine in his home, which he was not supposed to have. [¶] [¶] So I'm concerned about him following the Court's order to return given that, and his maximum punishment," which counsel represented was 12 years.
However, the fact that petitioner may have failed while on probation as summarized by the court in this case, is not necessarily germane to the inquiry of assuring future court appearances because the statute assumes the existence of a pending probation violation and still states, "[t]he court shall not deny release" pending a formal probation revocation hearing. (§ 1203.25, subd. (e).) The only circumstance identified by the court that specifically reflects on petitioner's future court appearances was the court's acknowledgement that "there were no failures to appear," and the docket in case No. 22WF1758 indicates the $20,000 bond posted was sufficient to ensure petitioner's appearance before the bond was exonerated at the plea and sentencing hearing on February 8, 2023. This fails to support a finding by clear and convincing evidence that there are "no means reasonably available to provide reasonable assurance that petitioner will appear in court."
Disposition
The petition for writ of mandate is granted. Respondent court is ordered to vacate the order entered on July 7, 2023, resetting bail at no-bail in case No. 23NF1120, and to enter an order resetting bail at $1 million. Respondent court is further ordered to vacate the order entered on July 7, 2023, resetting bail at no-bail in case No. 22WF1758, and to enter an order resetting bail at $5,000 in case No. 22WF1758.
Petitioner's rap sheet attached to the petition as exhibit 6 is a confidential record. (Pen. Code, § 11105.) Accordingly, the clerk of this court is directed to remove pages 85 through 95 of the petition and maintain the confidential record in a secure location separate from the public record.
In the interest of justice, the opinion in this matter is deemed final in this court and the clerk of this court is directed to issue the remittitur forthwith.
[*] Before O'Leary, P. J., Moore, J., and Goethals, J.