*1 Apr. In No. 16504. Bank. 1973.] [Crim.
In ALBERT B. UNDERWOOD III on Habeas Corpus.
Counsel Defender, Miller, L. Richard Plotin S. Public Richard Buckley, Philip Meister, Defenders, for Petitioner. M. Public Albert Deputy Wood, L. Busch, Daniel Lieberman P. District Attorney, Harry Joseph District Attorneys, Respondent. Donald J. Kaplan, Deputy Opinion an
WRIGHT, C. an order to show cause response J. We issued respondent on allegations a writ habeas corpus application Code of Penal violation error court committed denying petitioner 6, Constitútion. We conclude and article section 1271 err in oppor- court did indeed disallowing petitioner the respondent a reasonable bail. tunity-to post stu- a senior on June
At 4:15 a.m. petitioner, approximately Barbara, Tarzana was seen in at the California Santa University dent in Los Angeles arrested he ran a residence. He was subsequently from live two shotguns homemade sawed-off of two while in possession shells, Police and was booked at Los shotgun Angeles Department’s $500 22, 1972, released June Station. On petitioner West Valley 23, 1972, June of June early morning During evening *3 in a was Station Valley placed postal a addressed to West package it revealed that box in An of the Tarzana. examination deposit package a “live” defused. contained bomb which was pipe subsequently warrant not here a was challenged On cause allegations probable Police offi- issued for the search of and automobile. apartment petitioner’s cers, warrant, in discovered numer- executing searches authorized by used ous articles which were to or identifiable with components similar in the alteration of the bomb. shotguns and construction pipe Thereafter of Penal Code sections charged with violations petitioner (see 12020 of a sawed-off 664 murder (possession shotgun), (attempted 187)), 12308 device to a destructive with intent to com- (attempt explode murder), mit 12303.3 a device with intent destructive (attempt explode device). injure and 12303 of a destructive people property) (possession At the time arraignment on the petitioner’s charges relating bomb be a motion to released on bail was denied. Petitioner later pipe stated, renewed the motion and the court in again rejecting application: “Due to fact that a there is dearth of matter is in the it legal opinion to make a usually judge decision. If the doesn’t make up judge decision never have If I we new law. am reversed I been reversed before be I believe will But I again. and. am not afraid to make a decision Iif in that believe one. believe as Justice stated where the Douglas community it be would judicial jeopardized irresponsible action to . . . The time has must come where we restrain violence death much If as it resolve it by possible. necessary bail to those denying who can or are able to murders and vio- perpetrate lence nature, and crimes of that then the court at this will not be time reluctant and bail is denied. Let the District Court of Appeal make their ruling.”1 in People, denial in the instant circum- arguing propriety
stances, are confronted Code Penal section which provides: “If the is for charge offense, [than capital] defendant] [the apparently trial court relied (1962) on Carbo v. United States 7 L.Ed.2d 662], In Douglas, circuit, 769 S.Ct. sitting [82 case Justice discussed the pending appeal. to bail recognized It is well that in such circumstances . substantially bail different from pending trial Further, conviction, to bail before as a matter of right.”2 admitted
article of the Constitution states “All pertinent part: unless for when the offenses is evident or the Excessive bail shall not be great. presumption ,”3 . . required, commands these constitutional some Notwithstanding statutory ap courts have “read the bail pellate safety” excep into” “public (Bean County Angeles (1967) tion. Los Cal.App.2d [60 804]; also, Municipal see Evans v. Court Cal.Rptr. Cal.App.2d In re Gentry (1962) 206 [24 208]; In Henley (1912) P. Cal.App. Typical of such construction is the “A in Bean: defend judicial language following ant a criminal action is entitled to be released a matter of on bail as *4 for a offense when the is capital evident or the except proof pre (Cal. I, great Const., art. or the sumption where for of protection individual or society proper it would be for (252 757; at italics added.) Cal.App.2d [Citations.]” p.
The of the law reading enunciated in Bean and similar cases mis conceives the of our bail are to the purpose system they disapproved extent that hold that there they is a The “public safety” exception. purpose of bail is to assure the attendance in court his defendant’s when presence whether before required, (People Bonding or after conviction. v. United Ins. Co. (1971) Cal.3d 1385]; In re 489 P.2d [98 (1961) Newbern 55 Cal.2d 360 P.2d see also [11 In re Brumback (1956) Cal.2d 810 P.2d Bail is a means [299 for (Sawyer defendants Barbour punishing (1956) v. 187]) nor for
[300 Such protecting public safety. objectives provided otherwise. 2Section 1271 conjunction must be read in with section states: 1270. Section 1270 charged “A defendant an punishable with offense with death cannot be admitted to proof guilt when the presumption great. of his is evident or the thereof The finding indictment strength does not add proof presump or the tions charge be drawn therefrom.” qualifies Section 1271 providing: section 1270 “If offense, any conviction, he be admitted to as a bail before right.” matter of 3The full text of persons article is: “All shall be bailable capital great. unless for offenses when presumption is evident or the Excessive unusual shall not be required, imposed; nor excessive fines shall nor cruel punishments detained, unreasonably be inflicted. Witnesses shall not be nor confined in room actually imprisoned.” where criminals are do not consider We presented and no issue is in the instant case as to excessive bail. what constitutes Code, (See Pen. Constitution, unlike our
The
Amendment to the United States
Eighth
not be re
Constitution,
bail shall
state
guarantees only
“[e]xcessive
nor excessive fines
nor cruel and unusual
quired,
punishments
imposed,
law,
inflicted.”
Court in Carlson
common
Relying
Supreme
(1952)
Landon
held that
Our constitutional that all language providing expressly for a added to offense was except consciously “no excessive bail” Amendment language from the adopted Eighth 4The court specifically Eighth interpretation rested its Amendment on the law, stating: common English slight changes “The bail clause was lifted from Rights Bill England thought Act. In that clause has never to accord been cases, to bail in all merely provide but those that bail shall not be excessive in cases where it is proper our this was carried over into bail. When clause Rights, nothing Eighth Bill of said concept. indicated different prevented Congress Amendment has not defining classes cases in which from bail shall be country. allowed in compulsory this cases bail is not Thus in criminal Indeed, punishment where the very language the Amendment be death. say fails to p. (342 pp. arrests at must bailable.” 545-546 L.Ed. U.S. *5 recognition 5In of the court’s interpretation Eighth Amendment, of Congress has enacted an elaborate plan preventive detention presently being which is implemented in the District of Columbia. The District of Columbia Court Reform and Criminal (Pub. Procedure Act of 1970), 1970 of (July L. No. 91-358 84 Stat. specific categories defines subject detention, defendants who pretrial are where release adequately conditions will not protect safety. Severe criticism has preventive been leveled at the concept. detention major preventive obstacles of a system detention are the ability lack of to predict a detained person’s (see Portman, future conduct To Detain or Not to Detain?—A Review of Background, Proposals, Current and Debate on Preventive Detention 224, 250), Santa Clara Law. and- the realization that the detention is treated as a (see factual Crime guilt determination of a detainee’s Hickey, Preventive Detention and the Being Dangerous (1969) 287, 297). 58 Geo.L.J. Preventive detention has by also been studied Project American Bar Association on Minimum Standards for Criminal provision pretrial Justice. A model detention seriously was finally rejected. considered but suggested The provision persons that all release, accused of crime be entitled to except prosecution those in cases in which the alleges high degree that there is a flight of risk of or future crimes of violence. As persons to such jurisdiction prosecution required apply general to a court of detention prove by convincing order and to clear and evidence assigned need for detention. The reasons adopt for the not decision a model preventive provision detention were the lack of information as the true need preventive the uncertainty detention and predictive techniques necessary operate system substantial, accuracy, with tolerable as well as unresolved constitutional problems. Project Justice, A.B.A. on Min. Standards for Crim. Standards Relating Draft, 1968) (Approved Pretrial p. Release rule, one class that, the federal except clear unlike
order to make As statutory provisions defendants to be bailable.6 were pertinent by as guaranteed to bail not be read to limits on greater impose that there Constitution, there is in the validity argument .the no California in or other statutory provisions safety” is an “public exception implied not does to bail and hold that such exception guaranteeing we section 6. “If the constitu I, in view the clear direction of article exist them—not change judges tional let the guaranties wrong, are people 215, 220 (In Keddy (1951) legislators.” 159].)7 that the
We to the conclusion compelled persons danger detention our criminal ous others within to themselves or contemplated authorization detain such and if it becomes system, persons, necessary to or future elsewhere, therefor must be found either existing case at instant had been invoked in the law.8 No such provision provision accepted 6After the of 1849 had California Constitutional Convention I, bail, section 7 prohibiting what was then article excessive there introduced I, (the section present article text of which is first sentence of the same as the cases) following explanation guaranteeing of been capital with the to bail in all but bail: “It has providing for expressly proposing the reasons for the modification entire just adopted covers the thought by have some that the section which we law, and common ground; as we have not my part opinion but in it does not. This section not, very law, think it perhaps ánd adopted the common cases, introduced, except capital so in all necessary a section should be that such may be man bail. An innocent be entitled to party offenses . . . the kept accused shall (Report the 28, this." provision such prison and refused without Const., Sept. of the State Formation in the of Cal. on the Debates Convention Constitution without into the 1879 was reenacted p. This section debate. provision, people provided accused or the heinousness of his the one unless for set aside observed that the [11] or 7In Keddy: legislators." If the constitutional personal views exception, addressing are entitled to bail as a matter of in article by such “The by (In provision inherited people *6 civil, a problem people, wit, offenses. of an individual Keddy where a legislative guaranties of the State of California who processes . binding similar to that . (1951) that ‘all are .’ person £10 or are offense, sovereign, legally without judicial This mandate of officer as to the wisdom of supra, wrong, has been without presented right. Irrespective of the erased let qualification branch have seen the. charged regard the constitutional through people of the in the instant case it is stated fit upon change people their Constitution government. 215, 219-220.) public opinion, provide a them—not the constitutional cannot be courts until villainy mandate. that with but offense, It will be legally judges or for . . . recognized by both statute is well process of civil commitment of individuals may years younger be age or example, a of the person and case law. For adjudged of an order until execution juvenile a ward court and detained of the Code, (Welf. & Inst. been of his case. disposition or other has made commitment becoming addicted 737.) danger of person § A is addicted or is in imminent who was denied.9 the motion for release time of California clear that the Constitution In of the it is view foregoing because of dangerous pro- the denial of bail solely petitioner’s prohibits However, may not of record preclude peti- other circumstances pensities. on the his discharge we cannot now order release at this time and tioner’s fixed court. of reasonable bail by to be posting that, remains in custody issue while
Let the writ petitioner ordering him and his charges against applica- a determination of the upon pending fixed, therefor, a bail be he be afforded a at which reasonable hearing tion if he is then not and he be released of such bail upon posting other lawful restraints. subject J., J., Roth, J.,*
McComb, Sullivan, J., and con Tobriner, J., Mosk, curred.
BURKE,
(art.
6)
J.
of our
§
I dissent. The words
Constitution
that,
there exists a
although
reasonably susceptible
interpretation
may
be
narcotics
detained
(Welf.
Code,
for treatment and rehabilitation.
& Inst.
3100.) Further,
if,
§
inebriation,
as a result
person
danger
a
ais
to himself or
gravely disabled,
may
others or is
be
he
protective custody”
taken into “civil
and
placed in an evalution
facility
and
period. (Welf.
treatment
for a 72-hour
& Inst.
Code,
5170;
Municipal
§
see also Evans
(1962)
Court
general right non-capital bail, conditions or to reasonable upon the inherent impose power risk thereof, a substantial case wherein defendant the grant poses instant case a striking example of harm to others or to himself. The presents bail of the of the necessity foregoing interpretation propriety of our state Constitution. provisions shotguns arrested for two sawed-off
Defendant was originally possessing to bail and and live shells. He exercised his constitutional right shotgun thereafter, according $500. released on bail of Immediately set who had arrested defendant about to kill the officers People, police a live containing booked him to those officers a by mailing package bomb severe or death. Defendant causing capable injury pres- pipe offenses, Must he with various murder. ently charged including attempted be released on bail once more? I not. believe
First I hold that defendant of his dangerous- would (regardless present ness), a crime while the freedom secured serious by committing enjoying bail, forfeited least with bail, further at thereby respect (or crimes) to the crime so Constitution committed. the California Certainly was not intended to render the courts to' control and punish powerless misuse or abuse of rule would seemingly their own process. Any witnesses, defendant, or a bent obstructing harassing on permit justice, for, mischief or make and re- causing mayhem, repeated applications ceive, acts, bail successive unlawful criminal until his ultimate following In the such as defendant hands of purpose finally accomplished. herein, sword, crime, right to would itself become an instrument of Therefore,
and not a I am that our courts shield. persuaded properly refuse bail fulfill to one who has demonstrated his unwillingness condition, that he remain necessarily within implicit on behavior trial. Rendel v. Mummert Ariz. good pending Bail Am.Jur.2d, and Recognizance, § §
But even had defendant he alleged not been bail when committed the issue, offenses believe the California would Constitution permit courts to exercise some of discretion refuse bail to one whose degree conduct threatens substantial harm to others to himself.1 The majority majority suggest (Welf. provisions that the Act of- the Lanterman-Petris-Short Code, seq.) might society & 5000 et adequate protection Inst. afford Yet, from dangerous might person require such as act defendant. simply showing dangerousness, physical than namely, more some mental or deficiency, abnormality. seemingly inapplicable disorder or The act cold-blooded, criminal, professional yet precisely it is such an individual who poses greatest threat of harm. *8 Amendment law, under the Eighth and at common that both explain cases Constitution, bail in certain noncapital denial of the United States Landon, L.Ed. U.S. 524 v. Carlson and is permissible. constitu by governed jurisdictions S.Ct. Accordingly, Amendment, of the Eighth the language tional incorporating provisions welfare for the the necessity denial of bail be upon provide premised Melville, 62 Misc.2d People v. (See, and of the community. e.g., safety the Consti 671, 677-680]; Mitchell, Bail and N.Y.S.2d Reform Detention, 1223.) tutionality Pretrial 55 Va.L.Rev. Amendment, bail shall that excessive Eighth
Unlike the language that contains a not be Constitution also provision California required, of- unless for “All persons I, (Art. . . .” great. fenses when the is evident or the presumption Yet, that is to the reasonably provision interpretation susceptible are entitled considered bail without regard to be type arson, etc., of offense committed (e.g., mayhem, exception rape, noted). words, In other the California have been intended provision might that the courts will not bail whenever a insuring routinely deny particular of offenses class without defendant’s charged, regard particular Under suitability such an the courts would retain interpretation, degree discretion bail when necessary promote and welfare.2 safety
Moreover, even if we assume that a constitutional to bail arguendo exists, isit framers of our state Constitution also noteworthy recog- nized the “inalienable of all men to and their life and right” enjoy defend their liberty, and obtain protect property, pursue happi- Const., (Cal. ness. art. The concerning constitutional provisions bail have no greater than the one referred to— standing priority just the two must be read so together. necessary doing implication that the courts must the inherent a suitable balance retain achieve power defense, between and defendant’s society’s right safety, protection own to bail.
Thus, courts in sub- constitutional having jurisdictions those California, identical to those held that in stantially spite majority during contrary constitutional refer to certain statements made adopted debates of but we those who are concerned with the intentions of Constitution, Moreover, acknowledged predecessor. apart its from the (People shortcomings key construction upon of reliance debates as a to constitutional McCreery, 432), denying propriety 34 Cal. the 1849 debates do not relate to the protection society. bail for the *9 absolute,
provisions,
to bail is not
the courts
discretion
possess
bail,
bail,
to refuse
or to attach
of
in an
grant
conditions to-the
appropriate
Mummert,
(See,
824,
supra,
827-830;
case.
Rendel v.
e.g.,
474 P.2d
State
v. Johnson
I the foregoing properly would adopt but of the defendant also the not the constitutional rights account only which if not of rights society, given constitutional equal, preferred, course, rule, Of under accused under our Constitution. that no man status bail basis be denied on the of some solely of a offense could noncapital harm. “Denial of bail because doing insubstantial future possibility if let at large defendant in community dangerous potential be rare cases. those should in In cases the only extraordinary imposed evidence must be clear and must be convincing, peril apparent.” Melville, (People supra, 308 N.Y.S.2d of bail to [denial bombing trial court, defendant accused of in dwelling].) occupied exists, risk must find that a substantial of harm that no denying alternative (such reasonable conditions imposing protective exists, bail) and that there is a substantial likelihood that defendant in fact committed the of which he offense stands accused. denial of Finally, bail is be not unreviewable but wholly may challenged appellate Therefore, as an would courts abuse discretion. I conclude improper that exist to safeguards of bail in cases. ample guarantee proper
The often heard solution that the necessary protection be accorded fix an amount bail which the by having judge defendant particular would be unable to furnish the issue evades merely and does what it is indirectly be done Further- argued directly. more, so would doing violate against excessive prohibition States,
Justice bail on Douglas, Carbo v. United denying appeal “If, 662, 666], example, remarked S.Ct. L.Ed.2d 774 irresponsible be it would would jeopardized, community believe omitted, added.) strongly judicial (Fn. bail.” italics action to grant for similarly affords a firm basis denying our Constitution instant case.