DISCUSSION
I. Review Standard
On this habeas corpus appeal, " '[o]ur standard of review is de novo with respect to questions of law and the application of the law to the facts.' " ( In re Hansen (2014)
II. Legal Principles
The California Constitution provides, with exceptions not applicable here, that "[a] person shall be released on bail by sufficient sureties...." ( Cal. Const., art. I, § 12 ;
A person charged with a bailable offense who seeks pretrial release from custody typically may either post bail, or alternatively seek the privilege of release on his or her own recognizance (OR). ( York , supra ,
An accused who bargains for OR release, on the other hand, is statutorily required to, among other things, "obey all reasonable conditions imposed by the court or magistrate." (§ 1318; York , supra ,
In contrast, the Legislature makes no mention of a court or magistrate's authority to impose conditions for a person released on the scheduled amount of bail for a felony offense. (See Gray v. Superior Court , supra ,
III. There is No Statutory Basis for the Court's Imposition of the Fourth Amendment Waiver Bail Condition
Here, as the People admit, Webb posted the scheduled amount of bail; she did not seek to decrease it, and neither the court nor any law enforcement officer suggested an increased amount was appropriate. No other scenario in which the Legislature authorized imposition of appropriate bail conditions-for misdemeanants or departures from the bail schedule-applies, and we will not insert text to the statutory scheme to accomplish a purpose that does not appear on its face. ( Doe v. City of Los Angeles (2007)
IV. The Court Did Not Possess Inherent Authority to Impose a Fourth Amendment Waiver Condition
The magistrate here nevertheless issued the Fourth Amendment waiver condition on the theory that it had inherent authority to imрose reasonable conditions under In re McSherry , supra ,
We conclude the magistrate had no such authority to deprive Webb of her Fourth Amendment right, and her right under
York informs our conclusion. In York , on a habeas writ filed by petitioners facing one or more felony drug charges, the California Supreme Court held that a trial court was not prohibited from conditioning OR release on the releasee's agreement to submit to random drug testing and warrantless searches and seizures. ( York , supra , 9 Cal.4th at pp. 1137-1138,
York 's import is that once a person has posted the required amount of bail, they have a constitutional right to be free from confinement, and maintain a reasonable expectation of privacy for purposes of Fourth Amendment protections. ( Robey v. Superior Court (2013)
Neither of the two cases relied upon by the magistrate presiding over Webb's arraignment, and the superior court on Webb's habeas petition, supports imposition of a Fourth Amendment waiver bail condition under these circumstances. In re McSherry , supra ,
In obiter dictum, the McSherry court expanded on the petitioner's unspecified arguments and their presumed consequences: "Petitioner's arguments also lead to the conclusion that even though a court can set bail conditions for an unconvicted misdemeanant, it could not do so for a person charged with a violent or serious felony because 'conditions' are not mentioned in section 1270.1. Likewise, if a defendant has been convicted of a felony, under petitioner's view, even though the right [to] bail is discretionary, the court is powerless to impose bail conditions even though the defendant's conviction may present a significant legal issue which could lead to a reversal and even though sections 1272 and 1272.1 require the judge to state on the record the reasons for or against granting bail. This cannot be what the legislature intended." ( In re McSherry , supra ,
We decline to rely upon McSherry 's dictum. But McSherry nevertheless cannot properly be read as granting courts or magistrates authority to
Nor does Gray convince us to uphold the superior court's order. The court's decision in Gray rested on McSherry's dictum, as well as a criminal law treatise citing section 1269c,
Gray ultimately held the license suspension condition was not per se unreasonable, but rather was unreasonable because it violated the physician's procedural due process rights to a noticed hearing, which he otherwise would have gotten had he appeared before the Medical Board. ( Gray v. Superior Court , supra , 125 Cal.App.4th at pp. 638-639, 643,
Gray 's holding as to a court's inherent authority to impose a license suspension bail condition, to the extent it is at all relevant to the search condition imposed here, is premised on McSherry 's unpersuasive dictum. And Gray , like McSherry , is inapposite, and does not support the court's imposition of Webb's Fourth Amendment waiver bail condition. Neither case permits a court to use its inherent "equity supervisory, and administrative powers" to exercise reasonable control over proceedings (see In re Reno (2012)
In its return, the People point to this court's statement in People v. Internat. Fidelity Insurance Company (2017)
Having concludеd the trial court possessed neither statutory nor inherent authority to impose the Fourth Amendment waiver bail condition, we
DISPOSITION
The trial court is directed to vacate the portion of its bail order imposing the warrantless search condition, and ensure that the modification of bail is communicated to all relevant law enforcement agencies forthwith. The opinion will be final as to this court 10 days after the date of filing. ( Cal. Rules of Court, rule 8.387(b)(3)(A).)
I CONCUR:
HUFFMAN, J.
BENKE, Acting P.J.
I agree with my colleagues that, on this record, the trial court erred in imposing, as a condition of bail, a requirement that Webb waive her Fourth Amendment right to be free of warrantless or unreasonable searches of her person, property, vehicle, and personal effects. However, unlike my colleagues, I agree with the courts in In re McSherry (2003)
Significantly, the inherent power recognized in McSherry and Gray has also been expressly recognized by the voters and the Legislature. In adopting
I think we must recognize the practical necessity that in particular cases, in order to assure a defendant's appearance and protect the public from harm , a trial court has the power to impose conditions which restrain the behavior or provide monitoring of a defendant while criminal proceedings are pending-even where as here, the
Although trial courts have the power to impose conditions on defendants who post cash bail, I also agree with the court in Gray , that a court's power to do so is fairly narrow. ( Gray, supra , 125 Cal.App.4th at pp. 642-643,
Here, where Webb has exercised her constitutional right to bail and where at this stage of the proceedings her guilt has
Thus, I concur in the majority's direction that on remand the Fourth Amendment waiver imposed by the trial court be stricken. I would, however, dо so without prejudice to the right of the People to present a factual basis for imposing other conditions on Webb's bail.
I CONCUR IN THE RESULT:
BENKE, Acting P.J.
Notes
Undesignated statutory references are to the Penal Code.
The magistrate recited the waiver terms as follows: "You will be the subject of a Fourth Amendment waiver, which means you must submit your person, property, vehicle, personal effects to search at any time and any place, with or without a warrant, with or without reasonable cause when required by a pretrial services officer, a probation officer, or any other law enforcement officer." Thereafter, Webb moved the court to reconsider the condition. The magistrate denied the motion. It explained its reasoning in part: "I believed then and I still believe that when you are dealing with a drug-related case, and more specifically a smuggling case, that it would suggest to the court that Ms. Webb had to get those drugs from somewhere. That means that she has connections and contacts. She herself may be involved in drug dealing. And it's-the whole idea then is to make sure that while she is out, that she can be-that she is subject to a Fourth Amendment waiver, which allows her person-everything that the Fourth Amendment waiver allows her to do to make sure that society is protected from the further drug dealing, which, obviously is harmful to society."
In denying the habeas petition, the court stated: "Here, it does not appear there was a 'verified showing' of the facts relied upon by the magistrate who imposed the Fourth Amendment waiver condition; аt least not at the arraignment or at the hearing of the reconsideration motion. Nonetheless, a preliminary hearing was held after the condition was imposed, and after the instant petition was filed (but before the [informal response] and Reply were filed). At that preliminary hearing, there was testimony that petitioner smuggled into the prison a substance stipulated to be heroin in a useable amount. This is sufficient to support the magistrate's imposition of the Fourth Amendment waiver condition." (Footnotes omitted.)
Section 12 of article I of the Constitution provides in full: "A person shall be released on bail by sufficient sureties, except for: [¶] (a) Capital crimes when the facts are evident or the presumption great; [¶] (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. [¶] 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."
See Gray v. Superior Court, supra ,
In York , the petitioners further contended that the OR release conditions infringed on their right to be presumed innocent. (York , supra ,
York also held that the conditions were not unconstitutional because the person on OR release "is not required to agree to such restrictions, but rather is subject to them only if he or she consents to their imposition, in exchange for obtaining OR release." (York , supra ,
In part, section 1272 provides: "After conviction of an offense not made punishable with death, a defendant who has made application for probation or who has appealed may be admitted to bail: [¶] ... [¶] 2. As a matter of right, before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of misdemeanors."
(See Criminal Law Procedure and Practice (Cal CEB), § 5.35 ["Magistrates have the authority to set bail on conditions that they consider appropriate. Pen. [Code,] § 1269c"].)
In finding that trial courts have no inherent power to place conditions on bail, the majority opinion requires that trial courts turn a blind eye to the risks a particular accused felon may present so long as the defendant has the wherewithal to post bail. In doing so the majority not only expressly departs from McSherry and Gray , but reaches a result that appears to place emphasis on the absence of any determination of guilt. That implication is of course at odds with the views expressed by the court in York with respect to the presumption of innocence.
In addition, while not dispositive here, I note that in providing defendants who have access to wealth with freedom from any pretrial restraint, the majority opinion reinforces the disparate treatment of wealthy and poor defendants in our bail system, a recent subject of some concern. (See Pretrial Detention Reform, Recommendations to the Chief Justice, Pretrial Detention Reform Workgroup (October 2017), p. 1: "California's current pretrial release and detention system unnecessarily compromises victim and public safety because it bases a person's liberty on financial resources rather than the likelihood of future criminal behavior and exacerbates socioeconomic disparities and racial bias.")