The California Constitution provides that a defendant "shall be released on bail by sufficient sureties" unless an exception applies. ( Cal. Const., art. I, § 12.) One such exception covers "[f]elony 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 on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others." (Id. , art. I, § 12, subd. (b).) The trial court here recognized that it is "unusual" to deny bail for a noncapital offense, but it nonetheless found that the exception applied.
White challenges the court's finding by petition for writ of habeas corpus. (§ 1490.) He asserts that the court erred by finding that the constitutional exception applied. For reasons we will explain, we disagree and deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California.
J.D. had a bad feeling about the men, so she went through a gate into her neighbor's yard, hopped over the fence, and went into her garage. She later said she was trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from the garage, went out front, and left the surfboard in her driveway. The men were still staring at her, which made her feel uncomfortable.
J.D. went inside, but she became concerned that someone would try to steal her surfboard. She grabbed some surfboard wax, went back outside, and started to wax the surfboard. The men were still standing by their truck. J.D. noticed a few people walk by, and a surfer came up from the beach and asked to borrow some wax. This request was normal, so J.D. agreed.
J.D. continued to wax her surfboard in the driveway. At some point, when she had her back to the road, one of the men from the truck came up behind her and grabbed her neck "like a pressure lock." The man-later identified as White's roommate Jeremiah Owens-shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward the truck. J.D. repeatedly told him "no" and "stop."
J.D. managed to fight Owens off and step away from him. She saw the other man-later identified as White-still standing by the truck, looking up and down the street. She told Owens and White, "That's not cool. You can't do that." White said, "We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D. was watching them, White looked at Owens and said, "Go in the house." J.D. thought Owens would try and attack her again.
J.D. went through the gate, locked it "as fast as [she] could," and ran into the house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and locked both doors into the house. She thought Owens and White were going to follow her inside. She thought they might break the lock on the gate or hop over the fence. She was going to hide, but she heard the truck's engine start. She looked outside and saw White in the driver's seat. Owens ran around to the passenger side. J.D. thought they looked scared, and they drove quickly away. She started hyperventilating and crying. She tried and eventually succeeded in calling her parents, who told her to call the police. She called 911, and police responded.
The San Diego County District Attorney charged White and Owens with the offenses identified above. White was arraigned, pleaded not guilty, and was detained without bail. In advance of his preliminary hearing, White filed a written request for bail. It alleged that he had no criminal history and was not a violent person. It was supported by a number of letters from family and friends.
At the preliminary hearing, the court heard testimony from J.D. and several investigating officers. After the testimony, the prosecution asked the court to find probable cause and bind White and Owens over for trial. The prosecution believed that Owens was the direct perpetrator and White was an aider and abettor of the attack on J.D. The court agreed. It found J.D. to be a credible witness. As to White, it found persuasive the following facts and inferences from J.D.'s testimony: (1) White and Owens loitered in front of J.D.'s house without any legitimate purpose, (2) they stared at J.D. in an abnormal manner, (3) White told Owens he should go into the house with J.D., (4) White waited for Owens to come back from attacking J.D. and drove away with him, and (5) White behaved like a lookout during the attack.
The court then heard White's request for bail. White's counsel argued that White was a high school graduate, was gainfully employed as a cable installer, and had the support of family and friends. He requested that bail be set at $50,000. Owens requested bail as well. The prosecution opposed. As to White, it argued, "I will submit to the Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as to whether you would like to set bail, given the fact that he is not as culpable perhaps as Mr. Owens in being the direct perpetrator."
White challenged the court's remand order by petition for writ of habeas corpus in this court. He requested that we direct the trial court to vacate the order and set
DISCUSSION
I
As noted, the California Constitution provides that a defendant "shall be released on bail by sufficient sureties" unless an exception applies. ( Cal. Const., art. I, § 12.) The Constitution initially contained a single exception, for "capital offenses when the proof is evident or the presumption great." (Former Cal. Const., art. I, § 6 ; In re Application of Weinberg (1918)
One of the added exceptions, which is at issue here, covers "[f]elony 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 on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm
II
Although its phrasing is archaic, the requirement that "the facts are evident or the presumption great" has long been held to mean simply that the evidence in the record would be sufficient to sustain a conviction. ( Nordin, supra ,
White points out that mere presence at the scene of a crime, or failure to intervene, is insufficient in and of itself to constitute aiding and abetting. (See People v. Pettie (2017)
While a reasonable jury could alternatively find that Owens acted independently, as White claims, the constitutional standard requires us to consider whether the evidence would be sufficient to sustain a conviction, presuming the existence of every fact a jury could reasonably deduce from the evidence and resolving any conflicts in the evidence in favor of upholding the order. (See Zaragoza, supra ,
III
The second requirement, that the court find by "clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others[,]" has not been defined in prior
Historically, with the exception of capital cases, bail was available to a defendant without regard to his threat to public safety. ( In re Underwood (1973)
Statutory enactments confirm this focus on public safety. Section 1275 provides, in relevant part, "In setting, reducing, or denying bail, a judge or magistrate shall take into consideration the protection of the public, the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his or her appearing at trial or at a hearing of the case. The public safety shall be the primary consideration." (§ 1275, subd. (a)(1).)
These statutory factors must be considered with an eye toward the ultimate determination set forth in the California Constitution: whether there is "clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others." ( Cal. Const., art. I, § 12, subd. (b).) The seriousness of a charged offense involving interstate financial
Most relevant to the constitutional determination is evidence of violence or infliction of bodily harm in the defendant's criminal record or in connection with the charged offenses. Completed acts, attempts, and threats are all relevant to the court's inquiry. A court should be particularly attuned to facts that indicate whether past instances of violence or bodily harm were isolated events or would be expected to recur if the defendant were released on bail.
In order to deny bail, the trial court must find a "substantial likelihood" that the defendant's release would result in great bodily harm to others. ( Cal. Const., art. I, § 12, subd. (b).) This standard requires more than a mere possibility, and it cannot be based on speculation about the general risk to public safety if a defendant is released. Great bodily harm to others must be a substantial likelihood. While the term "cannot ... be reduced to a rigid formula susceptible to mechanical application" ( Nordin, supra ,
Importantly, the trial court must make its finding of substantial likelihood by clear and convincing evidence. ( Cal. Const., art. I, § 12, subd. (b).) " ' "Clear and convincing" evidence requires a finding of high probability.' [Citation.] The evidence must be ' "so clear as to leave no substantial doubt"; "sufficiently strong to command the unhesitating assent of every reasonable mind." ' " ( Nordin, supra ,
Although the parties do not directly address it, an important threshold question in this proceeding is the proper standard for our review. As the foregoing discussion shows, the court's finding on this element is essentially factual. The court must weigh the evidence, make credibility
As discussed above, our review for substantial evidence is limited in scope. We must view the record in the light most favorable to the court's order, presume the existence of every fact the court could reasonably have deduced from the evidence, and resolve any conflicts in the evidence in favor of upholding the order. ( Zaragoza, supra ,
While the trial court must be satisfied that the evidence supporting its finding is clear and convincing, we do not make the same determination. "That standard was adopted ... for the edification and guidance of the trial court, and was not intended as a standard for appellate review. 'The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial
Based on the record, the trial court could reasonably have inferred that Owens did not act alone, that White and Owens considered and planned the attack on J.D. over an extended period of time, that White acted as Owens's lookout and encouraged him to continue the attack after J.D. initially fought him off, and that White facilitated Owens's flight from the scene by driving him quickly away. The trial court could have found persuasive J.D.'s interpretation of White's statement, "[g]et in the house," as directed to Owens and encouraging him to continue the attack out of public view. Based on the circumstances of the attack, the court could reasonably infer that Owens and White were highly dangerous. Their attack was deliberate, it occurred during the day on a heavily trafficked street, and it targeted a vulnerable stranger. They worked in concert to increase the odds of the attack's success. And although the attack was not completed, the trial court could reasonably infer that Owens intended to rape J.D., a devastatingly harmful injury, and White knew it.
Although such an attack can never be fully explained, the facts show no reason why J.D. in specific was targeted. The criminal intent that led to the attack could apply to any stranger. The trial court could therefore reasonably infer that White would likely attack again, either alone or in concert with another, if released on bail.
Viewed as a whole, and even given our deferential standard of review, this record tests the bounds of what would sustain an order remanding a defendant without bail under the California Constitution. But, after thorough consideration, we conclude the evidence is sufficient to support the remand order here. The trial court could reasonably find that White acted so brazenly, so inexplicably, and so without regard for the laws and norms of society that there would be a substantial likelihood that his release would result in great bodily harm to others.
The trial court here found a substantial likelihood of great bodily harm to J.D. specifically and to other children in general. Because the record supports the trial court's finding that White's release would result in great bodily harm to others, we need not consider whether the evidence supported a finding of great bodily harm to J.D. specifically.
White claims that his role was "limited" and the crime was "spontaneous." But the trial court could have reasonably found the opposite, as we discuss
DISPOSITION
The petition is denied.
WE CONCUR:
NARES, J.
IRION, J.
Notes
Further statutory references are to the Penal Code unless otherwise specified.
The phrase "felony sexual assault offenses on another person" was not part of the original exception. It was added later. (See Assem. Const. Amend. No. 37, Stats. 1994 (1993-1994 Reg. Session) res. ch. 95, approved Nov. 8, 1994.) The other added exception covers "[f]elony 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, subd. (c).)
The phrase "the facts are evident or the presumption great" has the same meaning for the trial court, so its assessment of this requirement is governed by the same substantial evidence standard. Because sufficiency of the evidence is a legal question, we do not defer the trial court's determination. We review the record independently to determine whether the evidence would be sufficient to sustain a conviction. This situation is analogous in substance to a trial court's consideration of a motion for acquittal under section 1118.1 and our review thereof. (See People v. Houston (2012)
Similar factors have appeared in the California Constitution since 1982. (Former Cal. Const., art. I, § 28, subd. (f)(3), added by initiative, Primary Elec. (June 8, 1982).) Our Supreme Court previously held that they did not go into effect when initially approved because a competing initiative, which added the exception to the right to bail at issue here, garnered more votes at the same election. (People v. Standish, supra ,
At oral argument, White contended that our interpretation of the constitutional standard should be informed by the presumption of innocence. But that presumption is a doctrine to be applied at trial; it has no application to the rights of a pretrial detainee. (Bell v. Wolfish (1979)
We disagree with Nordin, supra ,
We note, however, that there was no evidence J.D. was specifically targeted or that she remained specifically under threat. Instead, the record shows that the risk of great bodily harm caused by White's release is to strangers, rather than a specific person known to White.
Relying on United States v. Salerno (1987)