Bright, In re, No. B069950

• Decision Date: 08 March 1993
• Docket Number: No. B069950
• Citation: 13 Cal.App.4th 1664,17 Cal.Rptr.2d 105
• Parties: In re: Wilbert Cadell BRIGHT, On Habeas Corpus. Crim.
• Court: California Court of Appeals Court of Appeals

Page 105

17 Cal.Rptr.2d 105

13 Cal.App.4th 1664

In re: Wilbert Cadell BRIGHT, On Habeas Corpus.

Crim. No. B069950.

Court of Appeal, Second District, Division 3, California.

March 8, 1993.

Rehearing Denied March 31, 1993.

Review Denied May 27, 1993.

Wilbur F. Littlefield, Public Defender, Mark Windham and Albert J. Menaster, Deputies Public Defenders, for petitioner.

Gil Garcetti, Dist. Atty., Brentford J. Ferreira and Wendy C. Forward, Deputies Dist. Attys., for respondent.

KLEIN, Presiding Justice.

Petitioner Wilbert Cadell Bright (Bright) seeks writ review of an order of the trial court denying Bright pretrial bail in a pending prosecution for murder with special circumstances, specifically, murder committed during the commission of a robbery. (Pen.Code, §§ 187, 190.2, subd. (a)(17)(i).) ¹ Although the People do not seek the death penalty, the trial court denied bail on the ground the case remained a capital case for the purpose of setting bail. ²

On October 21, 1992, this court issued an order to show cause in response to Bright's application for writ of habeas corpus challenging the trial court's denial of bail.

For the reasons set out below we conclude that regardless of whether the People The petition for writ of habeas corpus is denied.

actually seek the death penalty, bail properly may be denied whenever the accused is charged with an offense statutorily punishable by death and the "facts are evident or the presumption [of guilt is] great." (Cal. Const., art. I, § 12(a).)

FACTUAL AND PROCEDURAL BACKGROUND

On May 11, 1992, the People filed an information against Bright alleging, inter alia, he had committed murder during the commission of a robbery within the meaning of section 190.2, subdivision (a)(17)(i). The allegation of this special circumstance subjected Bright either to the death penalty or to life in prison without the possibility of parole.

On September 2, 1992, the People advised the trial court they did not intend to seek the death penalty. Bright's counsel then asked the trial court to set bail on the ground Bright no longer was charged with a capital case. The trial court denied the request. It stated: "[W]hen special circumstances are filed, in the court's mind that is a capital offense because it is an offense for which the death penalty may, but need not necessarily, be imposed."

This writ followed.

CONTENTIONS

Bright contends the decision by the People not to seek the death penalty removes the case from the category of capital crimes. Bright asserts he thus is entitled to bail pending trial. ³

DISCUSSION

1. Persons charged with capital offenses are not entitled to bail.

Capital offenses when the proof is evident or the presumption great are an exception to a defendant's absolute right to pretrial bail in California. (In re Underwood (1973) 9 Cal.3d 345, 349-350, 107 Cal.Rptr. 401, 508 P.2d 721.) This provision has been a part of the California Constitution, in one form or another, since 1849. (1849 Cal. Const., art. I, § 7; 1879 Cal. Const., art. I, § 6.) ⁴

"Originally this state had no degrees of murder and all murder was punishable by death. (Stats.1850, ch. 99, § 21, p. 231.) Thereafter murder was divided into degrees and only murder of the first degree was punishable by death. (Stats.1856, ch Historically, persons charged with murder were not entitled to pretrial bail if there was evident proof or a strong presumption the offense had been of the first degree. (People v. Tinder (1862) 19 Cal. 539, 541-542; Matter of Salvator Troia (1883) 64 Cal. 152, 153, 28 P. 231; Ex parte Curtis (1891) 92 Cal. 188, 189, 28 P. 223; In re Page (1927) 82 Cal.App. 576, 578, 255 P. 887.)

139, § 2, p. 219; Pen.Code (1872) § 190.)" People v. Ray (1967) 252 Cal.App.2d 932, 946, 61 Cal.Rptr. 1.)

This was so notwithstanding the fact that since the amendments of 1873-1874, a defendant convicted of first-degree murder might be sentenced to death or "confinement in the state prison for life, at the discretion of the court or jury...." (§ 190 (1874); Amendments to the Codes, 1873-1874, ch. 508, § 1, p. 457; In re Anderson (1968) 69 Cal.2d 613, 621-622, 73 Cal.Rptr. 21, 447 P.2d 117.) ⁵

2. Invalidity of the death penalty did not preclude denial of bail for what formerly had been capital offenses.

In People v. Anderson (1972) 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, the Supreme Court struck down the death penalty in this state as impermissibly cruel. Anderson addressed the bail status of individuals who no longer suffered exposure to the death penalty as a result of the Anderson ruling. (Id., at p. 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880.)

Anderson stated: "The issue of the right to bail in cases in which the law has heretofore provided for the death penalty has been raised for the first time by the People and amici curiae on petition for rehearing. Although this question was never an issue in this case, we deem it appropriate to note that [former] article I, section 6, of the California Constitution and [former] section 1270 of the Penal Code, dealing with the subject of bail, refer to a category of offenses for which the punishment of death could be imposed and bail should be denied under certain circumstances. The law thus determined the gravity of such offenses both for the purpose of fixing bail before trial and for imposing punishment after conviction. Those offenses, of course, remain the same but under the decision in this case punishment by death cannot constitutionally be exacted. The underlying gravity of those offenses endures and the determination of their gravity for the purpose of bail continues unaffected by this decision. Accordingly, to subserve such purpose and subject to our future consideration of this issue in an appropriate proceeding, we hold that they remain as offenses for which bail should be denied in conformity with [former] article I, section 6, of the Constitution and [former] Penal Code section 1270 when the proof of guilt is evident or the presumption thereof great." (People v. Anderson, supra, 6 Cal.3d at p. 657, fn. 45, 100 Cal.Rptr. 152, 493 P.2d 880, italics added.)

3. Enactment of the special circumstance death penalty law rendered the charge of murder without special circumstances a noncapital offense. Conversely, murder with special circumstances is a capital offense.

In 1973, the Legislature enacted death penalty legislation that included special circumstances which, if charged and found true, automatically fixed the penalty for the underlying first-degree murder at death. (Sand v. Superior Court (1983) 34 Cal.3d 567, 577, 194 Cal.Rptr. 480, 668 P.2d 787 (dis. opn. of Bird, C.J.).)

Thereafter, In re Boyle (1974) 11 Cal.3d 165, 113 Cal.Rptr. 99, 520 P.2d 723, addressed the availability of bail for an individual charged with murder but as to whom the People had not alleged special circumstances because the new death penalty legislation had not been in effect at the time of the alleged crime. Boyle stated:

"In adopting the new statute the Legislature has, inter alia, again exercised its power to implement the bail provision of our Constitution by circumscribing the class of 'capital offenses' referred to therein. It follows that only persons accused of crimes in that class may now be denied bail pursuant to [former] Penal Code section 1270." (Id., at p. 168, 113 Cal.Rptr. 99, 520 P.2d 723.) Because Boyle's crimes had been committed before the enactment of the new death penalty legislation, his offenses were not punishable with death and he accordingly was entitled to reasonable bail.

Boyle, read together with Anderson, thus clearly indicates, for the purpose of bail, any case which statutorily is punishable by death falls into the "class of 'capital offenses' " for which bail may be denied where the facts are evident or the presumption is great. (In re Boyle, supra, 11 Cal.3d at p. 168, 113 Cal.Rptr. 99, 520 P.2d 723.) Stated differently, an allegation of first-degree murder, standing alone, no longer carried the death penalty and thus had become a bailable offense. However, the charge of murder with special circumstances was punishable with death and bail for that offense could be denied.

In 1977, the Legislature restructured the death penalty law so as to require the trier of fact, after a true finding on a special circumstance, to fix the penalty at death or life imprisonment without the possibility of parole. (Stats.1977, ch. 316, §§ 4-11, p. 1256-1260.) Although the death penalty no longer was automatic upon a true finding on an alleged special circumstance, murder with special circumstances remained punishable with death and thus was, and is, a capital offense.

The instant charge of murder with special circumstances therefore is analogous to the charge of first-degree murder prior to the decision in Anderson. In both cases the accused may, but need not necessarily, suffer the death penalty. It is the statutory availability of the ultimate penalty which renders the crime charged a capital offense. Thus, regardless of whether the People in fact seek the death penalty in any given case, a defendant charged with special circumstance murder is not entitled to bail.

This proposition remained clear after Anderson and Boyle. In re Freeman (1980) 102 Cal.App.3d 838, 162 Cal.Rptr. 423, involved the same issue presented here. The People had agreed they would not seek the death penalty as to a defendant charged with special circumstance murder. Freeman rejected the accused's claim of entitlement to bail because "the absolute right to bail is conditioned on the gravity of the charge." (Id., at p. 840, 162 Cal.Rptr. 423.) Because the accused remained charged with special circumstance murder, which "embrace a capital offense," it fell within the exception to the absolute right to bail. (Ibid.)

4. The definition of "capital case" employed in Sand v. Superior Court, supra, 34 Cal.3d 567, 194 Cal.Rptr. 480, 668 P.2d 787, does not alter...