In re Annis

• Decision Date: 01 March 2005
• Docket Number: No. B180960.,B180960.
• Citation: 127 Cal.App.4th 1190,26 Cal.Rptr.3d 321
• Court: California Court of Appeals Court of Appeals
• Parties: In re Barry ANNIS, on Habeas Corpus.

26 Cal.Rptr.3d 321

127 Cal.App.4th 1190

In re Barry ANNIS, on Habeas Corpus.

No. B180960.

Court of Appeal, Second District, Division 2.

March 1, 2005.

As Modified March 28, 2005.

Law Office of Michael L. Thornburg, Michael L. Thornburg, Agoura Hills, for Petitioner Barry Annis.

No appearance for Respondent Superior Court.

Steve Cooley, District Attorney, Patrick D. Moran and Brent Riggs, Deputy District Attorneys, for Real Party in Interest the People.

BOREN, P.J.

INTRODUCTION

This petition for writ of habeas corpus was filed after the superior court arraigned petitioner on a felony information and revoked petitioner's release on his own recognizance (OR) in a pending felony probation violation case. We deny the petition.

PROCEDURAL AND FACTUAL BACKGROUND

Petitioner Barry Annis is the defendant in two criminal cases pending in the Los Angeles Superior Court. The first is case LA042277 (the probation case) in which petitioner was placed on three years' felony probation after conviction of willful evasion of a police officer, in violation of Vehicle Code section 2800.2, subdivision (a). This offense was alleged to have occurred on January 18, 2003. The second is case LA047357 (the new case) which is now pending trial on two counts of felony possession for sale of controlled substances in violation, respectively, of Health and Safety Code section 11351 (cocaine) and section 11378 (methamphetamine). Petitioner was also originally charged with felony possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a) (cocaine base). These three offenses were alleged to have occurred on October 27, 2004.

Petitioner was arraigned on the felony complaint in the new case on November 18, 2004. Petitioner entered pleas of not guilty and asked that the new case be set for preliminary hearing. Defense counsel urged that bail "should stand as posted" at $30,000. Counsel also stated that arresting police officers "knew about the probation violation," that petitioner had "been doing well on his probation, other than this incident," and that petitioner was "a life-long resident of Los Angeles." The prosecuting attorney presented no information or objection aside from asking that "bail ... [be set] at the presumptive level" of $85,000.

The parties had stipulated to the arraigning magistrate, Commissioner Thomas E. Grodin, as a temporary judge, and the commissioner summarily revoked petitioner's probation. The court left bail at $30,000 on the new case and scheduled it for preliminary hearing in division 122 on December 10, 2004. Without further hearing, the court released petitioner on OR in the probation case and ordered the probation violation hearing also be set for December 10, 2004, in division 122. Neither the reporter's transcript nor the court minutes indicate that the court had the probation file or an OR investigation report, that petitioner executed a written OR release agreement, or that conditions of petitioner's release on OR were set. But the minute order states, "No written release is necessary. Defendant is not in custody." Although the prosecutor stated that he "wanted to make a record," he did not otherwise do so, and no objection to the OR release was recorded.

Apparently on December 10, 2004, both matters were continued. On January 11, 2005, the preliminary hearing in the new case was conducted. The arresting officer testified that he had conducted an investigation of petitioner and searched petitioner's residence at 11110 Cohasset Avenue. As the result of the search, the officer discovered a "large amount of narcotics," specifically 100.57 grams of methamphetamine and 19.46 grams of cocaine. He also discovered a box containing pay-and-owe sheets, a measuring scale, and narcotic paraphernalia (e.g., glass cocaine pipes) in petitioner's rented residence. Petitioner admitted his ownership of the drugs to the officer.

The preliminary hearing magistrate (Judge Jessica Silvers) held petitioner to answer on the first two counts in the complaint, possession for sale of cocaine and of methamphetamine, but dismissed the third count (possession of cocaine base) on the ground of insufficiency of evidence. The case was set for arraignment on the information in department NWN on January 25, 2005. The court ordered bail "to stand" at $30,000. The minute order states "[b]ond to remain. Bond transferred to superior court." Judge Silvers also set the probation violation case for the "same date." The reporter's transcript does not indicate that the court mentioned or discussed the OR status of the probation case. A minute order for the probation violation case states "defendant remains on own recognizance."

On January 25, 2005, petitioner was arraigned in department NWN on the felony information in the new case. The trial court (Judge John Fisher) reviewed petitioner's bail and OR status. The court focused on the presumptive bail level, petitioner's criminal record, and petitioner's violation of probation. Petitioner's counsel focused on the fact that two previous judges had left bail at $30,000 and that petitioner had made his appearances.

The court ordered bail to remain as previously set in the new case, but, as to the probation violation case, the court ordered probation to remain summarily revoked and revoked petitioner's OR status. In the probation violation case, the court further ordered that petitioner's bail be "set at no bail". The court placed the case on second call and later conducted a hearing on petitioner's motion to reduce bail (i.e., to set bail in the probation case similar to the bail on the new case.) The court denied the motion and remanded petitioner into custody. Both cases have been scheduled for further proceedings on March 3, 2005, in the same department.

Petitioner thereupon filed in this court a petition for writ of habeas corpus, contending that Judge Fisher did not have the authority to revoke petitioner's OR status under the circumstances presented here.¹ Petitioner relies principally on In re Alberto (2002) 102 Cal.App.4th 421, 125 Cal. Rptr.2d 526 (Alberto). We issued an order to show cause (OSC) and, after the return, a reply, and a response were filed, held the OSC hearing on February 17, 2005.

DISCUSSION

The California Constitution, article 1, section 12, subdivision (c), provides in part: "A person may be released on his or her own recognizance in the court's discretion." The Penal Code sets forth the procedures that apply to a defendant's release on OR. (Pen.Code § 1318, et seq.)² To be released on OR a defendant must first file a signed release agreement, which includes a promise to appear and a promise to obey all reasonable conditions that the "court or magistrate" imposes with respect to the OR. (§ 1318.) By the agreement the defendant also promises not to leave California without permission and waives extradition if there is a failure to appear. (§ 1318.)

The legislative scheme also provides for an investigative staff, if approved by the board of supervisors, that would recommend to the court "whether a defendant should be released on his or her own recognizance." (§ 1318.1, subd. (a).) After investigation, the recommending report shall verify the defendant's outstanding warrants, prior failures to appear, criminal record, and the defendant's residence during the past year. (§ 1318.1, subd. (b).)

Section 1319.5 provides that when a person is arrested "for a new offense" while that person is currently on felony probation or felony parole, that defendant may not be released on OR "until a hearing is held in open court before the magistrate or judge." (§ 1319.5, subd. (a).) If an OR release is denied, "a court or magistrate" must "make[ ] a finding on the record ... that an [OR] release will compromise public safety or will not reasonably assure the appearance of the defendant as required." (§ 1270.)³

A hold may be placed on a defendant who is on probation or parole. Such a defendant is not then entitled to release on bail, even if the criminal charge triggering the hold is a bailable offense. (In re Law (1973) 10 Cal.3d 21, 26, 109 Cal.Rptr. 573, 513 P.2d 621.)

When a defendant on bail appears for arraignment on an information or indictment, the court may order an increase in the amount of bail. If the defendant is unable to post the increased amount, the court may commit the defendant into custody. (§ 985.) The court is not required to show "good cause" for the increase. (People v. Norman (1967) 252 Cal.App.2d 381, 398, 60 Cal.Rptr. 609.) However, once 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. (§ 1289; Alberto, supra, 102 Cal. App.4th at p. 430, 125 Cal.Rptr.2d 526; In re Berman (1930) 105 Cal.App. 270, 271-273, 287 P. 373.)

In Alberto, supra, 102 Cal.App.4th 421, 125 Cal.Rptr.2d 526, one superior court judge had modified bail by increasing it from $35,000 to $1,035,000 on the belief that the judge who had set bail at the time of the arraignment on the information had failed to comply with the statute. The Court of Appeal noted that a court generally has the inherent power to correct its mistakes. However, the court stated, "Different policy considerations ... are operative if the reconsideration is accomplished by a different judge. Accordingly, the general rule is just the opposite: the power of one judge to vacate an order made by another judge is limited. (Greene v. State Farm Fire & Casualty Co. (1990) 224 Cal.App.3d 1583, 1588, 274 Cal.Rptr. 736 (Greene).) This principle is founded on the inherent difference between a judge and a court and is designed to ensure the orderly administration of justice. `If the rule were otherwise, it would be only a matter of days until we would have a rule of man rather than a rule of law. To affirm the action taken in this case...