In re Carrillo
| Decision Date | 10 September 2013 |
| Docket Number | B247837 |
| Citation | 161 Cal.Rptr.3d 859 |
| Court | California Court of Appeals Court of Appeals |
| Parties | IN RE Jerome CARRILLO on Habeas Corpus. |
Angela Berry; Law Office of Alex R. Kessel, Universal City, Alex R. Kessel, Encino, and Ivy Kessel for Petitioner.
Jackie Lacey, District Attorney, Roberta Schwartz and Patrick D. Moran, Deputy District Attorneys, for Real Party in Interest.
No appearance by Respondent.
Defendant was charged with assault with a deadly weapon with further allegations that he personally used a firearm and acted to benefit a street gang in the commission of the offense. The trial court released defendant on $90,000 bail. Shortly before a pretrial conference, at an in camera ex parte hearing at which defendant was not present, the trial court raised defendant's bail to $1 million. In this habeas corpus proceeding, defendant challenges his detention on this increased bond as in violation of Penal Code1 sections 1270.1 and 1289 and his Sixth Amendment and due process rights, and seeks vacation of the court's order increasing his bail and reinstatement of the previously ordered bail. We conclude that the trial court erred in failing to address the reliability of the confidential information; further, the trial court failed to provide defendant with the gist of the prosecution's requested increase in bail, and failed to consider some manner in which defendant could participate in the hearing while at the same time preserving the government's need to proceed in camera. We therefore grant defendant's petition.
On May 22, 2012, a felony complaint was filed against defendant, a member of a gang, and several other codefendants charging them with assault with a deadly weapon. (§ 245, subd. (a)(2).) The complaint also alleged defendant personally used a firearm and committed the offense to further the interests of a street gang. (§§ 186.22, subd.(b), 12022.5, subd. (a).) Defendant was released on $90,000 bail, and appeared at a pretrial hearing represented by counsel on March 7, 2012. On that date, a further pretrial conference was set for March 21, 2013.
On March 14, 2013, the prosecution moved ex parte for an in camera hearing to increase the amount of bail, and submitted a declaration under seal in support. The court conducted an ex parte in camera hearing in which it received confidential information. Our review of the transcript of the hearing indicates the trial court made no effort to ascertain the reliability of the information. After the hearing, the court ordered defendant's bail forfeited, reset bail at $1 million, and issued a bench warrant for defendant's arrest. On that same day, defendant was arrested and remains incarcerated. On March 20, 2013, defendant requested an open hearing on his bail increase, but the court denied the request.
On April 8, 2012, defendant filed a petition for writ of habeas corpus asserting that his detention on an increased bond violated sections 1270.1 and 1289 as well as his Sixth and Fourteenth Amendment rights, and seeks to have his bail reinstated at $90,000. He argues due process and the Sixth Amendment require an open hearing, and refutes that the language of section 1289 permits ex parte in camera bail hearings. Lastly, deducing that confidential information was used at the hearing, he contends he is entitled to discover the material relied on by the prosecution in raising his bail. The People counter that no notice to defendant was required by the literal language of sections 1270.1 and 1289.
Well-settled principles govern the court's ability to set, increase, or reduce bail. ( In re Weiner (1995) 32 Cal.App.4th 441, 444, 38 Cal.Rptr.2d 172.) The trial court's statement of reasons shall "contain more than mere findings of ultimate fact or a recitation of the relevant criteria for release on bail; the statement should clearly articulate the basis for the court's utilization of such criteria." ( In re Pipinos (1982) 33 Cal.3d 189, 193, 187 Cal.Rptr. 730, 654 P.2d 1257.)
Section 1270.1 requires notice and a hearing for the setting of bail. Section 1270.1, subdivision (a), provides that for serious and violent felonies, a person may be released on a scheduled bail amount after a hearing before an magistrate or judge in an "open court." ( § 1270.1, subd. (a).) Under section 1289, bail may be reduced or increased, but it may be increased only by a showing of good cause. ( § 1289 ; In re Annis (2005) 127 Cal.App.4th 1190, 1195–1196, 26 Cal.Rptr.3d 321.) Section 1289 makes no provision for a hearing, but if the defendant applies for a reduction in bail, the statute expressly provides notice must be given to the prosecution, yet no such corollary provision for notice to the defendant exists for an increase in bail.2 We review the court's decision to increase or reduce bail for an abuse of discretion. ( In re Christie (2001) 92 Cal.App.4th 1105, 1107, 112 Cal.Rptr.2d 495.)
The purpose of the Sixth Amendment is to guarantee a fair trial. ( Faretta v. California (1975) 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562.) To that end, the Sixth Amendment provides that "the accused shall enjoy the right to a speedy and public trial." ( U.S. Const., 6th Amend.) The right to a public trial ( In re Oliver (1948) 333 U.S. 257, 270, 68 S.Ct. 499, 92 L.Ed. 682.)
"Although the Sixth Amendment refers to a ‘public trial,’ the right encompasses more than the trial itself," and " ‘is not limited to issues that arise after a jury is sworn or times when the jury is present.’ " ( U.S. v. Waters (9th Cir.2010) 627 F.3d 345, 360.) The public trial right attaches to those hearings whose subject matter "involve[s] the values that the right to a public trial serves." ( U.S. v. Ivester (9th Cir.2003) 316 F.3d 955, 960.) Namely, the right ensures a fair trial, reminds the prosecutor and judge of their responsibility to the accused and the importance of their functions, encourages witnesses to come forward, and discourages perjury. ( U.S. v. Waters, supra, 627 F.3d at p. 360.) Thus, it ( Ibid. ) The public trial right has been applied to suppression hearings of wrongfully seized evidence ( Waller v. Georgia (1984) 467 U.S. 39, 46–47, [104 S.Ct. 2210, 81 L.Ed.2d 31] ) ( Waller ), jury selection ( Presley v. Georgia (2010) 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 ), and in limine motions ( Rovinsky v. McKaskle (5th Cir.1984) 722 F.2d 197, 201 ). Bail hearings "fit comfortably within the sphere of adversarial proceedings closely related to trial." ( United States v. Abuhamra (2d Cir.2004) 389 F.3d 309, 323 ( Abuhamra ).) Indeed, ( Id. at pp. 323–324.)
In Waller, supra, 467 U.S. 39, 104 S.Ct. 2210, the high court discussed procedural safeguards that must be observed before the courtroom could be closed over the objections of the defendant in the context of a suppression hearing. Waller noted that the right to a public trial is not absolute and must sometimes give way to other interests essential to the fair administration of justice. ( Id. at p. 45, 104 S.Ct. 2210.) " ‘The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ " ( Ibid. ) Thus, to justify complete closure of a trial or portion thereof, four criteria must be met: (1) there must be "an overriding interest that is likely to be prejudiced"; (2) the closure must be narrowly tailored, i.e., "no broader than necessary to protect that interest"; (3) "the trial court must consider reasonable alternatives to closing the proceeding"; and (4) the trial court "must make findings adequate to support the closure" and allow a reviewing court to determine whether the closure was proper. ( Id. at p. 48, 104 S.Ct. 2210.)
Due process similarly requires transparency. " ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ " ( Fuentes v. Shevin (1972) 407 U.S. 67, 80, 92 S.Ct. 1983, 32 L.Ed.2d 556.) "Although ... due process tolerates variances in the form of a hearing ‘appropriate to the nature of the case,’ [citation], and ‘depending upon the importance of the interests involved and the nature of the subsequent proceedings ...
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