In re Kowalczyk

• Decision Date: 21 November 2022
• Docket Number: A162977
• Parties: IN RE Gerald John KOWALCZYK on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

85 Cal.App.5th 667

301 Cal.Rptr.3d 648

IN RE Gerald John KOWALCZYK on Habeas Corpus.

A162977

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

Filed November 21, 2022

Law Offices of Marsanne Weese, Marsanne Weese, Rose Mishaan, San Francisco; Civil Rights Corps, Carson White, Katherine Hubbard, Salil Dudani, and Alec Karakatsanis for Petitioner

ACLU Foundation of Northern California, Avram Frey, Mica Doctoroff, Emi Young; ACLU Foundation of Southern California, Summer Lacey, Los Angeles, for American Civil Liberties Union of Northern California, American Civil Liberties Union of Southern California, California Public Defenders Association, Crime Survivors for Safety and Justice, and Claudia Y. Bautista, Ventura County Public Defender as Amicus Curiae on behalf of Petitioner

Stephen M. Wagstaffe, District Attorney of San Mateo County, Lechelle Mercier, Law Clerk, Bryan Abanto and Joshua Martin, Deputy District Attorneys for Real Party in Interest

Fujisaki, J.

Gerald John Kowalczyk filed a petition for writ of habeas corpus challenging the trial court's decision denying him bail. We issued an order to show cause and later asked the parties to brief a number of issues, including whether pretrial detention is authorized outside of the circumstances specified in article I, section 12 of the California Constitution. We ultimately dismissed the habeas petition as moot on the motion of the People, the real party in interest, who informed us that petitioner had pled and been sentenced in the underlying criminal matter.

The California Supreme Court granted review and transferred the matter back to this court with directions to vacate our dismissal order and to "issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases— article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution — or, in the alternative, whether these provisions can be reconciled." At this juncture, we have received additional briefing from the parties and held oral argument on the question posed.

Adhering to settled principles governing the construction of constitutional provisions, we conclude that the bail provisions of article I, section 28, subdivision (f)(3) can be reconciled with those of article I, section 12 (hereafter section 12 and section 28 (f)(3)) and that both sections govern bail determinations in noncapital cases. This means that section 12 ’s general right to bail in noncapital cases remains intact, while full effect must be given to section 28 (f)(3)’s mandate that the rights of crime victims be respected in all bail and OR release determinations. In so concluding, we reject any suggestion that section 12 guarantees an unqualified right to pretrial release or that it necessarily requires courts to set bail at an amount a defendant can afford.

FACTUAL AND PROCEDURAL BACKGROUND

The People charged petitioner by complaint with one felony count of vandalism ( Pen. Code, § 594, subd. (b)(1) ), three felony counts of identity theft (id. § 530.5, subd. (a)), one misdemeanor count of petty theft of lost property (id. § 485), and one misdemeanor count of identity theft (id. § 530.5, subd. (c)(1)). Petitioner waived arraignment on the complaint, and the court set bail at $75,000. Prior to his preliminary hearing, petitioner filed a motion seeking release on his own recognizance (OR) with drug conditions and electronic monitoring, arguing that he posed no danger to the alleged victims or the community and was a minimal risk for nonappearance at future court proceedings.

At a hearing in May 2021, the prosecutor opposed the bail motion and requested that bail remain set at $75,000. According to the prosecutor, the judge who initially set bail determined that petitioner posed a danger to the public based on the recommendation of a pretrial services report and on petitioner's extensive RAP sheet. Given petitioner's ongoing commission of crimes, including while on probation, the prosecutor argued that no less restrictive nonfinancial conditions could protect the public from him. Petitioner contended otherwise, noting there was no showing of flight risk or a risk of "harm to others" insofar as the charged offenses were property crimes and the majority of his prior offenses were merely theft or drug related. Petitioner also urged consideration of his inability to pay the bail amount and the imposition of alternative conditions, such as drug testing.

The court denied bail altogether and ordered petitioner detained. Although the court indicated it was not worried for the safety of the victims of the charged offenses, it emphasized protection of the public as the primary concern and viewed petitioner's property crimes as a significant public safety issue. The court observed that petitioner was a chronic reoffender whose RAP sheet documented 64 prior convictions and was over 100 pages long. Among those prior convictions were at least four convictions for driving under the influence. Petitioner received the maximum score of 14 on the Virginia Pretrial Risk Assessment Instrument, and the pretrial services report indicated petitioner failed to abide by supervised OR conditions in the last five years. The court also indicated its concern that petitioner might abscond, noting his convictions spanned multiple states and multiple counties in California. Furthermore, petitioner—who was unhoused and unemployed—made no showing of any incentive to remain and attend future court appearances. Highlighting petitioner's unprecedented "level of recidivism," the court found that no nonfinancial or financial conditions could accomplish the goals of protecting the public or ensuring petitioner's appearance at future court proceedings.

At the preliminary hearing in mid-May 2021, the court (a different judicial officer than the two who considered the issue of bail before) held petitioner to answer to the felony identity theft counts, but not the felony vandalism count, and " ‘certified’ " the misdemeanor counts to the superior court. The court considered and denied the defense's oral motion to reduce bail, explaining that the prior judge already considered the issue of bail and that the circumstances had not sufficiently changed to warrant disturbing that order.

In mid-June 2021, petitioner again moved to reduce bail or for OR release, contending that he posed no risk to specific victims or the public and that nonfinancial terms could be used to secure his appearance. He also noted he was not held to answer on the felony vandalism charge, which he claimed was a changed circumstance warranting reconsideration of bail. At one point during the hearing, but before the prosecutor raised the issue of petitioner's extensive criminal history and recidivism, the court (a different judicial officer than those before) indicated she did not see a public safety issue in the case. Ultimately, the court denied the motion and declined to disturb the no bail order due to the absence of changed circumstances.

In July 2021, petitioner filed his habeas petition challenging the denial of bail on various grounds. As indicated, we issued an order to show cause but ultimately dismissed the petition as moot. The California Supreme Court granted review, and transferred the matter back to this court with directions to vacate our order dismissing the petition as moot, to conduct further proceedings as appropriate, and to "issue an opinion that addresses which constitutional provision governs the denial of bail in noncapital cases— article I, section 12, subdivisions (b) and (c), or article I, section 28, subdivision (f)(3), of the California Constitution —or, in the alternative, whether these provisions can be reconciled."

DISCUSSION

A. California Constitutional Provisions Relating to Bail

1. Early History

In 1849, article I, section 7 of the California Constitution provided: "All persons shall be bailable, by sufficient sureties, unless for capital offenses, when the proof is evident or the presumption great." ( Cal. Const. of 1849, art. I, § 7.) Article I, section 6 of the 1849 Constitution also provided: "Excessive bail shall not be required ...." These provisions were subsequently joined and set forth in article I, section 6 of the California Constitution of 1879, and in 1974 they were relocated to section 12 with an added provision explicitly permitting OR release at the court's discretion.¹ ( Standish , supra , 38 Cal.4th at p. 874, 43 Cal.Rptr.3d 785, 135 P.3d 32.)

2. Propositions 4 and 8 in 1982

In 1982, Proposition 4 proposed to amend section 12 by adding two subdivisions that would "broaden the circumstances under which the courts may deny bail." (Ballot Pamp., Primary Elec. (June 8, 1982) analysis of Prop. 4 by the Legislative Analyst, p. 16.)² According to the Legislative Analyst, under new subdivision (b), bail "could be denied in felony cases involving acts of violence against another person when ... the proof of guilt is evident or the presumption of guilt is great and ... there is a substantial likelihood that the accused's release would result in great bodily harm to others." (Id. , analysis of Prop. 4 by the Legislative Analyst, p. 16; see id. , text of Prop. 4, p. 17.) And under new subdivision (c), bail "could be denied in felony cases when ... the proof of guilt is evident or the presumption of guilt is great and ... the accused has threatened another with great bodily harm and there is a substantial likelihood that the threat would be carried out if the person were released." (Id. , analysis of Prop. 4, p. 16.) Proposition 4 also proposed to add a constitutional "requirement that the courts, in fixing the amount of bail, consider ... the seriousness of the offense, the person's previous criminal record, and the likelihood that the person will appear to stand trial[ ]." (Ibid. )

On the same ballot was Proposition 8—known as " ‘The Victims’ Bill of Rights’ "—which would...