In re McSherry

• Decision Date: 20 October 2003
• Docket Number: No. B169107.,B169107.
• Citation: 5 Cal.Rptr.3d 497,112 Cal.App.4th 856
• Parties: In re Leonard James McSHERRY, on Habeas Corpus.
• Court: California Court of Appeals Court of Appeals

5 Cal.Rptr.3d 497

112 Cal.App.4th 856

In re Leonard James McSHERRY, on Habeas Corpus.

No. B169107.

Court of Appeal, Second District, Division 7.

October 20, 2003.

Rehearing Denied November 20, 2003.

Review Denied February 4, 2004.

Mark E. Overland, Santa Monica, for Petitioner.

Steve Cooley, District Attorney, Brenda D. Riggs and Jessica Goulden, Deputy District Attorneys, for Plaintiff and Respondent.

MUÑOZ (AURELIO), J.^*

Penal Code section 1272¹ provides that a criminal defendant who has been convicted of a misdemeanor, but not yet sentenced, has an absolute right to bail. We issued a writ of habeas corpus to consider the question of whether a trial court may impose reasonable bail conditions on the granting of that bail. We hold that it may, but that the conditions have to be reasonable and related to public safety.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2003, petitioner, Leonard James McSherry, was charged with violating five counts of Penal Code section 653g (loitering about schools). At the initial bail hearing the prosecutor informed the court that petitioner had been convicted in 1974 of abducting an eight-year-old girl and placing her into his car, where he proceeded to masturbate in front of her. In 1979 he was sentenced to state prison after he grabbed a 15-year-old girl from a school, told her he was a police officer, drove to another location, masturbated in front of her and then digitally penetrated her. In 1986 he was convicted of five separate counts of violating section 653g and served two and one-half years in the county jail.² In 1989 he was convicted of rape and subsequently released when DNA tests proved he was not the perpetrator. Released from custody in 1991, he had been observed around schools where children were playing. Based upon those representations, the trial court set bail at $50,000 per count.

After a jury trial petitioner was convicted on three of the five counts. The jury found him not guilty as to a fourth count and was unable to arrive at a verdict as to the fifth. After petitioner was sentenced to 18 months in county jail, he requested bail on appeal. The trial court elected to continue the $250,000 bail, the same amount as it had been prior to trial, with no other conditions. On July 14 and 15, 2003, the trial court held a hearing and issued a nunc pro tunc order imposing conditions on petitioner's bail pending appeal. The court stated it was doing so out of concern for public safety.

The specific conditions were (1) petitioner was not to drive any motor vehicle; (2) petitioner was to stay at least 500 yards away from children under the age of 17; and (3) petitioner was to stay at least 500 yards away from any school, park, playground, daycare center or swimming pool in which children were present.

On July 24, 2003, petitioner was once again arrested and a new case was filed against him alleging five separate violations of section 166, subdivision (a)(4) (willful violation of court order in that he did not stay away from parks and schools). Based upon the alleged violations, the court exonerated petitioner's $250,000 bail and reset bail in the amount of $1 million.

This petition for writ of habeas corpus followed.

DISCUSSION

A. The Standard for Review

Habeas corpus is an appropriate vehicle by which to raise questions concerning the legality of bail grants or deprivations. (In re Catalano (1981) 29 Cal.3d 1, 8, 171 Cal.Rptr. 667, 623 P.2d 228; In re Newbern (1961) 55 Cal.2d 500, 503, 11 Cal.Rptr. 547, 360 P.2d 43.) In evaluating petitioner's contentions, this court may grant relief without an evidentiary hearing if the return admits allegations in the petition that, if true, justify relief. (In re Fields (1990) 51 Cal.3d 1063, 1070, fn. 2, 275 Cal.Rptr. 384, 800 P.2d 862; In re Sixto (1989) 48 Cal.3d 1247, 1252, 259 Cal. Rptr. 491, 774 P.2d 164; In re Saunders (1970) 2 Cal.3d 1033, 1047-1048, 88 Cal. Rptr. 633, 472 P.2d 921; see, e.g., People v. Frierson (1979) 25 Cal.3d 142, 158 Cal. Rptr. 281, 599 P.2d 587; In re Haygood (1975) 14 Cal.3d 802, 805, 122 Cal.Rptr. 760, 537 P.2d 880.) On the other hand, we may deny the petition, without an evidentiary hearing, if we are persuaded the contentions in the petition are without merit. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 653-657, 250 Cal.Rptr. 659, 758 P.2d 1189; People v. Babbitt (1988) 45 Cal.3d 660, 248 Cal.Rptr. 69, 755 P.2d 253; People v. Romero (1994) 8 Cal.4th 728, 739, 35 Cal.Rptr.2d 270, 883 P.2d 388.)

B. The Trial Court Had the Authority to Impose Bail Conditions

Section 1272 provides in relevant part, "After conviction of an offense not punishable with death, a defendant who has made application for probation or who has appealed may be admitted to bail: [¶] ... [¶] 2. As a matter of right, before judgment is pronounced pending application for probation in cases of misdemeanors, or when the appeal is from a judgment imposing imprisonment in cases of misdemeanors." Thus, petitioner, who had received jail sentences for his convictions, was absolutely entitled to bail. (In re Newbern, supra, 55 Cal.2d at p. 503, 11 Cal.Rptr. 547, 360 P.2d 43.) Furthermore, in setting bail the court had to take into account the factors set forth in section 1275. (Newbern, at p. 504, 11 Cal.Rptr. 547, 360 P.2d 43.)

Newbern was a case where the defendant was repeatedly arrested for public intoxication. (§ 647, subd. (f).) His intoxication was such a problem that he once made a court appearance while under the influence of alcohol. After he had been convicted and sentenced on two separate counts, the court set bail on appeal in the sum of $500 as to each count and bail at $100 was set on a new charge of public drunkenness. Newbern filed a petition for habeas corpus contending the bail was too high. The Supreme Court stated, "The absolute right to bail extends to the pendency of an appeal after judgment imposing imprisonment in cases of misdemeanor." (Pen.Code, § 1272, subd. 2.) Thus, Newbern had the constitutional and statutory right to be released on a reasonable bail as to all charges with which we are here concerned. The only permissible purpose of such bail, whether before or after conviction, is `practical assurance that defendant will attend upon the court when his presence is required.'" (In re Newbern, supra, 55 Cal.2d at pp. 503-504, 11 Cal.Rptr. 547, 360 P.2d 43.) However, the court then went on to state that considering Newbern's habitual drunkenness, his prior disruption of court proceedings due to his intoxication, the fact he was appearing representing himself as opposed to being represented by "sober counsel," and the fact he was facing a year in jail justified the court's imposing of the bail. (Id., at p. 504.)

In 1961, when Newbern was decided, section 1275 provided the judge setting bail was "to take into consideration the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearance...." That section was amended by the Legislature in 1987 to its present form which now reads, "(a) In setting, reducing, or denying bail, the 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 hearing of the case. The public safety shall be the primary consideration." (Italics added.) Thus, public safety, not the certainty of appearance, is now the primary factor for the court to consider in the setting of bail.

Petitioner's reliance on People v. Barbarick (1985) 168 Cal.App.3d 731, 736, 214 Cal.Rptr. 322 and its statements that public safety is not to be considered in imposing bail conditions is misplaced. Barbarick was decided in 1985, two years before the amendment to section 1275. Furthermore, in In re York (1995) 9 Cal.4th 1133, 40 Cal.Rptr.2d 308, 892 P.2d 804, the California Supreme Court was considering a similar contention as it related to judges imposing "search conditions" on defendants who were being released on their own recognizance (O.R.). The language of enabling statute (§ 1318) was ambiguous at best as to whether this was proper. Nonetheless, the Supreme Court stated, "Viewed and analyzed in the light of basic rules relating to the interpretation of statutes, we find that, although nothing in the legislative history specifically addresses the question whether the Legislature intended to permit OR releases to be conditioned upon a waiver of Fourth Amendment rights, it is clear the Legislature intended to codify the authority of a court or magistrate, in imposing OR conditions, to weigh considerations relating to the public safety that extend beyond those intended to ensure subsequent court appearances." (In re York, supra, at p. 1144, 40 Cal.Rptr.2d 308, 892 P.2d 804.)

If the bail statutes are read as argued by petitioner, then the change in section 1275 is rendered superfluous for people convicted of misdemeanors. Additionally, petitioner ignores section 1270 which provides that a person charged with a misdemeanor is entitled to an O.R. release unless the court finds release of the defendant is likely to compromise public safety. If the court denies an O.R. release "the court shall then set bail and specify the conditions, if any, whereunder the defendant shall be released." (Ibid.) In making these determinations, "[p]ublic safety shall be the primary consideration." To accept petitioner's contentions would mean that a court has the power to impose bail conditions on a person who has merely been charged with a crime and before the nature of his involvement has been determined, but once the defendant has been found guilty and found to be deserving of the maximum sentence, then the court must release the defendant as a matter of right and is powerless to impose any conditions on his or her bail.

Such an interpretation is nonsensical. Petitioner's arguments also...