In re Webb

• Decision Date: 31 January 2018
• Docket Number: D072981
• Citation: 229 Cal.Rptr.3d 16,20 Cal.App.5th 44
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Bettie WEBB on Habeas Corpus.

20 Cal.App.5th 44

229 Cal.Rptr.3d 16

IN RE Bettie WEBB on Habeas Corpus.

D072981

Court of Appeal, Fourth District, Division 1, California.

Filed January 31, 2018

As Modified February 8, 2018

Angela Bartosik and Robert Louis Ford for Petitioner.

Summer Stephan, District Attorney, Mark A. Amador and Marissa A. Bejarano, Deputies District Attorney, for Respondent.

O'ROURKE, J.

Bettie Webb was arrested and eventually charged in a felony complaint with knowingly bringing controlled substances into a state prison ( Pen. Code,¹ § 4573 ) and unauthorized possession of a controlled substance in a prison (§ 4573.6). She posted a $50,000 bond in accordance with the bail schedule and was released. At her arraignment, Webb pleaded not guilty to the charges, but over her objection the magistrate imposed a condition that she would be subject to a Fourth Amendment waiver, finding it had inherent authority to do so.² She petitioned for a writ of habeas corpus in the superior court challenging the search condition. Pointing out the magistrate had not made a verified showing of facts, the superior court denied the petition, citing facts developed at Webb's preliminary hearing.³

Webb files the present petition for a writ of habeas corpus contending the magistrate lacked statutory or inherent authority to impose the bail search condition, and imposition of the condition constitutes a pretrial restraint without due process protections such as notice and a hearing or any showing that she poses a heightened risk of misbehaving while on bail. Webb has properly sought habeas relief on this issue. ( People v. Standish (2006) 38 Cal.4th 858, 884, 43 Cal.Rptr.3d 785, 135 P.3d 32 ["it is settled that defendants may correct error in the setting of bail by seeking a writ of habeas corpus ... ordering reconsideration of custody status or release"]; In re Douglas (2011) 200 Cal.App.4th 236, 247, 132 Cal.Rptr.3d 582.) We issued an order to show cause, and conclude the trial court had no authority to condition Webb's bail on a waiver of her Fourth Amendment rights. Accordingly, we grant Webb's petition and order the search condition stricken from her bail order.

DISCUSSION

I. Review Standard

On this habeas corpus appeal, " ‘[o]ur standard of review is de novo with respect to questions of law and the application of the law to the facts.’ " ( In re Hansen (2014) 227 Cal.App.4th 906, 914, 174 Cal.Rptr.3d 146.) Here, the basic facts are undisputed, and the question before us is primarily one of law. Additionally, the trial court did not conduct an evidentiary hearing in denying Webb's habeas petition below, but, as stated, merely cited testimony from her preliminary hearing. When, as here, a superior court considers a petition for habeas corpus without an evidentiary hearing, " ‘the question presented on appeal is a question of law, which the appellate court reviews de novo. [Citation.]’ [Citation.] Similarly, when a trial court makes findings ‘based solely upon documentary evidence, we independently review the record.’ " (Cf. In re Stevenson (2013) 213 Cal.App.4th 841, 857, 152 Cal.Rptr.3d 457, quoting In re Rosenkrantz (2002) 29 Cal.4th 616, 677, 128 Cal.Rptr.2d 104, 59 P.3d 174 ; In re Zepeda (2006) 141 Cal.App.4th 1493, 1497, 47 Cal.Rptr.3d 172 [deferential review unwarranted where trial court holds no evidentiary hearing on habeas petition and court grants petition based solely upon documentary evidence].)

II. Legal Principles

The California Constitution provides, with exceptions not applicable here, that "[a] person shall be released on bail by sufficient sureties...." ( Cal. Const., art. I, § 12 ;⁴ see In re York (1995) 9 Cal.4th 1133, 1139 & fn. 4, 40 Cal.Rptr.2d 308, 892 P.2d 804 ( York ).) It prohibits excessive bail. ( Ibid . ) The Constitution further provides that the primary considerations of bail shall be "[p]ublic safety and the safety of the victim ...." ( Cal. Const., art. I, § 28, subd. (f), par. (3); Gray v. Superior Court (2005) 125 Cal.App.4th 629, 642, 23 Cal.Rptr.3d 50 ; In re McSherry (2003) 112 Cal.App.4th 856, 861, 5 Cal.Rptr.3d 497.) California's Legislature has codified this principle in section 1275, which lists the factors to be considered in issuing a bail order. That section provides in part: "In setting, reducing, or denying bail, a 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 at a hearing of the case. The public safety shall be the primary consideration." (§ 1275, subd. (a)(1); see People v. Accredited Sur. & Cas. Co., Inc. (2004) 125 Cal.App.4th 1, 7, 22 Cal.Rptr.3d 375 ["The unambiguous purpose of section 1275 is public safety"].)

A person charged with a bailable offense who seeks pretrial release from custody typically may either post bail, or alternatively seek the privilege of release on his or her own recognizance (OR). ( York , supra , 9 Cal.4th at p. 1141, 40 Cal.Rptr.2d 308, 892 P.2d 804 ; People v.Standish, supra , 38 Cal.4th at p. 884; 43 Cal.Rptr.3d 785, 135 P.3d 32 ; § 1270, subd. (a) ["Any person who has been arrested for, or charged with, an offense other than a capital offense may be released on his or her own recognizance by a court or magistrate who could release a defendant from custody upon the defendant giving bail, including a defendant arrested upon an out-of-county warrant"].) As for the option of bail, superior court judges of each county are required to adopt and annually revise a uniform countywide bail schedule for bailable felony and misdemeanor offenses, as well as non-Vehicle Code infractions, and in doing so, they "shall consider the seriousness of the offense charged." (§ 1269b, subds. (c), (e).) For an accused who has not yet appeared in court, bail "shall be in the amount fixed in the warrant of arrest or, if no warrant of arrest has been issued, the amount of bail shall be pursuant to the uniform countywide schedule of bail ...." (§ 1269b, subd. (b); see People v. Lexington National Insurance Corporation (2015) 242 Cal.App.4th 1098, 1102, 195 Cal.Rptr.3d 574.) The law provides without qualification that upon posting bail, "the defendant or arrested person shall be discharged from custody as to the offense on which the bail is posted." (§ 1269b, subd. (g).) Under this statutory bail scheme, a court that sets bail after having made the required section 1275 assessments has effectively determined that releasing the accused person pending trial does not present an unreasonable public safety risk.

An accused who bargains for OR release, on the other hand, is statutorily required to, among other things, "obey all reasonable conditions imposed by the court or magistrate." (§ 1318; York , supra , 9 Cal.4th at p. 1141, 40 Cal.Rptr.2d 308, 892 P.2d 804.) Hence, when an accused person seeks to be released from custody on OR, the Legislature is deemed to have granted courts or magistrates broad discretion to require that person to comply with all reasonable OR release conditions, including, in appropriate cases, a promise to comply with warrantless searches and seizures that may implicate a defendant's constitutional rights. ( York , at pp. 1144-1147, 40 Cal.Rptr.2d 308, 892 P.2d 804.) "Unlike [a person who has posted reasonable bail], a defendant who is unable to post reasonable bail has no constitutional right to be free from confinement prior to trial and therefore lacks the reasonable expectation of privacy possessed by a person unfettered by such confinement." ( York , at p. 1149, 40 Cal.Rptr.2d 308, 892 P.2d 804.)

In contrast, the Legislature makes no mention of a court or magistrate's authority to impose conditions for a person released on the scheduled amount of bail for a felony offense. (See Gray v. Superior Court , supra , 125 Cal.App.4th at p. 641, 23 Cal.Rptr.3d 50.) Section 1275, pertaining to setting of bail generally, does not refer to conditions. ( Gray v. Superior Court , at p. 642, 23 Cal.Rptr.3d 50.) Bail conditions are referenced in only two Penal Code sections, one of which—section 1270—governs persons charged with misdemeanors.⁵ The other, section 1269c, sets forth procedures (a peace officer declaration or application by the accused personally or through another) by which a court may depart from the bail schedule by either increasing or decreasing the bail amount. (§ 1269c; see People v. Lexington National Insurance Corporation , supra , 242 Cal.App.4th at p. 1103, 195 Cal.Rptr.3d 574.) On such an application, the magistrate or commissioner "is authorized to set bail in an amount that he or she deems sufficient to assure the defendant's appearance or to assure the protection of a victim [or family members]," and "to set bail on the terms and conditions that he or she, in his or her discretion, deems appropriate ...." (§ 1269c.)

III. There is No Statutory Basis for the Court's Imposition of the Fourth Amendment Waiver Bail Condition

Here, as the People admit, Webb posted the scheduled amount of bail; she did not seek to decrease it, and neither the court nor any law enforcement officer suggested an increased amount was appropriate. No other scenario in which the Legislature authorized imposition of appropriate bail conditions—for misdemeanants or departures from the bail schedule—applies, and we will not insert text to the statutory scheme to accomplish a purpose that does not appear on its face. ( Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 545, 67 Cal.Rptr.3d 330, 169 P.3d 559 ; Acqua Vista Homeowners Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1140, 213 Cal.Rptr.3d 323.) The best indication of Legislative intent are the words of the statutes the Legislature has enacted ( People v. Toney (2004) 32 Cal.4th 228, 232, 8 Cal.Rptr.3d 577, 82 P.3d 778 ) and though the Legislature knows how to write statutes granting a court or magistrate authority to impose bail conditions, it has not done...