In re White

• Decision Date: 06 March 2018
• Docket Number: D073054
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE Christopher Lee WHITE on Habeas Corpus.

21 Cal.App.5th 18

229 Cal.Rptr.3d 827

IN RE Christopher Lee WHITE on Habeas Corpus.

D073054

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

Filed March 6, 2018

Boyce & Schaeffer, Laura Schaefer, Robert E. Boyce and Benjamin Kington, San Diego, for Petitioner.

Summer Stephan, District Attorney, Jesus Rodriguez, Assistant District Attorney, Peter Quon, Jr., Mark A. Amador, Linh Lam and Daniel Owens, Deputy District Attorneys for San Diego County District Attorney.

BENKE, Acting P.J.Petitioner Christopher Lee White is in custody awaiting trial on charges of attempted kidnapping with intent to commit rape ( Pen. Code, § 209, subd. (b) ),¹ assault with intent to commit rape (§ 220, subd. (a)(1) ), contact with a minor with intent to commit a sexual offense (§ 288.3, subd. (a) ), and false imprisonment (§§ 236, 237, subd. (a) ). At his preliminary hearing, White requested release on reasonable bail.

The California Constitution provides that a defendant "shall be released on bail by sufficient sureties" unless an exception applies. ( Cal. Const., art. I, § 12.) One such exception covers "[f]elony offenses involving acts of violence on another person, or felony sexual assault offenses on another person, when the facts are evident or the presumption great and the court finds based on clear and convincing evidence that there is a substantial likelihood the person's release would result in great bodily harm to others." (Id. , art. I, § 12, subd. (b).) The trial court here recognized that it is "unusual" to deny bail for a noncapital offense, but it nonetheless found that the exception applied.

White challenges the court's finding by petition for writ of habeas corpus. (§ 1490.) He asserts that the court erred by finding that the constitutional exception applied. For reasons we will explain, we disagree and deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

Fifteen-year-old J.D. lived with her family near the beach in Encinitas, California.

On July 26, 2017, she was staying with friends because her family had been on vacation. In the afternoon, she rode her bicycle to her family's house to get her surfboard and go surfing. Across from her house she saw two men standing near a blue truck. They were playing loud music and looked out of place. J.D. felt like they were watching her.

A woman loading her car nearby saw the two men and thought they looked "creepy." The men were staring at her as well. She was concerned that they might burglarize her vacation rental after she left. The woman's son thought they were being "creepy" also, so he took a Snapchat video of them. He told police he was worried about the men wanting to kidnap his younger brothers.

J.D. had a bad feeling about the men, so she went through a gate into her neighbor's yard, hopped over the fence, and went into her garage. She later said she was trying to prevent the men from seeing where she lived. J.D. retrieved her surfboard from the garage, went out front, and left the surfboard in her driveway. The men were still staring at her, which made her feel uncomfortable.

J.D. went inside, but she became concerned that someone would try to steal her surfboard. She grabbed some surfboard wax, went back outside, and started to wax the surfboard. The men were still standing by their truck. J.D. noticed a few people walk by, and a surfer came up from the beach and asked to borrow some wax. This request was normal, so J.D. agreed.

J.D. continued to wax her surfboard in the driveway. At some point, when she had her back to the road, one of the men from the truck came up behind her and grabbed her neck "like a pressure lock." The man—later identified as White's roommate Jeremiah Owens—shoved J.D.'s face toward the driveway, but J.D. managed to catch herself with her hands. Owens said, "All right. Let's do this." He tried to pull her upright and toward the truck. J.D. repeatedly told him "no" and "stop."

J.D. managed to fight Owens off and step away from him. She saw the other man—later identified as White—still standing by the truck, looking up and down the street. She told Owens and White, "That's not cool. You can't do that." White said, "We're sorry" or "Sorry," and J.D. backed away toward her house. But then, while J.D. was watching them, White looked at Owens and said, "Go in the house." J.D. thought Owens would try and attack her again.

J.D. went through the gate, locked it "as fast as [she] could," and ran into the house. Her neighbor's dog was barking near the gate. J.D. was "really scared" and locked both doors into the house. She thought Owens and White were going to follow her inside. She thought they might break the lock on the gate or hop over the fence. She was going to hide, but she heard the truck's engine start. She looked outside and saw White in the driver's seat. Owens ran around to the passenger side. J.D. thought they looked scared, and they drove quickly away. She started hyperventilating and crying. She tried and eventually succeeded in calling her parents, who told her to call the police. She called 911, and police responded.

The police began an investigation and detained White. In two interviews with police, White denied knowing that Owens intended to attack J.D. White said Owens told him he thought J.D. was pretty. White admitted he "might have said go and get her" to Owens, but he said he meant go "talk to her." Owens then told him "hey watch out" or "watch this" and walked over to J.D. White said he thought Owens was just going to talk to her. White claimed that, when the attack began, he yelled at Owens to stop and told J.D. he was sorry. White said Owens told him afterwards that a "primal instinct" came over him. White was concerned that Owens had mental health issues. Forensic examination of White's mobile phone revealed an internet search history in the days after the attack that included the questions, "Why would someone act on their primal instinct?," "How can you tell if someone you know is being brain washed?," and "What to do if someone you know is being brainwashed?" Owens was later arrested as well.

The San Diego County District Attorney charged White and Owens with the offenses identified above. White was arraigned, pleaded not guilty, and was detained without bail. In advance of his preliminary hearing, White filed a written request for bail. It alleged that he had no criminal history and was not a violent person. It was supported by a number of letters from family and friends.

At the preliminary hearing, the court heard testimony from J.D. and several investigating officers. After the testimony, the prosecution asked the court to find probable cause and bind White and Owens over for trial. The prosecution believed that Owens was the direct perpetrator and White was an aider and abettor of the attack on J.D. The court agreed. It found J.D. to be a credible witness. As to White, it found persuasive the following facts and inferences from J.D.'s testimony: (1) White and Owens loitered in front of J.D.'s house without any legitimate purpose, (2) they stared at J.D. in an abnormal manner, (3) White told Owens he should go into the house with J.D., (4) White waited for Owens to come back from attacking J.D. and drove away with him, and (5) White behaved like a lookout during the attack.

The court then heard White's request for bail. White's counsel argued that White was a high school graduate, was gainfully employed as a cable installer, and had the support of family and friends. He requested that bail be set at $50,000. Owens requested bail as well. The prosecution opposed. As to White, it argued, "I will submit to the Court that Mr. White did, in fact, aid and abet, encouraged this very violent crime. And I believe the Court is on sound legal ground to deny bail to him. I'll submit to the Court as to whether you would like to set bail, given the fact that he is not as culpable perhaps as Mr. Owens in being the direct perpetrator."

The court recognized, "It would be an unusual case, in fact, it would be the quite rare case where someone was held on a non-capital offense without bail." But the court believed the circumstances justified remand without bail here. It explained, "In looking at this case and the facts of the case, I do believe the facts are evident, [and] the presumption is great. I do find by clear and convincing evidence that one defendant inflicted the acts of violence, the other person aided and abetted in that. The Court finds on the basis of the clear and convincing evidence that there is a substantial likelihood that the release of either of these gentlemen would result in great bodily harm to others. I think the individuals [sic ] at threat would be J.D. herself. I also think other children, who are the most vulnerable members of our society, would be at risk based on the conduct in this case and what's alleged to have occur[red] in this case. So it is extremely unusual, but I do find under these particular facts that the burden is met."

White challenged the court's remand order by petition for writ of habeas corpus in this court. He requested that we direct the trial court to vacate the order and set reasonable bail. We requested and received an informal response from the district attorney. After considering the petition and the informal response, we issued an order to show cause why the relief sought by White should not be granted. This proceeding followed.

DISCUSSION

I

As noted, the California Constitution provides that a defendant "shall be released on bail by sufficient sureties" unless an exception applies. ( Cal. Const., art. I, § 12.) The Constitution initially contained a single exception, for "capital offenses when the proof is evident or the presumption great." (Former Cal. Const., art. I, § 6 ; In re Application of Weinberg (1918) 177 Cal. 781, 782, 171 P. 937 ; Ex parte Curtis (1891) 92 Cal. 188, 189, 28 P. 223 ; In re Nordin (1983) 143 Cal.App.3d 538, 543, 192 Cal.Rptr. 38 ( Nordin ).) The electorate later...