McDermott v. Superior Court
| Decision Date | 25 February 1972 |
| Docket Number | S.F. 22844 |
| Citation | 493 P.2d 1161,6 Cal.3d 693,100 Cal.Rptr. 297 |
| Court | California Supreme Court |
| Parties | , 493 P.2d 1161 Hugh McDERMOTT et al., Petitioners, v. SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents. The PEOPLE, Real Party in Interest. In Bank |
Edward T. Mancuso, Public Defender, John Kaplan, Stanford, and Robert Bartels for petitioners.
Evelle J. Younger, Atty. Gen., Edward P. O'Brien and Gloria F. DeHart, Deputy Attys. Gen., for respondents and for real party in interest.
Petitioners seek a writ of mandate or prohibition ordering that respondents cease requiring that they and the class of persons whom they represent post the 25% Penalty assessment provided for by section 13521 of the Penal Code in order to obtain their release from custody while awaiting trial.
Facts: Two of the petitioners are charged with violating section 11500.5 of the Health and Safety Code. The other four are charged with violating one or more of the following Penal Code sections: 211, 288a, 475a, or 487. Three of the petitioners have posted 'bail' and deposited the 25% Penalty assessment levied under section 13521 of the Penal Code and have been released. The other three have not done so and are still being held in custody.
Question: Is section 13521 of the Penal Code constitutional as it applies to bail?
No. Article, I, section 6, of the California Constitution provides: The Eighth Amendment to the United States Constitution likewise prohibits excessive bail.
Section 1275 of the Penal Code requires that the judge or magistrate take into consideration, in fixing the amount of bail, 'the seriousness of the offense charged, the previous criminal record of the defendant, and the probability of his appearing at the trial or hearing of the case.'
Under section 13521 of the Penal Code, a 25% Penalty assessment is levied for every fine, penalty or forfeiture imposed and collected by the courts for certain criminal offenses, including those with which petitioners have been charged. With respect to bail, the section provides: (Italics added.) The section requires that the penalty assessments levied upon fines and upon bail which is subsequently forfeited be deposited in the Peace Officers' Training Fund after being transmitted to the State Treasury.
The purpose of bail is to insure the attendance of the defendant in court and his obedience to the court's orders and judgment, and there should be no suggestion of revenue to the government or punishment of the defendant or his surety. (In re Newbern, 55 Cal.2d 500, 504(4, 5), 11 Cal.Rptr. 547, 360 P.2d 43; People v. Wilcox, 53 Cal.2d 651, 656--657(6), 2 Cal.Rptr. 754, 349 P.2d 522.)
Petitioners logically contend that if bail is set at an amount determined to be reasonable in view of the factors required by section 1275 of the Penal Code to be considered, and a 25% Penalty assessment is added to the amount of such bail and the defendant required to deposit the total sum before he can obtain his release from custody, the result would be to exact excessive bail.
Under the record herein, it cannot be determined whether the penalty assessments for the various petitioners were included in the amounts set as reasonable bail for them or were levied in addition thereto. In an exhibit lodged with the court, it is stated: (The San Francisco Committee on Crime, a Report on the Criminal Court of San Francisco, Part II (1971) p. 31.)
The plain language of section 13521 of the Penal Code, however, requires, as contended by petitioners, that 25% Of the amount determined to be reasonable bail be added to the amount of the bail and that the total sum be exacted of a defendant before he is released from custody. Accordingly, we hold that the statute is unconstitutional as it applies to bail, since the result would clearly be, if the statute is followed, to require excessive bail.
It has been suggested that the penalty assessment may be regarded as a fine rather than bail, in accordance with the holding in Sawyer v. Barbour, 142 Cal.App.2d 827, 300 P.2d 187. The statute there involved (former Veh.Code, § 773) permitted a penalty assessment on fines or bail in vehicular offenses, and the Court of Appeal determined that the assessment was proper as an additional fine.
Bail for traffic law offenses is, generally, in effect a fine and is employed more for the purpose of punishment and judicial convenience than insuring that the trial process will take place. (See Veh.Code, § 40512.) Consequently, the fact that the penalty assessment for traffic law offenses was held in Sawyer to constitute a fine is not controlling here. The bail in Sawyer was in the amount of $5 for the offense of failing to stop at a sign-posted crosswalk, and the penalty assessment was in the amount of $1. From the amount of the bail, it is obvious that it was not set for the purpose of insuring the defendant's appearance in court and hence that it was not true bail. In the present case, on the other hand, each of the petitioners was charged with a felony; and unquestionably the purpose of bail in each instance was to insure that the accused would appear in court.
In People v. Norman, 252 Cal.App.2d 381, 60 Cal.Rptr. 609, bail was set for a defendant charged with burglary, and the penalty assessment required by section 13521 of the Penal Code was 'appended as part of his bail.' (P. 398, 60 Cal.Rptr. p. 623.) The Court of Appeal, without much discussion, held, relying principally upon Sawyer, that section 13521 of the Penal Code does not violate the constitutional provision against excessive bail. (Pp. 398--399, 60 Cal.Rptr. 609.) To the extent that Norman infers that the penalty assessment may be levied in addition to bail set in an amount determined to be reasonable to insure a defendant's appearance in court, it is disapproved. 1 Any statements in Sawyer so inferring are likewise disapproved.
It is clear from what we have said, however, that the posting of funds, although described as 'bail' and penalties in excess thereof, for purposes Other than insuring an...
To continue reading
Request your trial
-
Huy Thanh Vo v. Nelson & Kennard, CIV. S-12-2537 LKK/CKD
...which plaintiff could have proceeded. In support of its position, U.S. Bank cites Cal. Civ. Code § 3513 and McDermott v. Superior Court, 6 Cal. 3d 693, 698 n.3 (1972). U.S. Bank's position is without merit. Cal. Civ. Code § 3513 sets forth a maxim of jurisprudence ("Any one may waive the ad......
-
Huy Thanh Vo v. Nelson & Kennard
...which plaintiff could have proceeded. In support of its position, U.S. Bank cites Cal. Civ.Code § 3513 and McDermott v. Superior Court, 6 Cal.3d 693, 698 n. 3, 100 Cal.Rptr. 297, 493 P.2d 1161 (1972). U.S. Bank's position is without merit. Cal. Civ.Code § 3513 sets forth a maxim of jurispru......
-
People v. Silva
...directly in the Los Angeles Superior Court, and in that action."10 The People's reliance upon McDermott v. Superior Court (1972) 6 Cal.3d 693, 698, 100 Cal.Rptr. 297, 493 P.2d 1161, footnote 3, is misplaced. That case found merit to the "public reimbursement" theory under circumstances wher......
-
Cnty. of L. A. v. Williamsburg Nat'l Ins. Co.
...( Sawyer v. Barbour (1956) 142 Cal.App.2d 827, 833, 300 P.2d 187, overruled on another point in McDermott v. Superior Court (1972) 6 Cal.3d 693, 697, 100 Cal.Rptr. 297, 493 P.2d 1161.) The purpose of bail is to assure the defendant's attendance in court when his presence is required and his......