Noland, In re
| Decision Date | 01 March 1978 |
| Docket Number | Cr. 3549 |
| Citation | 144 Cal.Rptr. 111,78 Cal.App.3d 161 |
| Parties | In re David Dale NOLAND on Habeas Corpus. |
| Court | California Court of Appeals Court of Appeals |
Petitioner seeks a writ of habeas corpus granting appropriate relief from a provision of an agreement to appear for trial in the Madera County Superior Court dated December 9, 1977, requiring petitioner to report to jail on February 17, 1978, unless prior to that date he had posted bail in the amount of $1,000.
On November 4, 1977, an agreement to appear executed by petitioner was filed in the Justice Court for the Madera Judicial District. The agreement provides in relevant part that petitioner would appear for a preliminary hearing on November 25, 1977, "and at all times and places as ordered by the court releasing (him) and as ordered by any court in which, or magistrate before whom, the charge is subsequently pending . . ." and that any court of competent jurisdiction may revoke the release and either return petitioner to custody or require bail as provided in the Penal Code.
On November 25, 1977, petitioner was held to answer in the superior court for several felony charges; he was allowed to continue at liberty on his own recognizance.
On December 9, 1977, petitioner was arraigned in the Madera County Superior Court (hereinafter the court) on a felony information and entered a plea of not guilty. The cause was set for jury trial on February 27, 1978. The court informed petitioner that in order to remain at liberty on his own recognizance pending trial he would be required to execute a new agreement to appear. The court stated, "One further requirement is this: Because so many of the Defendants have failed to appear for the trial, you would have to report to the jail ten days in advance of the trial date." The court explained that the agreement was to terminate ten days before trial because defendants in the past have failed to appear at trial, resulting in great cost to the county and inconvenience to the jurors. The court set bail at $1,000 and stated that petitioner need not report to jail if he posted bail at any time prior to February 17, 1978.
On December 9, 1977, petitioner executed an agreement to appear for trial on February 27, 1978. This agreement contains the following handwritten notation: "Defendant must report to Jail on 2-17-78 if Bail of $1,000.00 not posted."
The statutory scheme for the release of a criminal defendant upon his own recognizance contemplates that a release once properly granted remains effective throughout all subsequent proceedings in any court unless the release is earlier revoked. (See Pen.Code, §§ 1318-1318.6.) Thus, a release properly granted by a magistrate remains in effect while the cause is pending trial in the superior court unless and until it is properly revoked by the superior court.
Penal Code section 1318.6 addresses the subject matter of the revocation of a previously granted release. The statute provides in substance that a previously granted release may be revoked only upon a finding therein prescribed made in open court. 1
Former section 1318.6 vested the court in which the cause is pending with discretion to revoke a prior release. 2 The statute was amended in 1974 to require a prescribed finding in open court before revocation of a prior release. The obvious legislative intent of the amendment was to limit the court's discretion by specifying the grounds upon which a prior release may properly be revoked. The statutory requirement that a finding be made in open court is central to the legislative purpose; it serves to assure that a release is not revoked for improper reasons and to facilitate meaningful appellate review. (See In re Podesto (1976) 15 Cal.3d 921, 937-938, 127 Cal.Rptr. 97, 544 P.2d 1297.)
We hold that the finding prescribed by section 1318.6 is a mandatory condition precedent to the lawful revocation of a prior release; a release properly granted by any court or magistrate remains effective until such a finding has been made by the court in which the cause is then pending. 3
The court did not make the required finding on December 9, 1977. Therefore, it lacked authority to set bail or order petitioner to jail. 4 If termination of the agreement to appear on February 17 is viewed as a revocation of release on that date, the court was without authority to do so. Since petitioner's original release was not lawfully revoked, he had a right to remain at liberty on his own recognizance after December 9, 1977. The court abused its discretion when it required petitioner to agree to report to jail or post bail conditions totally inconsistent with a right to remain at liberty without bail.
Respondent contends that the court had authority to order petitioner to jail pursuant to the terms of the November 4 agreement wherein petitioner promised to appear as ordered by any court. This provision is expressly authorized by Penal Code section 1318.4, subdivision (a). 5
The language of subdivision (a) is broad enough to include an order that the defendant report to jail. However, subdivision (a) is a general provision which must yield to subdivision (c) of section 1318.4 and section 1318.6 which specifically address the subject matter of an order directing that the defendant be remanded to custody; the specific statutes authorize such an order only after the finding therein specified has been made in open court. Thus, custody orders are outside the scope of subdivision (a). Since the relevant agreement provision is expressly authorized by subdivision (a), we construe it to also exclude custody orders.
Petitioner is entitled to appropriate relief. (See In re Smiley (1967) 66 Cal.2d 606, 614, 58 Cal.Rptr. 579, 427 P.2d 179.) Respondent has made clear its position in opposition to the petition. We have concluded that an order to show cause would add little to the presentation already made and the writ should issue forthwith. (See In re Siegel (1975) 45 Cal.App.3d 843, 845, 120 Cal.Rptr. 8.)
Let a writ of habeas corpus issue directing the Madera County Superior Court to set...
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