Pipinos, In re

• Decision Date: 10 December 1982
• Docket Number: Cr. 22122
• Citation: 187 Cal.Rptr. 730,33 Cal.3d 189,654 P.2d 1257
• Court: California Supreme Court
• Parties: , 654 P.2d 1257, 28 A.L.R.4th 205 In re Thomas Hercules PIPINOS on Habeas Corpus.

Page 730

187 Cal.Rptr. 730

33 Cal.3d 189, 654 P.2d 1257, 28 A.L.R.4th 205

In re Thomas Hercules PIPINOS on Habeas Corpus.

Cr. 22122.

Supreme Court of California In Bank.

Dec. 10, 1982.

As Modified Dec. 23, 1982.

Nicholas De Pento, San Diego, for petitioner.

Quin Denvir, State Public Defender, and Marjorie C. Swartz, Deputy State Public Defender, as amici curiae for petitioner.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., A. Wells Petersen, and Jay M. Bloom, Harley D. Mayfield, Deputy Attys. Gen., for respondent.

REYNOSO, Justice.

In In re Podesto (1976) 15 Cal.3d 921, 938, 127 Cal.Rptr. 97, 544 P.2d 1297, we held, pursuant to our supervisory authority over state criminal procedure, that trial courts should render a statement articulating their reasons for denying an application for release pending appeal. ¹ In this proceeding for writ of habeas corpus we are called upon to provide guidance as to what constitutes an adequate statement of reasons for denying release pending appeal. Particularly, we must determine whether the reasons stated by the trial court in denying petitioner's request for bail on appeal provide sufficient specificity to permit meaningful appellate review.

Petitioner was convicted of conspiracy and possession of controlled substances for sale and was sentenced to state prison. The trial court denied his motion for release on bail pending appeal on the basis that he posed a "substantial flight risk," represented "some risk to society," and that the court did not "perceive a substantial likelihood of success on appeal." Petitioner, relying on Podesto and federal decisional authority, contends (1) the trial court failed to adequately articulate its reasons for denying bail on appeal, and (2) the denial of bail constituted an abuse of discretion.

As we shall explain, we find petitioner's first contention sound and conclude that the trial court's statement is inadequate to allow us to review its evaluative process in weighing the factors by which we must judge the validity of the denial. In accordance with the reasoning underlying our decision in Podesto, we hold that a trial court's statement of reasons should contain more than mere findings of ultimate fact or a recitation of the relevant criteria for release on bail; the statement should clearly articulate the basis for the court's utilization of such criteria.

With respect to petitioner's claim of abuse of discretion, we conclude that the court's statement of reasons is in itself insufficient to review the claim, even if complemented by the court's comments at the sentencing hearing. Because of the inadequacy of the court's statement, we cannot determine whether the court properly exercised its discretion in light of all the attending circumstances. Accordingly, the writ should be denied. We conclude, however, that in light of the trial court's noncompliance with the mandate of Podesto, petitioner is entitled to an immediate hearing on his present application for bail on appeal.

I

Petitioner Thomas H. Pipinos (hereafter defendant) was convicted by a jury of five offenses dealing with controlled substances: one count of conspiracy to transport or furnish controlled substances (Pen.Code, § 182; Health & Saf. Code, § 11379), and four counts of possession of controlled substances for sale (Health & Saf.Code, § 11378). After the verdict was entered, the trial court ordered defendant to appear at a later date for a sentencing hearing; the court further ordered that defendant be released on bail of $60,000 pending sentencing. Defendant had made all required appearances during the year trial proceedings were pending.

On June 19, 1980, defendant appeared at the sentencing hearing as required by the trial court, and he was sentenced to a four-year prison term. That same day, defendant moved for an order releasing him on bail pending appeal. The prosecutor, ² urging that bail be denied, conceded that defendant had ties to the community--"a house, a family and a business"--but nonetheless argued that defendant was a flight risk in view of the impending prison term; that defendant's conviction of drug offenses indicated that he posed a "very significant danger to society"; and, finally, that defendant's appeal was frivolous since pretrial petitions for writ of mandate raising the same issues had been denied. Defense counsel sought to rebut each of these assertions by noting that defendant had appeared at all prior proceedings, that defendant's conduct since his arrest had been exemplary, and that the proposed grounds of his appeal from conviction have legitimate merit. ³ Defense counsel also made a lengthy argument attaching significance to the fact that defendant had not fled during a recess when, immediately prior to argument on the motion, the judge and bailiff had temporarily left the courtroom.

At the time of defendant's motion for bail on appeal, the trial court had before it three reports which had been offered in evidence at the immediately preceding sentencing hearing. The reports were prepared by the probation officer and two doctors who had been engaged to make a sentencing recommendation. All recommended no state prison custodial time. All three reports characterize defendant as a family man and aggressive businessman who became involved in the sale of methamphetamines through poor judgment, greed and the bad influence of business associates in the bar supply distribution business.

The probation officer's report indicates that defendant was a self-employed salesman, age 38, who had lived in San Diego County for 15 years. He has been married since 1970 and is the sole support of his wife and two children. At the time of his arrest he had been earning $50,000 per year as a master distributor for a bar supply dealership. The offenses of which defendant was convicted occurred when he sold methamphetamines to an undercover informant. The report acknowledged the seriousness of the offenses and concluded that defendant was motivated primarily by monetary considerations; nevertheless, the probation officer pointed out that defendant had no prior criminal record and, accordingly, recommended a formal probation of five years with a maximum term of local confinement.

Dr. Thomas Rodgers, a psychiatrist, submitted to the court an evaluation letter which concluded that defendant is free from any mental disorganization or disorder, that he is not psychotic, that he is not violent, that he has no history of drug abuse, and that, in his professional opinion, he presents no threat to the community upon his release. Accordingly, Rodgers recommended monitored probation. Dr. G. Thomas Gitchoff, a criminologist, described defendant as a highly motivated, energetic man who had successfully developed a business which, prior to his arrest, grossed about $3 million a year. He too expressed the opinion that defendant would pose no threat to the community upon release. Concluding that a prison term would result in long-term damage to defendant's family and business, Gitchoff designed a suggested rehabilitative program involving five years' probation with conditions including payment of a fine and donations to charity.

The court rejected these recommendations when, as noted above, it sentenced defendant to prison for four years. The court also apparently gave little weight to the reports' conclusions that defendant posed no danger to the community and that he had strong community ties, as it denied the request for bail pending appeal.

A review of the reporter's transcript reveals that the court, in denying defendant's motion, did purport to articulate its basis for denying bail. First, the court opined that defendant was a potential flight risk. The court noted: "We're in a different ballgame now. He's been sentenced to prison for a substantial period of time ... and I'm persuaded that he wouldn't give much pause to flee." Secondly, the court accepted the prosecutor's argument that defendant posed "some risk to society" because of his involvement in a drug distribution operation. With respect to defendant's potential risk to society the court explained: "I'm not persuaded that there's going to be this sudden metamorphosis ... [p] I think that what we're dealing with here are the results of some basic character flaws in Mr. Pipinos, and I am not persuaded there's going to be any change in that regard." Finally, the court concluded that while it was "not really in a position to comment on some of the pretrial motions," it nevertheless did not perceive "a substantial likelihood of success on appeal." (The trial court's comments are set out verbatim in the margin.) ⁴

Defendant filed a notice of appeal and a request for a transcript of the hearing. Thereafter, he petitioned the Court of Appeal for a writ of habeas corpus to compel the setting of bail on appeal. The appellate court summarily denied the writ. Upon defendant's petition for hearing in this court, we ordered the Director of Corrections to show cause before the Court of Appeal why the relief prayed for should not be granted. Following hearing on the matter, the Court of Appeal by opinion again denied the writ. We then granted defendant's subsequent (and second) petition for hearing in order to reaffirm and elaborate on our holding in Podesto, and, particularly, to explore the question of what constitutes an adequate statement of reasons for denying release pending appeal.

II

Defendant concedes, as he must, that there is no absolute right to bail on appeal (In re Podesto, supra, 15 Cal.3d 921, 929-933, 127 Cal.Rptr. 97, 544 P.2d 1297) since release after a felony conviction is totally within the trial court's discretion (Pen.Code, § 1272). ⁵ His principal contention is that the trial court failed to provide an adequate statement of reasons for denying bail pending appeal. We agree.

"California courts have long...