Podesto, In re

• Decision Date: 27 January 1976
• Docket Number: Cr. 18616
• Citation: 127 Cal.Rptr. 97,15 Cal.3d 921
• Court: California Supreme Court
• Parties: , 544 P.2d 1297 In re Alan Eugene PODESTO, on Habeas Corpus.

Page 97

127 Cal.Rptr. 97

15 Cal.3d 921, 544 P.2d 1297

In re Alan Eugene PODESTO, on Habeas Corpus.

Cr. 18616.

Supreme Court of California,

In Bank.

Jan. 27, 1976.

As Modified on Denial of Rehearing Feb. 26, 1976.

Donald C. Smaltz, Los Angeles, and Michael D. Scott, Beverly Hills, for petitioner.

Roger S. Hanson, Woodland Hill, J. Perry Langford and Stephen J. Perrello, Jr., San Diego, as amici curiae on behalf of petitioner.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Robert D. Marshall and Vincent J. Scally, Jr., Deputy Attys. Gen., for respondent.

TOBRINER, Justice.

In this case we must determine the criteria that trial and appellate courts in this state may properly consider in passing upon applications by convicted felons for release pending appeal of their convictions. ¹ Petitioner, relying on several distinct state and federal constitutional theories, contends that, except in capital cases, all such defendants are entitled to release pending appeal 'as a matter of right.' As we shall explain, we find this contention untenable and conclude that, as provided by Penal Code section 1272, the decision to release a convicted felon pending appeal generally rests in the 'discretion' of the court. Although petitioner also complains that section 1272's broad grant of 'discretion' invests the court with unbridled authority in this area, we explain that numerous judicial precedents disclose general guidelines for the exercise of such discretion, illuminating the various considerations that courts properly should look to in determining whether to grant release on appeal.

Despite the presence of these judicial guidelines, however, we recognize that appellate courts frequently have had difficulty in ascertaining whether a trial court in ruling upon an application for release pending appeal has focused on the appropriate criteria because a trial court has not been required to articulate the grounds upon which it has relied in denying such an application. In recent years, our court has had occasion to emphasize in a wide variety of contexts that governmental decisions which affect important individual interests should be accompanied by at least a brief statement of reasons explaining the basis for such decision. (See, e.g., In re Sturm (1974), 11 Cal.3d 258, 113 Cal.Rptr. 361, 521 P.2d 97; Topanga Assn. for a Scenic Community v. County of Los Angeles (1974), 11 Cal.3d 506, 113 Cal.Rptr. 836, 522 P.2d 12.) Applying the reasoning underlying these recent authorities, we have concluded that in the future a trial court in denying an application for bail on appeal should provide a brief statement of reasons for its ruling.

1. The facts of the instant case.

In August 1974, petitioner Alan E. Podesto (hereafter defendant) was stopped for an alleged traffic violation. When a search of the trunk of his automobile disclosed a large quantity of marijuana, he was arrested and charged with possession of marijuana for sale and sale of marijuana. (Health & Saf.Code, §§ 11359, 11360.) Shortly thereafter he filed a pretrial motion seeking to suppress the evidence upon which the charges rested. Defendant claimed that even though the search of the car trunk followed the officer's discovery of a small quantity of marijuana debris in the rear seat of defendant's automobile, the search was nonetheless illegal for lack of probable cause. ²

The initial magistrate agreed that the search was improper, suppressing the evidence and dismissing the charges against defendant. The People thereafter refiled the identical charges (see People v. Uhlemann (1973), 9 Cal.3d 662, 669, 108 Cal.Rptr. 657, 511 P.2d 609), and, after a second hearing before a different magistrate, the second magistrate ruled against defendant and refused to suppress the evidence. Defendant then sought suppression in the superior court; upon the denial of that motion he petitioned for a writ of mandate in the Court of Appeal. The appellate court denied the writ without opinion.

Defendant then entered a plea of guilty to the charge of possession of marijuana for sale and incurred a sentence to state prison for the term prescribed by law. Defendant has appealed from the conviction on the basis of the allegedly illegal search and seizure (see Pen.Code, § 1538.5, subd. (m)); the appeal is presently pending in the Court of Appeal.

Two days after sentencing, after filing his notice of appeal, defendant moved in the superior court for an order releasing him on bail pending appeal. In arguing for release, defense counsel pointed out that throughout the criminal proceedings defendant had made all appearances in court while released on his own recognizance, that defendant had a job opportunity available to him in the community and that counsel believed that there was a strong possibility that the conviction would be reversed on appeal. Nevertheless, the trial court denied the motion for bail on appeal, indicating in very brief fashion that its denial was based in part on the fact that defendant's pretrial petition for a writ of mandamus had been denied and also on the 'threat' involved in the matter. ³ After defendant's subsequent application for bail pending appeal was summarily denied by the Court of Appeal, ⁴ he filed the present petition seeking an order of this court granting release on appeal. We issued an order to show cause in order to explore the question of the continued viability and general clarity of past California decisions addressing the issue of 'bail on appeal.'

2. Penal Code section 1272, providing that bail on appeal is a 'matter of discretion' in felony cases in which imprisonment has been imposed, does not violate article 1, section 12 of the California Constitution.

Penal Code section 1272 provides today, as it and its predecessor statutes have for a century and a quarter, that a convicted felon who is sentenced to a term of imprisonment 'may be admitted to bail . . . (a)s a matter of discretion.' ⁵ Defendant contends initially that this clear statutory mandate conflicts with article 1, section 12 (formerly art. 1, § 6) of the California Constitution, which states in relevant part that 'A person shall be released on bail by sufficient sureties, except for capital crimes when the facts are evident or the presumption great.' ⁶ Defendant claims that article 1, section 12 ensures to all defendants in non-capital cases the availability of release on bail as a matter of right, both Before and After conviction.

Defendant recognizes that in a series of cases reaching back more than 100 years, this court has rejected this identical legal contention and has held that the state constitutional right to bail applies only before conviction. (See, e.g., In re Scaggs (1956) 47 Cal.2d 416, 418, 303 P.2d 1009; Ex Parte Brown (1885) 68 Cal. 176, 177, 8 P. 829; Ex parte Voll (1871) 41 Cal. 29, 31--33.) Defendant argues, however, that all of these cases were erroneously decided and that their fundamental rationale has been invalidated by more recent pronouncements of this court, particularly In re Underwood (1973), 9 Cal.3d 345, 107 Cal.Rptr. 401, 508 P.2d 721.

In Underwood, this court addressed the question of whether a prisoner who was charged with a non-capital offense could be denied bail on the ground that his release would pose a danger to the public. We answered that question in the negative, holding that the California Constitution granted an absolute right to Preconviction bail in non-capital cases, and did not authorize a 'public safety' exception to its provisions. Because Underwood did not involve a question of bail pending appeal, that case lends no support to defendant's contention.

In attempting to find support for his broad constitutional interpretation in Underwood, defendant cites one passage of the opinion which states: 'The purpose of bail is to assure the defendant's attendance in court when his presence is required, Whether before or after conviction.' (Emphasis added.) (9 Cal.3d at p. 348, 107 Cal.Rptr. at p. 403, 508 P.2d at p. 723.) As we discuss below, this is an entirely accurate statement, for California courts have long acknowledged that a primary purpose of bail after conviction is to assure that a defendant will not flee the jurisdiction. The quoted passage from Underwood does not, however, equate the right of bail pending appeal with the right of preconviction bail and, indeed, a separate portion of the Underwood opinion exlicitly recognizes the 'substantial differen(ce)' between a defendant's right to bail before and after conviction. (See 9 Cal.3d at p. 347, 107 Cal.Rptr. 401, 508 P.2d 721 fn. 1.)

Moreover, even if the language of Underwood could be construed to raise doubts as to the continued validity of the entire line of decisions attacked by defendant, such doubts should properly have been put to rest by this court's subsequent decision in In re Law (1973), 10 Cal.3d 21, 109 Cal.Rptr. 573, 513 P.2d 621. In rejecting a parolee's contention that he enjoyed a constitutional right to release on bail after being detained for an alleged parole violation, we carefully reviewed the language of article 1, section 12 (then art. 1, § 6) and recognized that the constitutional provision, by its own terms, was clearly intended to apply only to preconviction bail. As we stated in Law: 'The constitutional provision, although it first states that 'All persons' shall be bailable, then makes an exception 'for capital offenses where the proof is evident or the presumption (is) great.' The phrase 'the proof is evident or the presumption (is) great' can be relevant only as a limitation on the bailable nature Of a charged but unproven capital offense; otherwise the proof and presumption would have been conclusively and finally established. The provision thus purports to deal not with all persons in an unlimited sense but rather with all persons Charged with criminal...